IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           G.A.C. and K.G.C. were formerly in a common law relationship.  They have one child together, K.C., born [omitted for publication].

[2]           G.A.C., who presently has supervised parenting time with K.C., has brought an application for an order that he have joint guardianship, equal parental responsibilities and a specified schedule of parenting time.

[3]           K.G.C. asks that G.A.C.’s overnight parenting time be reduced and says that any parenting time which G.A.C. has in the evening or overnight should continue to be supervised.

[4]           K.G.C. has an older child from a previous relationship named R.  R. was born on [omitted for publication].

[5]           G.A.C. has an older child from a previous relationship named C.  C. was born on [omitted for publication].

[6]           The parties separated in May of 2014 when K.C. was not quite three years old.

[7]           Following their separation, the parties had an informal shared parenting arrangement.  They followed a schedule whereby in week one G.A.C. would have parenting time with K.C. from Thursday afternoon until early Sunday evening and in week two he would have parenting time with K.C. from Thursday afternoon until Friday at 7:00 p.m. and during the day on Sunday.

[8]           On March 23, 2015 an order was made by consent which requires G.A.C. to pay child support to K.G.C. for K.C. and which provides that the parties have “a shared parenting arrangement”.

[9]           Although the parenting schedule was not set out in a court order or written agreement, the parties followed the parenting arrangement consistently until May 2016.  Both K.G.C. and G.A.C. testified that they were able to successfully co-parent.

[10]        The shared parenting arrangement ended on Thursday, May 26, 2016.

[11]        K.G.C. testified that during the evening of May 25, 2016 her daughter R made a disclosure to her.  She testified that R told her that G.A.C., her step father, “touched me down there”.  She said that R told her that it happened about seven times and that some of those times she, R, “put his hand there herself.”

[12]        The next day, Thursday May 26, 2016, K.G.C. advised G.A.C. by text message at 7:59 a.m. that she would be keeping K.C. over the weekend.

[13]        Just after texting G.A.C., K.G.C. spoke with an intake worker at the Ministry of Family and Child Development (MCFD).  She then went to the Oceanside RCMP detachment.  She gave a statement to Cst. Caram, beginning at about noon.

[14]        That day K.G.C. exchanged several further text messages with G.A.C.  The message exchange shows that K.G.C. would not tell G.A.C. her reason for keeping K.C. from him and that G.A.C. became upset.

[15]        In the end, K.G.C. agreed by text message to meet G.A.C. outside her residence at 2:00 p.m. that day.  G.A.C. expected that he would be able get K.C. at that time.  G.A.C. arrived at the drive way of the residence shortly before 2:00 p.m.  Soon thereafter, K.G.C. and a friend arrived. 

[16]        At that time K.G.C. told G.A.C. that she would not allow him to take K.C. because she had reason to believe that he had touched her daughter R in a sexual way.  G.A.C. testified that he was shocked and became upset and angry.

[17]        The parties had a heated argument during which there was shouting, G.A.C. invaded K.G.C.’s space and K.G.C. pushed G.A.C.  The friend of K.G.C. called the police, who had already been told about the allegation against G.A.C. and that the parties would be meeting at K.G.C.’s residence.

[18]        Police officers attended to keep the peace.  G.A.C. left the property and K.C. remained with her mother.  A police officer told G.A.C. not to come back to the property while the police conduct an investigation.  He agreed and did not do so.

[19]        K.G.C. testified that on May 28, 2016, when she and K.C. were riding in the car, K.C. said some things to her which she thought might amount to a disclosure of sexual abuse.

[20]        During the evening of May 28, 2016, K.G.C. returned to the RCMP and provided a statement to Cst. Regush.  She told the officer that when driving past the Errington Store earlier that day K.C. said to her that her dad takes her there.  She told the officer, that, among other things, K.C. said that her dad’s friends come over, that boys have long things they pee from, that some are longer than others and that she has seen her dad’s when he was going to the bathroom.  K.G.C. told Cst. Regush that K.C. also spoke of a secret and said she could not tell her.

[21]        MCFD became involved.  On May 30, 2016, a social worker requested that G.A.C. sign a MCFD Safety Plan stating that he would not have any direct or indirect access with R or K.C. until MCFD could further assess the matter.

[22]        G.A.C. signed the Safety Plan without having obtained any prior legal advice.  The social worker gave G.A.C. no additional information as to the allegations against him.

[23]        On May 31, 2016, Cst. Gueulette took a statement from R at the Oceanside RCMP detachment.  Her statement was recorded.  The audio recording was played in court during the hearing and a transcript of the recording was tendered in evidence. 

[24]        During her police interview, R stated, among other things, the following:

[25]        In the course of giving her statement, R said “I don’t remember” and “I don’t know” many, many times.  She said “I have a really bad memory” at least three times.

[26]        The RCMP submitted a Report to Crown Counsel for the purpose of Crown deciding if charges against G.A.C. would be approved in respect of the allegations made by R.

[27]        The matter was reviewed by senior Crown Counsel who decided that he was unable to approve charges of sexual touching/sexual interference against G.A.C.

[28]        A memo written by the prosecutor is contained in the police file which is in evidence before me.  In the memo, the prosecutor writes, in part, as follows:

[29]        On June 13, 2016, Cst. Regush of the Oceanside RCMP requested the assistance of the Island District General Investigation Section (ID-GIS) to obtain a statement from K.C., who was four years old.  Cst. Bonnet, a member of ID-GIS, was assigned to conduct a “Step-Wise interview”.

[30]        After having some difficulty contacting K.G.C., Cst Bonnet was able to interview K.C. on June 14, 2016.

[31]        Despite considerable effort during the interview, Cst. Bonnet obtained no disclosure from K.C.

[32]        That was the end of that investigation.  Understandably, the RCMP did not propose any charges against G.A.C. in respect of K.C.

[33]        Clearly it was very difficult for G.A.C. not to get K.C. on May 26, 2016 as scheduled.  G.A.C. sent text messages to K.G.C. on May 27 and 29, 2016 asking to be able to see K.C.  At this time there were no restrictions precluding him from sending these requests.

[34]        On June 10, 2016, G.A.C. sent a text message to K.G.C. asking her to tell K.C. that he loves her and asking if he can give her a birthday present.  This request for indirect contact with K.C. was in violation of the MCFD Safety Plan.  He sent another message on June 14, 2016 again asking if he could give a birthday present to K.C.

[35]        G.A.C. retained a lawyer, Mr. Rivers.  On June 10, 2016, Mr. Rivers sent the first of several letters to MCFD.  In the first letter he advised that G.A.C. had retained him to assist in resolving matters respecting his parenting time with K.C.  He also asked what MCFD’s position was and what the reasons were for denying G.A.C. his parenting time.

[36]        Mr. Rivers received no response to his several letters to MCFD.  On September 1, 2016, Mr. Rivers wrote yet another letter to MCFD.  In that letter he stated that MCFD must be aware of Crown Counsel’s decision not approve charges against G.A.C. and asked again to be advised of the status of MCFD’s file.  He advised that if he did not receive a response by September 7, 2016, G.A.C. would withdraw his consent to the Safety Plan.

[37]        On September 21, 2016, Mr. Rivers wrote again to MCFD confirming that he had still received no response from anyone at MCFD at any time.

[38]        Up until this time, G.A.C. had not seen K.C. or received any information as to how she was doing since before the shared parenting arrangement ended in May, 2016.

[39]        On September 27, 2016, four months after he had last had parenting time with K.C., G.A.C. obtained an Interim Court Order from Judge Saunders.  The Order provided that he would have parenting time with K.C. the coming weekend from Friday at 5:00 p.m. until Sunday at 5:00 pm.  The parenting time was to be supervised by G.A.C.’s grand-parents.  The matter was adjourned to Monday October 3, 2016.

[40]        Despite the fact that K.G.C. was in court with her former lawyer when the Order was made on September 27, 2016, she denied G.A.C.’s weekend parenting time.

[41]        On October 3, 2016, the parties and their respective lawyers appeared in court before Judge Saunders again.  Judge Saunders ordered make up parenting time on the next weekend from Friday at 5:00 p.m. until Monday at 5:00 p.m. as well as parenting time from Friday, October 15, 2016 at 5:00 p.m. until Sunday, October 16, at 5:00 p.m.  Judge Saunders also ordered that K.G.C. give security by paying the sum of $200.00 to the Provincial Court, in trust, respecting any future breach of Court Order.  The matter was adjourned to the Judicial Case Manager to fix a date for continuation.

[42]        The matter was next in court before Judge Saunders on November 14, 2016.  At that time Judge Saunders ordered that G.A.C. was to have supervised parenting time with K.C. every other week from Friday at 5:00 p.m. until Monday at 5:00 p.m.  The parenting time was to be supervised by any of G.A.C.’s mother, grandfather or grandmother.  The Order also provided, as did the two earlier Orders, that G.A.C. was not to bathe K.C. or sleep in the same bed as her.

[43]        On one occasion shortly after the Order was made, G.A.C. bathed K.C.  He did so with his mother present.  It seems that at the time he did not clearly understand that he was contravening the Order.  This has not happened again.

[44]        A further Order was made by Judge Gouge on November 25, 2016.  That Order, which was by consent, simply shifted G.A.C.’s parenting weekend schedule by one week to accommodate G.A.C.’s work schedule and provided that he would have K.C. from 3:00 p.m. on December 24 to 11:00 a.m. on December 25, 2016.

[45]        G.A.C.’s mother, who lives in Saskatchewan, stayed on Vancouver Island for several months to allow G.A.C. to exercise his parenting time as ordered.

[46]        In or about April 2017, G.A.C.’s mother returned to Saskatchewan.  By that time his grand-parents were not physically capable of acting as supervisors.  Consequently, the Order was then changed to allow G.A.C.’s girlfriend, B.B., to act as his parenting supervisor.  Unfortunately, B.B.’s employment only allows her one weekend in four to be available to supervise.  Accordingly, as of recently, G.A.C.’s parenting time has been reduced to one weekend in four.

[47]        On April 6, 2017, G.A.C. received a letter dated March 31, 2017 from a social worker with MCFD advising that she had completed her assessment as required by the Child, Family and Community Service Act regarding concerns that his child may be in need of protection.  She states that based on the results of her assessment K.C. is not in need of protection as reported.

[48]        I will now consider the law as to the approach the Court is to take in cases, such as the one before me, where allegations of sexual abuse are made.  The law is clear, that, as set out in the case of Leveque v. Leveque (1983), 1983 CanLII 717 (BC CA), 54 B.C.L.R. 164 and confirmed in more recent British Columbia decisions, in cases involving the welfare of children, the question is not whether the specific allegations of abuse by a parent or other person are proven, but whether on the whole of the evidence there arises a real risk of harm to the child if access is given without protection against the risk.

[49]        In M.H. v. A.M. 2016 BCSC 1694, Mr. Justice Skolrood follows the Leveque decision and, at paragraph 73, writes as follows:

[50]        In the case before me, the parties take no issue with the threshold admissibility of the evidence contained in the police report and in the testimony of K.G.C. as to statements made by R and K.C.  The question is the reliability of their statements.

[51]        In the case of S.F.R v. E.C.R. 1997 CanLII 741 (BCSC), Madam Justice Dillon sets out the indicia of reliability of a child’s evidence as established by R. v. Kahn (1990) 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92.  At paragraph 43 she writes as follows:

[52]        Upon considering R’s statement with these indicia in mind, I have significant concerns about its reliability.  I note the following:

[53]        According to K.G.C., on May 28, 2016, just three days after R’s disclosure, K.C. said some things to her which caused her to wonder if K.C. had been sexually abused.  I find the timing of this to be somewhat suspicious.

[54]        If, as may well be the case, K.C. indeed said what her mother indicates she said, the fact is that K.C. made no allegation that G.A.C., or anybody else, did anything inappropriate to her, sexually or otherwise.

[55]        I find that the statements reportedly made by K.C. could be explained by observations she made of C and her father while urinating.

[56]        I believe that it is unlikely that K.G.C. would think, based on K.C.’s statements, that K.C. had been sexually abused if not for disclosure made by R three days before.

[57]        In assessing the testimony of K.G.C. and the evidence contained in the police reports, I must consider the testimony of G.A.C.

[58]        I found G.A.C. to be an excellent witness.  He consistently gave his evidence in a very responsive, clear and forthright manner.  He answered questions carefully and presented as being very honest. 

[59]        At no time did I feel that he was either exaggerating or minimizing.  I found him to be open and candid.  In cross examination by K.G.C. he readily admitted things that may be seen as being against his best interests.

[60]        I have no reason to doubt the truth or accuracy of what G.A.C. said in court.  I accept his evidence.

[61]        On all of the evidence, I am not satisfied on a balance of probabilities that G.A.C. touched either R or K.C. in a sexual manner.

[62]        The law is clear that it is not necessary that I, as the judge, come to a definitive conclusion as to whether any of the alleged abuse occurred.  Rather, I must assess whether there would be a real risk of harm to K.C. if I am to allow G.A.C. unsupervised parenting time with her.  In the course of her submissions I asked K.G.C. if she thought that allowing G.A.C. unsupervised parenting time with K.C. would result in a real risk of harm to her.  After some hesitation, K.G.C. candidly said that any risk may not amount to a real risk.

[63]        Without any hesitation, I find that allowing G.A.C. to have unsupervised parenting time with K.C. will not cause her a real risk of harm.

[64]        Accordingly, I find that there is no reason to place any restrictions or conditions on G.A.C.’s parenting time.

[65]        Going forward, his parenting time with K.C. will not be supervised in any way.

[66]        I declare that both K.G.C. and G.A.C. are guardians of K.C.

[67]        I order that K.G.C. and G.A.C. are to share equally the parental responsibilities set out in section 41 of the Family Law Act.  In doing so, I am mindful of the fact that prior to the allegations being made in May of 2016 they were able to co-parent successfully.

[68]        Finally, I must decide on the appropriate parenting schedule.  That is, a parenting schedule which will be in the best interests of K.C.

[69]        K.G.C. advised the Court that her preference would be for K.C. to spend fewer overnights with her father than she has in the past.  She also said that she would be okay with the informal parenting schedule followed by the parties after separation and before the allegations were made.

[70]        G.A.C. asks for a schedule which is similar to the former informal schedule but which provides him with some extra parenting time to make up for the time he has lost in the last year.

[71]        The informal schedule previously followed by the parties was based upon G.A.C.’s work schedule and on the parenting schedule which he had with his son C.  I understand that neither G.A.C.’s work schedule nor his schedule with C has changed.

[72]        After careful consideration, I have decided to order a parenting schedule which provides G.A.C. with some more parenting time than he had in the past but not quite as much as what he now requests.

[73]        The parenting schedule with respect to K.C. will be as follows:

[74]        The parties are to make best efforts to agree on a schedule which allows K.C. to spend significant time with each parent over her Christmas vacations and some time with each parent over the Christmas Eve, Christmas Day and Boxing Day period.

[75]        In the event that, despite their best efforts, the parties are not able to agree on a Christmas parenting schedule. either of them may apply to the Court for directions.