IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Applicant W. S. and the Respondent C. S. are the parents of an infant son named Z., who was born on (d.o.b.), 2014. On January 13, 2017, the Honourable Judge Solomon of this court made an order for the parties to share parenting time for the child on a “week on, week off” basis.

[2]           Less than three months later, on May 1, 2017, the Respondent appeared before Judge Solomon asking for an ex parte order, alleging that the Applicant was physically abusing the child. In particular it was alleged that the Applicant had disciplined the child by making him stand under a cold shower and that he had taken the child on a car ride and when the child returned he was very afraid. At the trial of this matter evidence was heard that the Applicant also disciplined the child by putting a bar of soap in the child’s mouth.

[3]           The Applicant has admitted that all of these allegations are true, although he denies that he put the child in the shower for as long as the witness says he did. On May 1, 2017, Judge Solomon made an ex parte order suspending the Applicant’s parenting time. He has made a Protection Order under section 183 of the Family Law Act and that order has been continued by subsequent orders until this hearing could conclude.

[4]           This is a case of differing perspectives of what has occurred. The Applicant asks for things to go back the way they were under Judge Solomon’s first order, except that he believes that he should be responsible for making decisions in the child’s life because he is more mature that the Respondent. He has accused her of being manipulative and asserts that he is being denied his rights. He says that his actions are nothing more than parenting mistakes and that he can be trusted with his child.

[5]           The Respondent sees matters differently. She views the Applicant’s actions as abuse of the child and as violence against the child. Her focus is on protection of her three year-old son and on his right to be safe and protected from further abuse. She does not want to exclude the Applicant from the Child’s life, but she is afraid that if the Applicant is left alone with the child, further abuse will occur. She says that the Applicant has an inability to control his anger and she asks that the Applicant’s parenting time with the child be supervised in order to keep the child safe.

[6]           The Applicant is 40 years of age and the Respondent is 26 years old. According to the reasons for judgement of Judge Solomon pronounced on January 13, 2017, they resided together from sometime in 2012 until August 1, 2015. In the hearing before Judge Solomon it was acknowledged that there was some violence in the relationship, but both of the parties disagreed as to its extent. The Applicant admitted only to pushing the Respondent on one occasion, while the Respondent claimed that the physical abuse in the relationship was more significant.

[7]           At the time of the first hearing before Judge Solomon in January of 2017, the parties were subject to an order of this court made on October 28, 2015 by the Honourable Judge C. J. Rounthwaite. When Judge Rounthwaite’s order was made, the Respondent was living in Nanaimo. Judge Rounthwaite’s order provided that while the Respondent was living in Nanaimo, the child was to live with her, but that when she returned to live in the Fraser Valley, the parties would share parenting time. Despite this, the child resided mainly with the Applicant from December of 2015 to February of 2016.

[8]           In early 2016, according to Judge Solomon’s findings, the Respondent became concerned that the child was not being properly cared for by the Applicant. She was working in Nanaimo at the time, but she left her employment there and returned to Mission. Despite Judge Rounthwaite’s order, the Respondent limited the Applicant’s parenting time because of her concerns for the child. Judge Solomon did not set out what those concerns were in his reasons for judgement. He ordered that the parties would adhere to an agreed schedule leading to a shared parenting schedule, with the child living with each party during alternating weeks.

[9]           On July 25, 2016, the parties were ordered by the Honourable Judge Chettiar of this court to submit to hair follicle testing within 30 days of the order. The Respondent has complied with this order. The Applicant decided that he did not need to do so and that a urine test would be sufficient. This is significant because the Respondent alleges that the Applicant abuses cocaine. One of the Applicant’s witnesses admitted that she and the Applicant had used cocaine together once at his business premises. The Applicant testified that he does not presently use cocaine and became very angry at the Respondent’s counsel for even asking about this.

[10]        At the time of the hearing before Judge Solomon, the Applicant was in a new relationship. He was living with a person named L. R. and Judge Solomon saw her presence in the Applicant’s home as beneficial to the child. She is an early childhood education professional. In the ex parte hearing before Judge Solomon held on May 1, 2017 she testified that she began dating the Applicant in January of 2016 and she had been living with him at the time of hearing in January of 2017. That relationship ended in late April of 2017.

[11]        On May 1, 2017 Ms. R. sought out the Respondent. The two had not been friendly previously, and in fact the Respondent had made a phone call that had cost Ms. R. her employment. Nevertheless, Ms. R. went to the Respondent’s place of employment that morning because she was concerned about how the Applicant was treating the child. She told Judge Solomon:

[12]        At the hearing on this application, Ms. R. testified that this had in fact occurred and that the child was held under the cold water from the shower for a few minutes. The timing of this allegation might be suspicious, were it not for the fact that in his evidence, the Applicant agreed that this incident had occurred, but that it was not for as long as Ms. R. says it was for.

[13]        At the hearing before Judge Solomon on May 1^st, and at this hearing, Ms. R. described a second incident which she documented. She said that on April 8^th, the Applicant punished the child by refusing to feed him his dinner. The next day, April 9^th, the child had another crying spell. The Applicant took the child for a drive and the two were gone for about a half-hour. She testified that when the two of them returned, the child was very distraught and was clinging to her. When the child began to whine, she says that the Applicant said “you know what happens if you whine again.” From the child’s demeanour she was concerned that the child had been abused in some fashion. She agreed that she did not know what had happened on the car ride, and that the child never disclosed to her what had happened. Once again, the Applicant did not deny this incident, and testified that on the car ride he spoke to the child in a very stern manner, with the use of some profanity thrown in. He denied that there was any physical abuse of the child on the car ride.

[14]        Ms. R. recalled a third incident that was not mentioned at the hearing before Judge Solomon, but that the Applicant agreed had taken place. She said that the Applicant would discipline the child by putting a bar of soap in the child’s mouth. The Applicant agreed that, in his words, “I did the bar of soap thing” and he said that this was a mistake on his part.

[15]        Ms. R. also said that the Applicant would often throw the child down on the bed very roughly. He denied doing so roughly. She also said that at a court appearance in August of 2016, the Applicant attempted to intimidate her by standing in front of her, with his face very close to her face, and that he closed his fist at the time. The Applicant says that if this happened it was because of the narrowness of the hallways at the courthouse and not because of any intention on his part to intimidate the witness. (The Applicant suggested that the video camera records from August, 2016 be checked. Unfortunately these recordings are no longer available.) Ms. R. testified that she is afraid of Applicant and is worried that he will retaliate in some manner because of her testifying in this matter. In response, he said that she had nothing to fear from him. He said that she was safe at the courthouse and pejoratively referred to the Sheriffs present at the court house as “lap dogs” who were everywhere and court protect her.

[16]        In his submissions, the Applicant’s characterization of Ms. R’s evidence was that she was saying that he was an exemplary parent. In listening to her evidence again, what she said was that she took care of the child when he was at work. In response, the Applicant said “I’m not Chinese. I can’t take my child to work with me.” She said that when he got home from work, he would bathe the child and read him a story, and that she did not question his love for the child.

[17]        The Respondent testified that when she learned of what Ms. R. witnessed, she became very concerned because she knows that the Applicant “has a hot temper” and she is afraid of further instances of abusive discipline at the hands of the Applicant. She said that she wants the Applicant to have a role in the child’s life, but that she feels that his time with the child needs to be supervised, especially now when the child is so vulnerable and is not old enough to accurately report any physical or psychological abuse that is not witnessed. She says that the Applicant has a hard time understanding people and loses his temper and she does not want her infant son to be on the receiving end of the Applicant’s anger when that happens.

[18]        The Applicant testified about his outrage over the circumstances of how he learned about the Protection Order made by Judge Solomon on May 1^st, which involved police attending to remove the child from his care. He testified that since the ex parte order was made, he has taken a number of steps to improve his parenting skills. On May 1^st, the day of the order, he completed the Diabetes Canada Food Skills for Families Program. A letter from the Abby Dads Father Involvement Program, dated June 7^th of this year, confirms that he participated at recent “Dad Chat and Foodskills - Cooking With Dads” sessions. The author of the letter was of the opinion that the Applicant “is highly motivated to restore consistent access to his son.”

[19]        A letter from the Mennonite Central Committee dated October 24, 2017 confirms that the Applicant has fully participated in a 15 week course called “Home Improvement Group for Men”, part of the EndAbuse program of the Mennonite Central Committee of British Columbia. Two letters from Abby Dads dated October 27, 2017 confirm that the Applicant has attended the eight week Anger Awareness Program.

[20]        The Applicant states that the Ministry of Children and Families have investigated this matter and have found no wrongdoing on his part. He has provided a letter from the Child Protection Worker assigned to this matter, dated June 12, 2017, which states that “Based on the results of my investigation Z is not in need of protection” and that the writer sees no need for MCFD involvement. The letter goes on to recommend that the Applicant take programs offered by Abby Dads. At the time this letter was written, the Protection Order had been made and Judge Solomon had prohibited the Applicant from having contact with the child. Any protection concerns that existed when the child was in the Applicant’s care no longer existed because the child was no longer exposed to the conduct on the part of the Applicant that was initially complained about. The assertion of the Applicant that the MCFD letter means that he no longer poses a risk to the child is not in fact what the letter says.

[21]        In the course of the Applicant’s testimony, he disclosed that he has two outstanding criminal charges, one of which involves the Respondent, and another involves an allegation involving a former employee of his. The Applicant was unsure of the status of these files, and it was decided that, rather than speculate, the record of proceedings on each file would be reviewed so that their status could be accurately determined. The first of these is a change of sexual assault against the former employee, contrary to section 271 of the Criminal Code. That offence was alleged to have occurred between November 24, 2014 and April 30, 2015. That matter is set for trial on December 19 and 20, 2017, to continue on January 4, 2018. He is also charged with intimidation of a witness contrary to section 423.1 of the Criminal Code. The witness he is charged with intimidating is the Respondent. The Applicant had a court appearance set for November 30, 2017. At that time the matter was sent to the Judicial Case Manager to set a trial date. I have reviewed the record of proceedings for these files to ensure that any order that is made on these applications will not conflict with any orders on the criminal files.

[22]        In his book High Conflict People in Legal Disputes, (2006, Janis Publications Inc.), author Bill Eddy, a lawyer and clinical social worker, writes (at page 13):

[23]        This has relevance in this case because of concerns raised by the Respondent and by Ms. R. that the Applicant is unable to control his anger. It was apparent that this is an issue for the Applicant, based on his conduct during the court proceedings. For most of the latter part of the proceedings, the Applicant was able to show some restraint, but on the first day of the hearing and at the start of the second day, the Applicant displayed considerable difficulty in controlling his behaviour. He used profanity, interrupted the proceedings, was very disrespectful to the Respondent’s counsel and was on the edge of being found in contempt of court on occasion. After the morning break on the second day of the hearing, he apologized to counsel for some of his conduct and the proceedings went more smoothly.

[24]        The Applicant was asked about his angry courtroom demeanour and he said that he chooses to share his emotions with people who don’t like to see them. On the first day of the hearing two of the Applicant’s friends testified as to the Applicant’s character. D. R. testified that he has known the Applicant for four years and has never seen the Applicant hit or abuse this child. Mr. R. is the father of two children and is the President of a Parental Advisory Council. He sympathized with the Applicant and was concerned that this court may be giving preference to the Respondent because of his belief that fathers are often treated less fairly in family litigation. Mr. R. was not asked if he was aware of the manner in which the Applicant has admitted to disciplining this child, and I did not interpret anything in his evidence as condoning this type of treatment of a child, or suggesting that this type of discipline of a three year-old was not somehow within a father’s rights.

[25]        The Applicant’s friend N. G. is a nurse and is the mother of three sons. She testified that she has also never seen the Applicant use violence on this child. She testified that to her knowledge he was a good parent. She said that she had only seen the Applicant use cocaine once. She described the Applicant as “very high energy” and as someone having “a big personality.” She was not asked if she was aware of the Applicant’s actions in placing the child under a cold shower or of putting soap in his mouth or of whether or not she would have concerns about this.

[26]        As was stated earlier, the Applicant and the Respondent have markedly different perceptions of what has happened to their child, even though they agree for the most part of the facts of this case. The Applicant agrees that he held his child under a cold shower (though for less time than the witness says) and that he made the child taste soap. He describes this as parenting mistakes. The Respondent sees this as child abuse. The Applicant says that by reporting these actions, the Respondent is manipulating the system. The Respondent sees her actions as preventing further abuse of the child. The Applicant sees what has occurred as having his child taken away from him for the third time. The Respondent sees this as rescuing her child from an abusive environment and placing him in a place of safety.

[27]        There has been some discussion in this case about “parents’ rights” and “father’s rights”. The focus of parents of small children should be less about their rights and more about their responsibilities. It is the child’s rights that everyone should be concerned about. One of the most important of these is the child’s right to be safe, secure and protected from violence. This is made clear in a number of places in legislation. Section 37 of the Family Law Act requires that any order made by a court concerning guardianship, parenting arrangements or contact with a child must consider the best interests of the child who is the subject of that order. The importance of the child’s safety is made clear in subsection (3) which states:

[28]        Subsection (2) sets out what a court must consider in determining what is in the best interests of a child. This includes the following:

[29]        Child protection concerns are also addressed in section 13(1) of the Child Family and Community Service Act, which sets out when a child is in need of protection. At the top of the list is “(a) if the child has been, or is likely to be, physically harmed by the child's parent”. Under section 14, a person who has reason to believe that a child needs protection is under a duty to report those concerns to the Ministry of Children and Families.

[30]        The law recognizes that a reasonable amount of force is allowed when it comes to the discipline of children, and to that end, the Criminal Code of Canada allows parents to use reasonable force on a child for the purposes of correction. Section 43 of the Code reads as follows:

[31]        Here, the Applicant is not charged criminally for these acts of discipline. But a consideration of this section is helpful in deciding whether or not his actions in this case are minor parenting mistakes as he asserts, or if they are more serious as the Respondent alleges.

[32]        The Supreme Court of Canada, in Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 SCR, has said that in considering what is reasonable corrective force, the law does not excuse “outbursts of violence against a child motivated by anger or animated by frustration.”  It protects “only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour.” The court said that the child must be capable of benefitting from the discipline. In other words, the law does not excuse excessive force on a child who is too young to understand why the punishment is happening to him or her. The court also said that the law condones only the mildest forms of corrective force, and case law contains many examples where corrective force to a lesser degree than used in this case has resulted in a conviction for assault.

[33]        There was a time in Canada when physical discipline of a child was condoned and seen as the norm. Today, a more enlightened and reasonable approach prevails such that no benefit is found in this type of discipline of a three year old. All of this puts in perspective what has happened in this case. The discipline imposed on this child by the Applicant is not simply a series of parenting mistakes, and it is not his right to use this child as something to be experimented on while he figures out what is and what is not within the bounds of reasonable parental discipline.

[34]        The Respondent’s perception of how this child was treated is the correct one. Ms. R. was not only correct in reporting her concerns; she was under a duty to do so. She did the right thing by reporting the matter. The Applicant’s suggestion that Ms. R. reported this out of some motivation to get even with him and not out of concern for the child seriously calls into question his judgement and his ability to recognize what is best for this child.

[35]        The test on review on an ex parte order is this: If the judge who made the order (Judge Solomon in this case) had been aware of the additional evidence provided at this hearing that was not before him when he made the order, would he still have made the order? In this case, everything that was before Judge Solomon was confirmed at this hearing, as well as further allegations. The Applicant agrees that all of this happened (other than the duration that he placed the child in the cold shower). Additional allegations have been made that the Applicant admits. Applying this test, I am satisfied that if Judge Solomon had been aware of the additional evidence presented at this hearing, he would still have made the protection order that he made.

[36]        Protection Orders were created under the Family Law Act. They replace what used to be known as “Restraining Orders” under the old Family Relations Act. They are made to protect an at-risk family member from family violence. Under the definitions set out in the Act, both the Respondent and the child fall within the definition of at-risk family members. The purported discipline of the child falls within the definition of family violence. (a) The Applicant’s characterization of these as part of a parental learning curve, (b) his reaction of anger towards anyone who challenges his point of view, and (c) his perception that these challenges are an attack on him and his rights and not valid concerns for the safety of the child; all support the conclusion that the risk to the child is an ongoing one.

[37]        It is appropriate under these circumstances that the protection order in this matter should continue. The Respondent has made it clear that it is not her intention to remove the Applicant from the child’s life. She just wants to ensure that her child will not be mistreated. The Protection order that is now being made will reflect this intention. It will be ordered as follows:

[38]        The Respondent does not want to keep the child from the Applicant, but is concerned that, without proper monitoring, the Applicant will once again lose control of his emotions and harm the child. She is troubled by that fact that he does not see his anger as a problem and that it is really other people’s problem for not liking it when he gets angry. The Respondent asks that the Applicant’s parenting time start in small increments and that it increase gradually, and that it be supervised. The Applicant is willing to have his parenting time begin with shorter visits and increase over time, but he does not understand why it needs to be supervised. He sees this situation as one in which the Applicant is manipulating the system and he sees the request for supervised parenting as an over-reaction to his parenting mistakes.

[39]        Under section 45(3) of the Act, a court may order that parenting time with a child, be supervised if the court is satisfied that supervision is in the best interests of the child. As was stated earlier, section 37(3) of the Act requires that for an order to be in the best interests of a child, it must protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. Supervised parenting time or contact has been ordered as being in the best interests of children in the following situations:

[40]        I am satisfied that this is an appropriate case for an order for supervised parenting time. The FLA requires that orders for parenting time be made in the child’s best interest and that this requires that the child be protected “to the greatest extent possible” from physical harm. I do not believe that the Applicant would intentionally cause physical harm to this child. The concern is that more “mistakes” would be made in reaction to the child’s crying or other disapproved behaviour. There is an unspoken fear that, if left unsupervised with the child, the Applicant may experiment with other inventive ways of disciplining this child, and that these will be equally as abusive as cold showers and soap in the mouth.

[41]        Based on his past conduct, it is likely that the Applicant would perceive any constructive criticism of his parenting as manipulation on the part of the Respondent or an attack on his “rights”, rather than concern for the child. His quickness to anger and his belief that others should have to be subjected to his anger whether they like it or not makes it necessary that there be someone more objective watching out for the child. I am satisfied that the Respondent is correct in her position that supervision is necessary in the best interests of this child.

[42]        In his submissions, the Applicant submits that the Respondent is unable to act responsibly and that he should have all of the parental responsibilities for this child. He says that because he is 15 years older than her, he is more mature. He says that as someone with a minor in psychology, he is smarter than the Respondent, who he perceives as someone who is simply trying to manipulate the system. He has also accused her of trying to get back into his life. He sees himself as unfairly vilified.

[43]        These arguments illustrate the reason why it is in the best interests of the child for the Respondent to have all of the parental responsibilities for this child. His focus is self-centred. He sees what has happened as an attack on him, and fails to demonstrate an appreciation of why his conduct towards the child is anything more than a series of minor mistakes. Conversely, the Respondent’s approach to parenting is a child-centred one. Her actions have been taken with protection of the child in mind. Although she is the younger of the two parents, her conduct and behaviour has demonstrated more maturity when it comes to parenting this child. For these reasons, she will have all of the parental responsibilities for the child.

[44]        It should be recognized that the Applicant has made sincere efforts to address some of the troubling issues that have impeded his abilities as a parent. He has engaged with the Abby Dads program, an outstanding resource provided by Abbotsford Community Services that teaches fathers how best to support the emotional development of their children. His participation in the Abby Dads Anger Awareness program shows some insight into his acknowledging that his anger may be a problem and in a willingness to improve his life in this regard.

[45]        It is unfair to leave the Applicant with a nebulous promise that someday, if things get better, things will return to the way they were before Judge Solomon’s protection order was made. The expectations should be more specific than that so that this child gets a parent who is not weighed down with resentment. In this regard, there are three areas which must be addressed:

[46]        These guidelines are intended to lead to conditions conducive to the best interests of this child. They are meant to be child-focused to create a better environment for this child to grow up in, rather than as any apportioning of blame. On the first day of the hearing, the Applicant said that he did not want his child to grow up having his personality. This was an insightful recognition on his part that children mirror the behaviour they see in their parents. They become sponges of their parents’ character assets and defects. If the Applicant was sincere about what he said, the recommendations set out are meant to help him achieve that.

[47]        For the foregoing reasons, the following order is now made (which is in addition to the protection order set out in paragraph [37]):