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G.R.W. v. K.M.O., 2020 BCPC 141 (CanLII)

Date:
2020-07-27
File number:
F12798
Citation:
G.R.W. v. K.M.O., 2020 BCPC 141 (CanLII), <https://canlii.ca/t/j8xb0>, retrieved on 2024-03-29

Citation:

G.R.W. v. K.M.O.

 

2020 BCPC 141

Date:

20200727

File No:

F12798

Registry:

Abbotsford

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

G.R.W.

APPLICANT

 

AND:

K.M.O.

RESPONDENT

 

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE K. D. SKILNICK



 

Counsel for the Applicant:

S.T. Taylor

Counsel for the Respondent:

J.S. Steiner

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

July 24, 2020

Date of Judgment:

July 27, 2020


Background

[1]           The Applicant G.R.W. and the Respondent K.M.O. are the parents of the two children who are the subject of this Application: their daughter K.M.W., born [omitted for publication] and their son M.D.W., born [omitted for publication]. The parties began their relationship sometime in either 2007 (according to the Respondent) or 2008 (according to the Applicant.) Given the birthdate of the older child, the Respondent’s estimate is more likely. At the time, the Applicant was 22 years old and the Respondent turned 18 in January of 2008.

[2]           The parties separated in 2013 and on June 23, 2015, an order was made in this Court by the Honourable Judge S. L. Point, which recognized that the parties were both guardians of the children. It also ordered that they would share parental responsibilities and that parenting time with the children would be shared equally, as set out in that order.

[3]           Subsequent to the separation, the Applicant married his present wife, J.W., and the two of them are the parents of a [omitted for publication] year old son.

[4]           In Reasons for Judgement which will subsequently be referred to in greater detail, the Honourable Judge K. Mundstock of this Court came to the conclusion that the parties had co-parented the children up to February 28 of this year. In oral testimony given on another application in this matter, the Respondent testified that, prior to February 28, 2020, there were no issues with parenting time. Since February 28, 2020 however, the Applicant has not seen the children in person.

[5]           Under the shared parenting time arrangement, the children returned to the Respondent on February 28. On March 6, 2020, the Respondent applied for a Protection Order under section 183 of the Family Law Act prohibiting the Applicant and his wife from having any contact or communication with the children and suspending the Applicant’s parenting time with the children. That Order was made without notice to the Applicant. It was made by the Honourable Judge M. Jette, based on allegations made by the Respondent that the Applicant and his wife had slapped the older child on the face and had used other forms of physical discipline on the children.

[6]           The Applicant brought an application to set aside the Order of Judge Jette. By this time, the procedure set out in the Court’s pandemic protocols were in place and in a telephone hearing on March 30, 2020, the Honourable Judge Mundstock found that the application met the criteria for urgency and ordered that the matter be set down for hearing. That hearing was held before Judge Mundstock on May 6, 2020. Judgement was reserved and written reasons were handed down on June 3, 2020. Judge Mundstock set aside the Order of Judge Jette. She also made conduct orders in the following terms:

Ms. O. and Mr. W. will:

(a)         put the best interests of their children before their own;

(b)         encourage the children to have a good relationship with the other parent and speak to the children about the other parent and the other parent’s partner in a respectful manner; and

(c)         make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children.

Ms. O. and Mr. W. will not:

(a)         question the children about the other parent or time spent with the other parent beyond simple conversational questions;

(b)         discuss with the children any inappropriate adult, court or legal matters; or

(c)         blame criticize or disparage the other parent to the children.

Ms. O. and Mr. W. will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussion in front of the children concerning family issues or litigation.

Ms. O., Mr. W. and Mrs. W. will not use any form of physical discipline of K. and M.

(Emphasis added).

[7]           On July 13, 2020 the Applicant filed a Notice of Motion setting out the relief he is asking for at this hearing. He is seeking an order for resumption of his parenting time with the children, for compensatory parenting time, for an adjustment of the parenting time as requested in his Notice of Motion, and for an order under section 228 that the Respondent be fined for her wilful denial of his parenting time.

[8]           On July 14, 2020, the Respondent filed a Notice of Motion setting out the relief that she is seeking at this hearing. She asks for “and order varying the order of the Honourable Judge Point of June 23, 2015, to amend the parenting time on an interim basis, in accordance with the best interests of the children.”

Conduct of the Parties under Judge Mundstock’s Orders

[9]           The Respondent has breached portions of the conduct order by discussing this litigation with the children and by questioning the children about their parenting time with the Respondent, specifically about whether or not they want to have any and under what conditions. This is not in dispute, she admits as much in her own affidavit. This will be discussed in greater detail in these reasons.

[10]        Unfortunately portions of the reasons for judgement issued by Judge Mundstock left the parties with a different understanding of what was to happen after the Protection Order had been cancelled. Each parent latched on to the portion of the reasons for judgement that supported his or her desired outcome. The Applicant takes the position that parenting time as it existed before the protection order was put in place should resume. This is based on paragraph [50] of Judge Mundstock’s reasons for judgement of June 3, 2020 where she writes:

[50] By setting aside the Protection Order, the existing parenting time schedule in the Interim Consent Order resumes because the order is still in full force and effect.

[11]        Later at paragraph [64] Judge Mundstock writes:

“The parties, with the assistance of counsel, will need to engage in discussions around the resumption of the parenting time schedule. Ms. O. has filed an application to change the Interim Consent Order. If K. and M. decide that they wish to resume the pre-existing parenting time regime, then the conduct orders will provide guidance to the parties on proper behaviour. If K. and M. refuse to visit with Mr. and Mrs. W., then I encourage the parties to attend mediation to work through their issues.”

[12]        The Respondent takes from this that it is up to the children to decide if and when they want to see the Applicant. There are several problems with proceeding on this basis. It appears that Judge Mundstock harboured some hope that once she had clearly explained how she saw the facts of the case and especially how she saw the parties behaving, that they would come to their senses and cooperate reasonably to reintegrate the children back into their former routine. But as the Applicant argues, there are strong reasons for concern that the Respondent has no intention for this to happen, and judging from her subsequent conduct following Judge Mundstock’s decision, this does not appear to be an unreasonable conclusion.

[13]        In the first portion of her Affidavit filed on July 21, 2020, the Respondent provides explanations for why she believes that Judge Mundstock may have misperceived her evidence, the evidence on which Judge Mundstock was critical of the Respondent for discussing court matters with the children. The portions that the Respondent mentions in her affidavit are not the only reasons why Judge Mundstock concluded that the Respondent had been sharing material from affidavits with the children.

[14]        The Respondent then goes on to make a contradictory statement that, on the one hand, “it has never been my intention to involve [the children] in the litigation”, but then going on to explain why she feels justified in doing so. She swears or affirms as follows:

“…but I also feel it is extremely important that the children have the opportunity to have their voices heard, both through sharing their feelings with me, which I can then pass on to the court, and by expressing their wishes in a written form that I may be able to share with the court more directly. As such, I have not been able to completely hide the fact that there is continuing litigation from the children”

[15]        The Respondent doesn’t see anything wrong with the notion that she should be the one to filter what the children are saying for the court. This is especially troubling in light of the comments by Judge Mundstock about this. In giving reasons for making the order prohibiting the parties from discussing court matters with the children, Judge Mundstock wrote, at paragraph [56] of her Reasons for Judgement:

“Ms. O. has not taken steps to ensure that the children are not privy to the dispute between the parents and has acted in a manner which I view as abhorrent.”

[16]        The Respondent was clearly ordered by Judge Mundstock to refrain from discussing court or legal matters with the children. She admits that she breached that order almost immediately, and feels justified in defying Judge Mundstock’s order. The reasons she gives for doing so are very disturbing. She swears or affirms as follows:

“When I received the Reasons for Judgement, I had to tell them that the protection order had been cancelled because I didn’t know what was going to happen with visits, and I needed to prepare them for the possibility that they were going to need to start visiting their father again. Sooner rather than later. I did not show them anything or give them details about the evidence, but I did tell them that there wasn’t enough proof for the judge to find that they were abused.” (Emphasis added.)

[17]        The underscored portion of the Respondent’s affidavit should make it clear why she is unlikely to fairly assess the children’s views about whether or not they wish to see their father. What is much worse is that it gives an air of reality to the Applicant’s concerns that by putting her own spin on the reasons for judgement, she is poisoning the minds of the children against him and his wife.

[18]        Counsel for the Respondent argues that the breaches of Judge Mundstock’s order are a smokescreen designed to draw focus from what is really at issue here, namely the best interests of the children. The difficulty with this argument is that it ignores the fact that under the Family Law Act, Judge Mundstock was bound to make the orders that she did with her primary consideration being the best interests of the children, and I am confident that she did so. If I accept counsel’s argument, it is really saying that a parent can substitute his or her own opinion of what is in a child’s best interests for that of the Judge who made the order and use that to justify not following the order. It also ignores the fact that, by putting her own interpretation on what the court said, the Respondent is unfairly influencing the views of the children in order to achieve the result in this litigation that she desires.

[19]        The Respondent complains in her affidavit that her health problems and her limited financial means make it difficult for her to care for the children on her own. This raises concerns that full-time residency with her under these conditions may not be in the children’s best interests. Without notice to the Applicant, she moved the children to her parents’ home on Vancouver Island. She says that she did not tell the Applicant about this because she was worried that “it would only inflame the conflict for no reason.”

[20]        The parties were unable to agree on the transition back to shared parenting, although in a letter from her Counsel, the Respondent did express the intention to return to shared parenting. The parties also had difficulty agreeing on a counsellor to assist in the transition plan. The Respondent proposed a counsellor specializing in work with children who have been victims of abuse. Counsel for the Applicant saw this as inappropriate, and noted that Judge Mundstock had stated in her reasons for Judgement that the evidence failed to disclose any history of family violence.

[21]        On June 18, 2020, the Applicant saw the children by means of a video call. A second video call took place a week later on June 25, 2020, but only the younger child participated. That same day, counsel for the Respondent forwarded a three page letter written by the older child. The salutation in that letter is “Dear Lawyers and Judge” making it hard not to conclude that there had been some sort of further discussion between the Respondent and the child about this litigation. In the letter the child describes the video call, one that she refused to participate in directly. She goes on to write “I don’t want to talk to him or see him ever again.” She goes on to describe past incidents that she says occurred at the Applicant’s home. She complains about being ignored or “ghosted” at his home and says, “G. doesn’t believe how I feel. I don’t want to call G. dad because I don’t want him to be my dad anymore.”

[22]        The Applicant suspects that the letter is the product of coaching on the part of the Respondent. It is interesting to note that the child states “G. doesn’t believe how I feel” when she hasn’t seen him for almost four months. The only probable way that she could think that this is how the Applicant feels is if this is something that the Respondent has told her.

[23]        The younger child also wrote a letter which states “I am not ready to see dad” but goes on to write “I would like to see him once in a while, but then live with my mom full time. I would be fine with video calls from now on. I am not comfortable going to dad’s alone. I don’t want any overnights or full days.

[24]        On June 29, 2020, the Respondent swears or affirms that she had a talk with her son, once again wilfully ignoring the order of Judge Mundstock not to discuss court or litigation with the children. Though she may see it differently, she put pressure on the child to make his views known and stressed that if he didn’t do so, it would be up to a court to decide the matter for him. Her affidavit describes that discussion as follows:

“On or about June 29, 2020 I had a serious talk with M. I told him that he had no more chances after the next video call to tell the honest truth about how he truly feels. I reassured him that K. and I could be right there with him to support him, but if he didn’t tell his father how he felt, then it would be in the hands of a judge to decide whether or not he would return to the week on/week off schedule he has told me he doesn’t want and is scared to do.”

[25]        That day a text message was sent to the Applicant from the children’s phone. The language in the message is more consistent with that of an adult than with a child of M.’s age. The message reads:

“Dad, I am honestly scared to see you and go to your house alone. I have been going through depression because of everything. I never told you because I was scared that you would be sad from both of your kids rejecting you. I still miss you, but decide to live with mom full time, then see you when I want to. From my stress, I have struggled with eating and being myself since the last video call. Even today I am not myself, I am still having trouble. On the video call I was playing on my XBox because I was stressed out at the moment and was trying to be able to handle the video call. I was still listening to you. I can’t tell you anything because I feel you don’t care. Like when I wanted to talk about the wedding, you never listened to me. I act okay during the video calls, but my pain comes out after we are done. I don’t want to say anything else because it is hard for me to talk right now.”

[26]        It is troubling that the Respondent pressured the child to speak up or live with the consequences of not doing so. It appears that the child’s emotions are being manipulated, rather than simply not involving him in the litigation as Judge Mundstock had desired and in fact as she had ordered. If the text message was in fact sent by the child, it should be noted that he is experiencing this stress while he is living with the Respondent, while he is being told about the court case (and only one side of it at that) and while he is being pressured to play a role in the litigation. The Applicant is not causing this stress, since he has had very little contact with the children in the past four months. It seems more likely that the stress the children are experiencing is the result of the picture that the Respondent is painting for them of the Applicant, rather than from the Applicant himself.

[27]        Two further video calls took place, but these did little to advance the matter in a positive direction. The parties appeared in front of the Honourable Judge G. J. Brown on July 2, 2020 at which time the hearing held before me was scheduled. Judge Brown also made an order by consent for the children to attend counselling with Dr. Julie Lane, a counselling psychologist. The Applicant had proposed Dr. Lane as a counsellor on April 9, 2020. This is an important development. Rather than having the Respondent continue to purport to speak for the children and to put pressure on them to give their views while under her watchful eye, the children can now speak to an independent professional. It is hoped that Dr. Lane can also offer some insight as to whether the actions of the Respondent for which concern has been expressed in these Reasons for Judgement have harmed or unduly influenced the children, whether they have been subjected to emotional manipulation or parental alienation, and if so, how best to remedy this.

Analysis

[28]        In submissions, the Applicant’s Counsel raised concerns about parental alienation taking place here. Concern is raised that the Respondent is poisoning the minds of the children against the Applicant, and reinforcing the false narrative that he is an abuser. The Respondent’s Counsel argues that this cannot be considered at this stage because the nature of these proceedings offers little ability to assess credibility, and because there is no expert evidence supporting such a conclusion.

[29]        On the first of these two objections, it should be noted that the bulk of the evidence supporting the possible presence of parental alienation comes from the words of the Respondent herself, both from what she told Judge Mundstock at the earlier hearing, and what she has sworn or affirmed to in her affidavits, portions of which have been quoted in these reasons. The Respondent has stated under oath or affirmation that she sees this litigation as a fight and that she has conveyed this impression to the children. She states at one point in her affidavit, “I have told [the children] that I am fighting hard to get what they have told me they want” adding that if she doesn’t achieve the desired outcome, it won’t be her fault, “ultimately it will be up to the judge to decide.” This is almost certainly not the result that Judge Mundstock hoped to achieve when she made an order pointing the parties in the direction of collaborative parenting.

[30]        On the second ground, the Family Law Act requires that all orders concerning guardianship and parenting arrangements must be based on a consideration of the best interests of children. In a case such as this, where there are strong indications that parental alienation may be occurring and that children are experiencing distress as a result of this, I cannot agree with the proposition that the Court must turn a blind eye. I do agree that before a drastic remedy is imposed, such as a loss of the Respondent’s guardianship or having her parenting time supervised, expert evidence would be almost certainly be required.

[31]        Section 37 of the Family Law Act requires that when a Court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of section 37 specifically mentions the following factors:

(a)  the child's health and emotional well-being;

(b)  the child's views, unless it would be inappropriate to consider them;

(c)  the nature and strength of the relationships between the child and significant persons in the child's life;

(d)  the history of the child's care;

(e)  the child's need for stability, given the child's age and stage of development;

(f)  the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g)  the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h)  whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i)  the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j)  any civil or criminal proceeding relevant to the child's safety, security or well-being.

[32]        Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.”

[33]        This case presents some troubling issues. I am satisfied that on a consideration of the factors set out in section 37, the Respondent is not acting in the best interests of the children. Specifically she is not working to foster the repair of the children’s relationship with the Applicant. To the contrary, by her own admission, she is creating an environment for the children in which their father is seen as an enemy, someone to be fought, rather than someone deserving of their love and affection. The status quo is not in best interest of the children’s emotional health and well-being. The children are under great stress in her home. She blames that on the Applicant, someone who is for all intents and purposes out of the children’s lives at the moment. She does not see her part in any of this. She sees the direction from this court to shelter the children from discussion of court matters as wrong and as something she needs to remedy by ignoring it and by telling the children what she thinks they need to know about court.

[34]        It is not likely that things will improve if left unchanged. There is a likelihood that the anxiety that the children have expressed to be experiencing will only continue or worsen, fed by the actions and pressures of the Respondent. Judge Mundstock was unsuccessful in convincing the Respondent to leave the children out of the parental conflict and I am doubtful that anything I could write or say would be more convincing.

[35]        I am mindful that a return to the equal parenting regime would be contrary to the expressed views of the children. I am concerned that those views have been filtered and heavily influenced by one parent only, that they have never been expressed in any independent environment, that they have been obtained in contravention of an order of this court made in the best interests of the children, and that they may be the product of emotional manipulation.

[36]        I also take into account that prior to February 28, both parents proved themselves to be capable caregivers and that co-parenting had once worked effectively. I am also mindful of the findings of Judge Mundstock with respect to family violence, and her order prohibiting either parent from using physical forms of discipline remains unchanged.

[37]        Restoration of the parenting schedule will come with some initial shock to the children. I wish this could be avoided, but it will only be made worse if things remain as they are. Things will improve once the children can see that they will not be physically harmed in the Applicant’s home, contrary to the expectation that has been put in their minds. Considerable responsibility will be placed on the Applicant to make the children feel safe and loved, and to show tolerance for how the emotional trauma they have experienced may manifest itself. He will be expected to follow the terms of the conduct order. He would be wise to acknowledge any past mistakes on his part, to listen to the children and to resist any urge to minimize or invalidate their feelings. It would also not be in the children’s best interest or his to use his time with the children as an opportunity for payback by disparagement or criticism of their mother in their presence. Following the advice of Dr. Lane will also be very important.

[38]        I find that it is in the best interests of the children for shared parenting time to resume. This will be phased in, with brief amounts of equal parenting time, increasing in duration and building to return to what exists in Judge Point’s order. Initially each party will have the children in his or her home for two days, and then for three days, and then for four days, and then for five days, and finally the “week on/week off” schedule will resume. This can be modified if the parties can actually agree (but the agreement should be recorded in writing so as to avoid any subsequent dispute) or it can be reviewed on the advice of Dr. Lane.

[39]        A case has been made out to show that the Respondent paid no attention to, or respect for the order made by Judge Mundstock. One of the options to address this is to impose a fine as requested by the Applicant, but I am choosing not to do this for several reasons. Firstly, given the Respondent’s means, it is unlikely that she could afford to pay this. Secondly, it is difficult to see how doing this would be in the children’s best interest. Quite the contrary, it would reinforce the notion that their parents are at war and that there was a winner and a loser. Thirdly, if it has not yet become apparent to the Respondent, she should understand that further acts of wilful disobedience to court orders in this way will only serve to reinforce the notion that her intent is to cause the children to hate their other parent. A continued pattern of actions on her part which contribute to an expert opinion that she is embarking on a pattern of parental alienation may result in a possible loss of parental responsibilities or even guardianship.

[40]        The same considerations apply to the Applicant. His goal should not be preparing for the next battle in the war. His focus should be on helping to build healthy children who will someday become healthy adults. The parties can love their children or they can love their fight. Time will tell which is more important to them.

Order

[41]        For the foregoing reasons, it is ordered that the Order of the Honourable Judge S. L. Point made on June 23, 2015 is amended to provide that the Applicant G.R.W. and the Respondent K.M.O. will have parenting time with the children as follows:

1.            From Friday July 31, 2020 at 4:30 p.m. until Sunday August 2, 2020 at 4:30 p.m. the children shall be in the care of the Applicant.

2.            From Sunday, August 2, 2020 at 4:30 p.m. until Tuesday August 4, 2020 at 4:30 p.m. the children shall be in the care of the Respondent.

3.            From Tuesday, August 4, 2020 at 4:30 p.m. until Friday August 7, 2020 at 4:30 p.m. the children shall be in the care of the Applicant.

4.            From Friday, August 7, 2020 at 4:30 p.m. until Monday August 10, 2020 at 4:30 p.m. the children shall be in the care of the Respondent.

5.            From Monday, August 10, 2020 at 4:30 p.m. until Friday August 14, 2020 at 4:30 p.m. the children shall be in the care of the Applicant.

6.            From Friday, August 14, 2020 at 4:30 p.m. until Tuesday August 18, 2020 at 4:30 p.m. the children shall be in the care of the Respondent.

7.            From Tuesday, August 18, 2020 at 4:30 p.m. until Sunday August 23, 2020 at 4:30 p.m. the children shall be in the care of the Applicant.

8.            From Sunday, August 23, 2020 at 4:30 p.m. until Friday August 28, 2020 at 4:30 p.m. the children shall be in the care of the Respondent.

9.            From and after Friday, August 28, 2020 at 4:30 p.m. the children shall remain in the care of each party for alternating full weeks (beginning with the Applicant.)

Except as necessarily modified by this order, all remaining Court Orders in this matter that are still in force remain in force.

Nothing in this order prevents the parties from adjusting the parenting time schedule set out in this order by agreement in writing (which may include agreement expressed by email or text message.)

Dated at the City of Abbotsford, in the Province of British Columbia this 27th day of July, 2020.

 

 

_____________________________

The Honourable Judge K. D. Skilnick

Provincial Court of British Columbia