IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Ms. B. and Mr. M. are the parents of a daughter, R., now age 6.  Mr. M. seeks an order for parenting time and for shared parental responsibilities.  Ms. B. opposes that application, and seeks an order for child support.

[2]         Ms. B,’s opposition to Mr. M,’s application is founded upon an allegation that Mr. B. has sexually assaulted R., and so must be considered to be a risk to her safety.  Ms. B. concedes that, were it not for that allegation, an order for shared parenting time and responsibilities would be appropriate.

[3]         Ms. B. says that:

[4]         Ms. B. reported the matter to the Ministry of Children & Families (“MCFD”) and to the RCMP, each of whom interviewed R.  After those interviews, the RCMP did not make a report to Crown Counsel, and no criminal proceedings ensued.  MCFD did not initiate any child protection proceedings.  Ms. Burns, a social worker employed by MCFD, says that the investigation was discontinued because “… we could not substantiate the report …”, and that MCFD currently takes no position with reference to Mr. M’s parenting time.

[5]         After the allegation of sexual assault was raised, but before the MCFD investigation, Ms. B. referred R. to Ms. Farkas, a clinical counsellor.  The pertinent extracts from Ms. Farkas’ evidence are:

[6]         Mr. M. denies that any such event occurred.  He accuses Ms. B. of coaching R. to make the allegation.  He also impugns the credibility of Ms. Farkas, on the ground that Ms. Farkas’ extended family are on friendly terms with Ms. B.’s extended family.

[7]         I accept the accuracy and veracity of Ms. Farkas’ evidence.  I have no doubt that R. made the statements attributed to her by Ms. Farkas.  I simply do not know, and have no way of assessing, whether the statements were true.

[8]         The governing principle is stated in section 37 of the Family Law Act SBC 2011, c 25 (underlining added):

[9]         If the allegations of sexual assault are false, R.’s best interests would be served by a shared parenting arrangement of the kind proposed by Mr. M.  If they are true, R.’s interests can be served only by a parenting arrangement which eliminates the risk of future assaults.  The difficulty is that there is no way of assessing with any confidence the veracity of the allegations.

[10]      I do not regard as particularly significant either: (i) the decision of the RCMP to refrain from prosecuting Mr. M.; or (ii) the decision of MCFD to refrain from commencing child protection proceedings.  Each of those decisions was founded, at least in part, upon an interview with R. at which I was not present and about which I have no information.  The RCMP do not recommend prosecution unless they believe that there is a substantial likelihood of conviction;  i.e. unless the RCMP believe that there is a substantial likelihood that a court would be satisfied beyond a reasonable doubt of the guilt of the accused.  In a child protection proceeding, MCFD carries the onus of proving that a child is in need of protection.  In this proceeding, the question of onus of proof does not arise.  I am charged with the responsibility to determine what parenting arrangements best serve R.’s interests without any presumption in favour of one outcome or another.

[11]      I think that I should approach the question by considering the risks and benefits to R. of each possible outcome.

[12]      Accordingly, Mr. M.’s parenting time must take place under conditions which preclude the possibility of sexual abuse.  Such conditions might be achieved by the use of a reliable adult supervisor, to be present throughout each interval of parenting time, or perhaps by parenting time in the context of an organized recreational activity in a public place.  One possible example is participation in a dance class at a community centre.  Mr. M. and Ms. B. should consider such options and engage in a meaningful conversation, via e-mail, with a view to establishing the necessary conditions by agreement.  If they do not agree, either parent may schedule a further hearing before me to determine the issue.

[13]      Mr. M.’s parenting time with R. will be limited.  In that circumstance, Ms. B. should exercise all of the parental responsibilities set out in section 41 of the Family Law Act.

[14]      In each of the six years of R.’s life, Mr. M. has had R. in his care for less than 40% of the time.  Accordingly, he is responsible for child support at the rate set out in the Federal Child Support Guidelines.  The parties agree that his annual income is $28,000.  His monthly child support obligation is therefore $253. 

[15]      Mr. M. has paid some of R.’s daycare expenses.  However, such expenses are “special or extraordinary expenses”, governed by section 7 of the Guidelines, and payable in addition to the monthly child support obligation.  As a consequence, Mr. M. is not entitled to credit for those payments against his monthly child support obligation.  Special or extraordinary expenses are to be shared by the parties in proportion to their incomes.  Ms. B. should prepare a table of special or extraordinary expenses which she has incurred and submit the table to Mr. M. for his review.  If the parties are unable to agree on their respective responsibilities for special or extraordinary expenses, either may apply to the court to determine the matter.

[16]      Mr. M. has made some payments of child support, under the terms of interim orders of this Court, but the dates and amounts of those payments are not in evidence.  The parties should correspond by e-mail, in an attempt to reach agreement on the dates and amounts of each payment.  If agreement is reached, a table of the dates and amounts of past child support payments should be appended to an affidavit and filed in the Registry.  If no agreement is reached, either parent may schedule a further hearing before me to determine those questions.  I will then determine the existing arrears of child support and make an order for payment of the arrears.