A. v. B.

2009 BCSC 1916 A. v. B. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A. v. B., 2009 BCSC 1916 Date: 20090417 Docket: 43332 Registry: Vernon Between: A. Plaintiff And B. Defendant Before: The Honourable Madam Justice Martinson Oral Reasons for Judgment In Chambers April 17, 2009 These Reasons for Judgment have been edited to conform with Oral Reasons for Judgment in this case issued subsequently by Mr. Justice Dley. Counsel for Plaintiff K. R. Fiddes Counsel for Defendant N. R. Russell as agent for L. A. Kahn, Q.C. Place of Hearing: Kelowna, B.C. Nature of the Application [1] In this family law custody case, the parents are A. and B. They have been married since August 2002, and have two children: K, who is five; and C, who just turned two. The children were born in British Columbia and have lived here since they were born. A. and B. have been separated since early November 2008. B. is a lawyer who practices family law in British Columbia, and A. is a golf professional. [2] On December 19, 2008, A. was arrested for a number of offences relating to K. He was at K's preschool Christmas party at the time of the arrest. [3] Specifically, the charges cover the time period from April 2007 to October 2008, and allege sexual assault, threats to cause death or bodily harm, sexual interference, and sexual exploitation. A. was released on bail with no contact terms. The terms were later varied to provide for no contact unless ordered by a Supreme Court Justice. He has not seen the children since his arrest. The date for the criminal trial, which will be in Provincial Court, will be set on April 22, 2009. I am told that A.'s counsel wants an early fall date and the Crown is asking for a January 2010 date. [4] I have been asked to make interim (or temporary) orders with respect to: whether B. should have interim sole custody and guardianship of the children; whether she should be permitted to move, temporarily, to Saskatoon pending the trial; timing of access to A.; and whether access to his parents should take place with a third person present. [5] No trial date has been set with respect to this matter. Counsel have agreed that the family law trial should take place after the criminal trial has concluded. Discussion [6] The background facts are set out in the written arguments and I need not repeat them now. I have also considered all of the affidavit evidence and the submissions from counsel made yesterday. [7] It is important to keep in mind that this is an application for a temporary order. [8] At the trial, if there is a trial, the court will consider the legal principles that relate to relocation at an initial application. The position has been recently summarized by Madam Justice D. Smith, for the court, in Falvai v. Falvai, 2008 BCCA 503, 86 B.C.L.R. (4th) 47, and I have kept those legal principles in mind. [9] However, as counsel for B. has fairly conceded, the test is different on an interim application. Generally, the status quo should be maintained unless there is cogent evidence requiring a different result. The court will generally, in an interim application, consider all evidence in the affidavits to be true: W.G.H. v. J.L.H, 2008 BCSC 1007. [10] The result is that the Court could order an interim move, but this requires first an examination of the status quo, and then a consideration of whether there is cogent evidence requiring the move. What is the status quo in this case? [11] I have been asked to take a broad view of the status quo, considering that B. has been, primarily and on a day-to-day basis, the person looking after the children. She says that would continue if she moved. She says that she has had the sole care of the children at least since the arrest; they have not seen their father since then. That, she says, would essentially continue if she moved. [12] Counsel for B. argued that I can and should consider the underlying relationship between the children and each parent. However, at an interim hearing such as this, and faced with conflicting affidavit evidence, I am not able to conclude that B. was in fact the person primarily responsible for the day-to-day care of the children. [13] In my view, the status quo in this case is the children living in British Columbia, with B. working here, K attending preschool and daycare here, and C living with them. The children have lived here all of their lives. Should the status quo be changed on a temporary basis? [14] This is a challenging issue. There are competing considerations. [15] One the one hand, the allegations are very serious. If they are true, K needs to be protected from her father. [16] There is evidence that K has been exhibiting worrisome behaviour, including clinginess, bad dreams, and a high level of fear. There is evidence that K has exhibited sexualized behaviour. There is evidence that K is more relaxed in Saskatoon. There is evidence from B. and from Dr. Lea that B. is finding this situation stressful. Her stress can impact negatively on the children. She has family support in Saskatoon. She has a job to which she can go. She says that the support system that was in place in British Columbia to assist her in her work is no longer there. She says that her work is and will continue to be negatively impacted by the notoriety of the case. B. says that she is concerned about the possibility of physical retribution on the part of A. [17] Dr. Lea and the counsellor, who is the play therapist that K attended, both recommend the move. [18] B. says that she supports supervised access in Saskatoon and that there is a free program there that is available once a British Columbia order is registered. I am told that it should be easy to register. [19] There is no doubt that the presumption of innocence applies to A. At the same time, the Crown has pursued charges on the basis that the Crown thinks the evidence meets its charging criteria of a substantial likelihood of conviction. [20] On the other hand, there are other considerations that support B. and the children remaining in British Columbia pending the trial. [21] There is evidence to support the conclusion that B. and her family believe the allegations are true and their conduct has and could continue to reinforce that view in K. Even the act of a move would reinforce that view. If the allegations are not true, doing this is highly detrimental to K and to C as well. B. and her family will have a hard time remaining neutral in K's eyes in the months before the trial. [22] There can be no doubt that access will be more difficult for A. and for his parents (the children's grandparents), if there is a temporary relocation. It would be more expensive, more artificial, and more time-consuming. [23] If the allegations are not true, moving K to a different province, away from her father, is not in K's best interests, nor is it in C's best interests. [24] B. has, by her own evidence, a successful law practice here. All indications are that the law firm in Saskatoon is hiring her on the basis that she will likely stay for at least a year. She would be giving up her clients in British Columbia; this would make any move back much more difficult. The concern is that a move now would, in effect, pre-empt the decision of the trial judge in the family law matter. [25] K has very good preschool and daycare arrangements with adults and children she knows. This point was reinforced by the counsellor. [26] A. adamantly denies the allegations against him. [27] There are concerns about the methodology used which ended up in K's disclosure. Both Dr. Elterman, on behalf of A., and Dr. Lea, on behalf of B., agree that there are concerns relating to the use of play therapy. There was not an original forensic investigation. A book (or books) on disclosure was used. Therapy and assessment were mixed together by the counsellor. These are matters that will have to be considered in assessing the reliability of the disclosure in both this proceeding and the criminal proceeding. In doing so, the judges will also look at the counterbalancing considerations raised by Dr. Lea in his report. [28] There is concern about this family law proceeding continuing here; it could be moved to another registry. [29] B.'s parents, who live in Saskatoon, are in a position to spend time with her and the children here, and she and the children could visit Saskatoon. [30] A. has said that he plans to pursue his custody claim and feels that he has been the most important person in the children's lives. If the allegations are not true, his ability to argue that living in British Columbia is best for the children would be adversely affected by the temporary move. [31] It will be open to the trial judge in this proceeding to conclude that B. has always planned to move permanently. She did not obtain A.'s consent when she advised that she was going to move, but rather acted unilaterally and on short notice. Initially, she did not say that she planned to move to Saskatoon temporarily, as she is now doing. [32] While the counsellor and Dr. Lea recommend the move, they do so without the benefit of speaking to A. and obtaining his input on the matter. That affects the weight to be attached to their opinions. [33] After weighing these competing considerations, I have decided that they weigh in favour of the children continuing to reside here, with their mother, until the trial is over. It cannot be said that there is cogent evidence requiring the status quo to be changed. [34] I grant to B. interim sole custody and guardianship. A. will have professionally-supervised access once every two weeks for up to three hours at a time, beginning forthwith. In my opinion, the children's safety is protected by this arrangement. The proceedings can be transferred to another jurisdiction, such as Kamloops. There has already been a hearing in Kamloops before my colleague, Mr. Justice Meiklem. [35] I would recommend, for what value it may have, the earliest possible trial date be obtained for the criminal trial. Otherwise, no matter what the outcome of the trial is, there will be a continuing adverse and potentially very damaging effect on the children, especially K. I have no difficulty with that view being put before the learned Provincial Court Judge next week, on April 22, 2009. [36] With respect to access to K's paternal grandparents, they of course should have access and that has been agreed upon. It is also agreed that B. would be there at the start and at the end of the visits. The only question, as I said at the outset, is whether a third party should be present. My conclusion is that there does not need to be a third person present. These are the children's grandparents, as are Mr. X. and Mrs X., their maternal grandparents. They love the children. It is in the children's best interests that there be some sense of normalcy in the relationship with their paternal grandparents. [37] I trust that the specifics of the access can be worked out between counsel. If not, I am happy to participate in a teleconference to deal with any issues that arise. "Martinson J."