J.G.W. v. A.C.S.

THE SUPREME COURT OF BRITISH COLUMBIA THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.G.W. v. A.C.S., 2004 BCSC 1573 Date: 20041130 Docket: 17548 Registry: Vernon Between: J.G.W. Petitioner And A.C.S. Respondent Before: The Honourable Madam Justice Martinson Reasons for Judgment (Access Review) Counsel for Petitioner: B. Kirkpatrick Appearing on his own behalf: A.C.S. Date and Place of Trial/Hearing: October 28, 2004 Vernon, B.C. INTRODUCTION [1] This is a review of an access order made on November 18, 2003 after an eight day trial. The question now is whether it is in the child's best interests to see her father. The circumstances are somewhat unusual. In the trial reasons, found at 2003 BCSC 2001, the Court described J. and her circumstances this way: [1] This case involves a little girl named J., daughter of the petitioner and the defendant. She is now 10 and will be 11 on [ ], 2004. [2] She has lived with her mother since August 1995. In the early years she saw her father fairly regularly, but has not seen him much in the recent past. [3] While at first blush this sounds like many cases the court hears, this case is much more complicated. [4] J. says she does not want to see her father and has gone so far as to make a sign that she holds up saying that she does not want to see him. An interim access order contained a police enforcement clause and it has been used by J.'s father to enforce access on more than one occasion. The mother was arrested in May, 2001 and was in custody for several days. [5] J. is a child with special needs. Her psychiatrist, Dr. Pipher, and other mental health professionals and care givers describe her condition as very complex. She has from a very young age had receptive expressive language disorder and mild intellectual challenges. She then developed separation anxiety that at first was not severe. However, after an incident in May, 2001 when her mother was arrested as a result of an access issue, her psychiatrist says that she has now developed a separation anxiety disorder. While she has progressed very well with the other two issues, the separation anxiety is severe. Dr. Pipher says that she is very fragile and is at serious risk of developing other serious psychiatric conditions such as general anxiety disorder and obsessive compulsive disorder with secondary depression. [6] She has required and continues to require special assistance in her day care and at school. She thrives on sameness and routine. This is a significant issue. She tends to see things in the here and now and in black and white. Socialization can be challenging. She can withdraw into her own world. She needs calmness, patience, and lots of notice and preparation for any changes. Trust is important to her. [2] I have decided that it is not in this child's best interests to have contact with her father at the present time. I will review the decision made at trial, describe the events that have taken place since the trial, review the evidence before the Court at this hearing, and then explain why I have reached this conclusion. DECISION AT TRIAL [3] At trial the court had the benefit of a custody and access report prepared by Dr. Lea, a psychologist with considerable experience. It was prepared at the request of the father and with the cooperation of the mother. One of Dr. Lea's recommendations was that the parents and J. work with a counselor to try to facilitate access. Dr. Rochford, a psychologist with considerable experience, was chosen as that counselor and saw the parents and J. before the trial. [4] This Court concluded that the mother would have sole custody and guardianship of J. and the father would have access under certain conditions. Access would be, until further order of the Court, as recommended by Dr. Rochford, who the Court found to be in best position to assess J.'s progress. There was to be no access if Dr. Rochford concluded that this was in J.'s best interests. The father was to have telephone access to J. each Wednesday at 6:00 p.m. British Columbia time. [5] The father asked for a police enforcement clause at trial, but the Court did not include such a clause. I seized myself of any further application and directed that a Judicial Case Conference take place on Friday, June 11, 2004. [6] The Court directed that the father was to enrol in anger management counselling. In addition, he was to provide to the court in writing a report on three matters: first, what anger management counselling he has taken; second, what steps he has taken to understand and follow up on J.'s special needs; and, third, when he has phoned J. [7] The reasons for these conclusions are found in the trial decision referred to above. EVENTS SINCE THE TRIAL [8] Since November 18, 2003, the father has complied with the orders of the Court relating to anger management counseling, and reporting. Dr. Rochford has met with J. on a number of occasions. The child has again seen Dr. Pipher, her treating psychiatrist. J. has refused to see her father. She spoke to him sometimes on the phone, but more recently has refused to do so. [9] A Judicial Case Conference did take place on June 11, 2004. It did not resolve the question of access. The parties agreed that this Court would conduct a further hearing to determine what court order would now be appropriate. That hearing took place on October 28, 2004. [10] The parties had the opportunity to present affidavit evidence relating to events that have happened since the trial and relating to the child's best interests. The Court requested that Dr. Pipher and Dr. Rochford prepare reports dealing with J.'s situation since the trial. Each party had the opportunity to present a report of a professional (such as a psychologist, psychiatrist or social worker) dealing with what is in the child's best interests and focused on what has happened since the trial. Each party had the opportunity to present a report of a professional commenting on the reports of both Dr. Rochford and/or Dr. Pipher. [11] The father presented his own affidavit as well as a letter written by Ms. K., his former spouse, to Dr. Pipher, dated October 20, 2004. The mother presented her own affidavit as well as the affidavit of a child care worker who has worked closely with J. EVIDENCE ON THE QUESTION OF ACCESS Dr. Pipher [12] Dr. Pipher says that J. remains adamant that she does not want to see her father. He is of the view that it is in her best interests that her wishes be respected. He says that while she has a Language Disorder and intellectual challenges, she is able to provide a logical rationale as to why she does not wish to see her father. [13] He says that J. now thinks that her mother is trying to make her have contact with her father. This he sees as detrimental to J., as J. sees her mother as a safe person who has consistently provided her emotional, physical and spiritual needs. She sees her mother as trustworthy. Dr. Pipher says that if the court is to insist that the mother force her daughter to have access to "a man [J.] views as abusive, it would only serve to break [the child's] trust in her mother and worsen their healthy relationship and bond." [14] Dr. Pipher says that if the child is forced to have access with her father, he thinks that her anxiety symptoms would become once again severe. While her separation anxiety symptoms have now improved, she continues to have some mild anxiety and worry about being removed from her mother's home. Dr. Pipher says J. remains at significant risk to meet the criteria for Anxiety Disorder, such as Separation Anxiety, if she were to be forced into an access situation with her father. Dr. Rochford [15] Dr. Rochford saw J. several times after the trial concluded. She says that J. presented as being a fairly happy, vital and well-adjusted little girl. However, when discussion arose about seeing her father she would typically refuse to speak and at times would curl into a fetal position on the couch and "shut down" completely. Dr. Rochford is of the opinion that "it is probably fruitless to continue counseling at this time." Her view is that as the child becomes older, and presents a change of view or is more open to a relationship with her father, it would be appropriate to resume counseling at that point. The Father [16] The father says this in his affidavit: 1. In response to Dr. Pipher and Tina Rochford and [the caregiver's] affidavit, I give the following evidence. Approximately ½ hr of tape of [the child] swimming with her father and the letter from [the father's ex wife] addressed to Dr. Pipher. 2. The video proves that there can be access between [J.] and myself, her father. The evidence that I have does not support the continuing claims of spankings and [the child] still coming up with new claims of being taken away from her home. It is obvious that it is [the mother] giving her these ideas and is working harder on finding evidence trying to support stopping access instead of finding solutions to support and encourage access. 3. In response to the mother's affidavit, telephone access can not occur without the basic encouragement that her Dad loves her and that it is O.K. with [the mother] that she talks to her father over the phone, this never happened. 4. If [the mother] isn't letting [J.] know in the way she talks, acts or even in her body language, that she is O.K. with [J.] seeing her father, we will never resolve this problem. 5. [The mother] on several occasions when I have called to talk to [J.] has focused on negative comments and we already know that [J.] has been exposed to what has been happening between her mother and I. 6. I am requesting one on one counseling with [the child] and myself. I believe that [the child] needs to get to know her father again and be re-assured directly from me. Also I request a custody and access report to be done by Dr. Elterman. [17] In his oral submissions to the Court the father raised the issue of parental alienation. He continues to be of the view that the main obstacle to access is the mother. He emphasizes that he had a very good relationship with his daughter and the lengthy videos the court viewed at trial confirm this. He loves her very much and feels that the difficult relationship between him and the child's mother is getting in the way of a good relationship with the child. His family members also love J. and want to restore a relationship with her. That would be to her benefit. Ms. K. [18] Ms. K. comments in her letter about accusations of abuse and neglect in the time period covered by the trial. She says that the idea that the father would abuse or neglect this child "is absurd". She says that anyone who has ever watched [the father] with [J.] will attest to his love for his daughter. She asserts that accusations of abuse and neglect are the "product of one person, [J.'s] mother." She describes the father as a wonderful father caught in an unfortunate situation. She points to the fact that he has weekly visits with her two children, her 9 year old son and 8 year old daughter, who are not his biological children. The Mother [19] The mother says that she has cooperated with Dr. Rochford and Dr. Pipher. She was not in attendance when the child met with either Dr. Rochford or Dr. Pipher. She described in detail the telephone conversations with the father. The child continually said she did not want to talk and when required to, she usually said "hi" and hung up or things like she did not feel like talking and then hung up. She later refused to go to the phone at all. The mother said it got progressively harder to get the child to go to the phone. J. would walk away, lock herself in the bathroom or run outside. [20] The mother said she has a concern that J. is, at times, frustrated with her when she tries to get J. to speak on the phone. J. feels that her mother is not listening to her and is pressuring her to get on the phone. The mother is concerned about eroding her bond with her daughter and the trust her daughter has in her. [21] J. advised the mother that she was having bad dreams around the times that the father would call. In one of the dreams she thought her dad was at school and that scared her. She said she was worried that he was going to take her away. This has been a recurrent theme in her dreams. The child has said that she will run away if she has to go with him. [22] The mother says that over the past 10 months the child is more relaxed than she was before. She is not as tense. At times J. has spontaneously said "I love my home" and "I love where I am at". She seems to be more comfortable, happier and content now. The Child Care Worker [23] The child care worker said that J. was in her daycare both in the summer of 2003 and 2004. She said that during the summer of 2003 the child pulled herself away from the group. She was quiet, withdrawn and appeared unhappy at times. The child care worker was concerned about her. J. seemed to be depressed. [24] During the summer of 2004, the child was like a new girl. She made new friends and renewed old friendships from the past and participated in group activities as well as enjoyed her own solitary play. She was upbeat, happy and appeared to be relaxed and at peace. She was more willing to try new activities, share ideas, read books and direct children in positive ways. From her observation and experience with J., she says there has been an incredibly positive change in her between the summer of 2003 and this past summer in 2004. DECISION [25] This is an unfortunate situation. The father loves his daughter and has had a close relationship with her while the family lived together before separation, and for periods of time after that. He has been persistent in his efforts to have regular access with her. [26] These efforts by the father to ensure that access took place led to many contentious access exchanges and the unfortunate arrest of the child's mother. I concluded in the trial judgment that this arrest should not have occurred. I am satisfied that these experiences have had a particularly negative effect on J., given her special needs as described above. [27] J. was adamant before the trial that she did not want to see or speak to her father. She still holds that view. Her view is based on a combination of her challenging mental health difficulties and the numerous unpleasant experiences that she has had with access and access attempts. The arrest of her mother had a profound effect on J. and she associates the arrest and its consequences with her father. [28] The initial efforts to facilitate access at the time of the trial, through Dr. Rochford, were not successful. J. was described as curling up on the floor in the fetal position when the issue was discussed. It is true that she, with the cooperation of the mother, met with her father in her mother's presence at a swimming pool and a restaurant. While that was an encouraging step, it has not translated into a desire for further access. [29] She is now 11 years old now and will be 12 years old in three months. Counseling sessions with Dr. Rochford have not helped in encouraging J. to see her father. While her views should not be the deciding factor, they are entitled to consideration. I am satisfied that if further requirements for contact are ordered now, J. will become even more resistant. She is not likely to change her views in the near future. [30] The child's psychiatrist, Dr. Pipher, is of the view that contact is not in the child's best interests and may put her at risk of developing an anxiety disorder and other mental health conditions. This would return her to the fragile position she was in at the time of the trial. [31] I accept Dr. Pipher's opinion in this respect. He is the treating psychiatrist and is in the best position to make that assessment. Dr. Lea, the author of the custody and access report referred to above, agreed at the trial that Dr. Pipher, as the treating child psychiatrist, is in a better position than he is to make that assessment. [32] This mental health risk to J. cannot be overemphasized. The evidence shows that J. has improved significantly over the last year. It is not in her best interests to expose her to such a significant risk. [33] This is not a case of parental alienation. This Court did not conclude at trial that this case involved parental alienation. The Court made suggestions as to what the mother could do to assist in dealing with the question of access. That is not the same thing as concluding that she was deliberately trying to discourage access. [34] The evidence since the trial satisfies me that the mother has made every effort to facilitate contact. She has followed the advice of Dr. Rochford. She has done all she can do in these difficult circumstances. [35] In this respect it is important to note that at the start of the trial the mother did not oppose access, but was asking for a graduated access regime. It was only after hearing all of the evidence, including the compelling evidence of the child's psychiatrist, that she changed her view to one of working only through Dr. Rochford. She also made an offer to settle that included access: see 2004 BCSC 601. These are not the actions of a person who is trying to alienate her child from her father. [36] This Court made findings about the father's conduct at paras. 65 to 69 of the trial judgment. The Court concluded that he physically and emotionally abused the mother and her son and that he minimizes this extremely serious conduct and makes excuses for it. The Court found that he threatened to kill the mother at the mother's home when J. was nearby. [37] In the trial reasons this Court commented on J.'s medical condition and the father's view about it this way: J.'s Medical Condition [53] Dr. Lea, in his report, says that the father has not always fully appreciated J.'s linguistic, social and cognitive challenges. I agree with Dr. Lea. [54] The father does not have a sufficient understanding of the nature and complexity of J.'s medical condition and he will not be able to play a role in her life unless he gains that understanding. [55] Looking at everything that he has said about this matter, I conclude that he really believes that J. is a bit slow but that, if you treat her at the level that she is behaving, everything will be okay. [56] It was significant to me that his sister and sister-in-law did not have an understanding of the nature of and the complexity of J.'s condition, even though they are advocates for the father and have been supporting him in this court case. They should have known and they must learn about it. [57] The father has not contacted in any meaningful way the doctors and other professionals who care for J. He was not prevented from doing so. When he did obtain information, such as the information about J.'s inability to speak on the telephone, he challenged it rather than trying to understand it. He told the court in his final argument that he knows what's best for J. [58] His meeting with Dr. Pipher was very telling to me. He was not interested in finding out what Dr. Pipher had to say about J. and how he could help her. He told me he did not need to know as he had read the report. If he had read the report and understood it, he should have been very anxious to talk to Dr. Pipher about how he could help. [59] His view and his family's view of the nature of J.'s conditions are simply wrong. Their views are dangerous to hold, and if they do not change their views, they will all lose J. [38] The father has not significantly changed his approach in the year since the trial. He still blames the mother, as demonstrated by his evidence and submission at this hearing. He makes no reference to J.'s special needs or how they affect the situation. [39] In reaching this conclusion about access, I have considered Ms. K.'s letter to Dr. Pipher. Little weight can be placed on it. The contents of the letter relate to matters at issue at trial. She did not attend the trial to give evidence. The matters she addresses in her letter were at issue at the trial. Had she given evidence at the trial, her allegations would have been heard under oath in open court and would have been tested by cross-examination. The letter itself is not in the form of a sworn affidavit; nor is it directed to the Court. [40] It is not in J.'s best interests that the Court order another psychological assessment. The father previously asked in a court application that an assessment be conducted by Dr. Elterman. The Court named Dr. Lea as the professional who should prepare the report. Dr. Lea prepared a comprehensive report and the court had the benefit of both his report and his testimony at trial. [41] In reaching my conclusion, I have considered the legal principles that I must apply, as set out at paras. 29 through 33 of the trial decision. That includes a consideration of section 16 of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.), which says that the Court shall give effect to the principle that children should have as much contact with each of their parents as is consistent with their best interests, and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [42] For the reasons set out above, no contact is consistent with J's best interests. [43] I remain hopeful that when J. is three or four years older, contact can again be made, with the assistance of a trained therapist. [44] CONCLUSION [45] The order at trial is varied to say that the father shall not have access or other contact with the child. [46] Each party will bear his or her own costs of this application. "D.J. Martinson, J." The Honourable Madam Justice D.J. Martinson