D.M.H. v. D.B.C.

2014 BCSC 411 D.M.H. v. D.B.C. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.M.H. v. D.B.C., 2014 BCSC 411 Date: 20140312 Docket: E045655 Registry: New Westminster Between: D.M.H. Claimant And D.B.C. Respondent Before: Master Caldwell Reasons for Judgment Counsel for Claimant: D. Montgomery Counsel for Respondent: T.J. Swansky Place and Date of Hearing: New Westminster, B.C. February 28, 2014 Place and Date of Judgment: New Westminster, B.C. March 12, 2014 [1] The claimant seeks orders returning the parties' four and a half year old son K.R.H. (K.) to her care here in BC. The respondent seeks orders that K. reside with him in Alberta pending counselling or therapy aimed at determining whether or not K. has been sexually abused by the claimant's current husband R.H. [2] K. was born to the parties on June 3, 2009. The parties, although friends for some time, never resided together; they were intimate on only one occasion. [3] The claimant married R.H. in August of 2013; they have lived together in the Lower Mainland of BC since 2010. The claimant's other child, K.M.B.H., aged 9 ½, lives with them. [4] The respondent is now in a marriage-like relationship with K.K.; they live in Sherwood Park, Alberta. Ms. K.'s two children live with them. [5] I am satisfied from the materials filed and the submissions of counsel that the claimant was clearly the primary, if not sole, parent in K.'s life and that the respondent had very limited contact with K. due to his abuse of alcohol. I am satisfied that the respondent's involvement with K. was greater than that alleged by the claimant but less than that alleged by the respondent. [6] In spite of this alcohol problem the claimant was open to increasing the respondent's role in K.'s life on the condition that he successfully complete a period of one year of sobriety. This was accomplished in the Fall of 2013 and the parties began arranging for K. to have an extended visit with the respondent in Alberta over the Christmas season. [7] Prior to K.'s departure the claimant wrote to advise the respondent that K. had experienced a period of fairly serious constipation. She advised that K. had suffered a tear around his anus as a result of the condition, that he had seen the family doctor and that a cream had been prescribed. During the correspondence the parties discussed laxatives and bathroom procedures; the claimant suggested that if the respondent had other questions or concerns, his mother was welcome to attend upon K.'s doctor to clarify the situation. When the claimant packed K.'s suitcase she included the anal cream and laxatives. [8] It is clear that there was discussion between the parties concerning the possibility that the tearing might be the result of sexual abuse but the evidence of the claimant is that Dr. Wong had advised that the tearing was from the inside due to the pressure of bowel movements, not from outside as would be seen from sexual abuse. While that assertion does not appear in Dr. Wong's notes it is not disputed and is consistent with later commentary. [9] It is alleged by the respondent that once K. arrived into his care he began to make disclosures of sexual abuse by Mr. H. Those allegations are detailed in the respondent's affidavit and will not be repeated here. I do note however that there are certainly inconsistencies and difficulties with the allegations. [10] Certain of the allegations are said to have been made to one of Ms. K.'s children who then related it to Ms. K. who then related it to the respondent who then swears to the conversation. Ms. K. then further interviewed K. and reported her conversation to the respondent. [11] The disclosures range from hating his "daddy" (Mr. H.) and wanting him dead, to hurting himself while riding on Mr. H.'s shoulders, to more graphic and extreme actions alleged against Mr. H. [12] K. was examined at the Stollery Children's Hospital in Edmonton. He was x-rayed and the constipation was confirmed; an anal examination revealed no tearing. K. was taken to the police in Alberta but only the respondent and Ms. K. were interviewed; K. was to be interviewed but the respondent did not facilitate that, preferring to bring him to Langley for an investigation. [13] In Langley both the respondent and Ms. K. were interviewed. The next day K. was interviewed by the Langley RCMP; he made no disclosures of concern to the police and no further action was undertaken. [14] While in BC it appears that the respondent also contacted representatives of Ministry of Children and Family Development ("MCFD") in Langley as a result of which an investigation was undertaken by Social Worker Darcy Bannister. An interview of K. by Darcy Bannister was scheduled for January 7, 2014 but the respondent returned to Alberta with K. rather than attend for that interview. [15] Dr. Wong's notes indicate that he was interviewed by Darcy Bannister regarding "child welfare concerns" on January 13 and that he "discussed background information; recent visits - indications for Rx". [16] On February 3 Darcy Bannister provided written confirmation that the investigation "determined that the allegations of sexual abuse could not be substantiated. It was also determined during the investigation that there are no concerns preventing K. from returning to his mother's care and the family home." On February 19 Ms. Bannister wrote further confirmation stating that: My investigation determined that the allegations of sexual abuse could not be substantiated. Therefore the safety plan is no longer required and your husband R.H. can return to the family home. My investigation also determined that there are no concerns preventing K. from returning to the family home. [17] I do note that, although unknown to the respondent in December and January, there are two incidents which do cause at least some concern regarding Mr. H. [18] When Mr. H. was 13 years old he had sexual intercourse with his then 12 year old sister; an investigation by the police and the Ministry resulted in no criminal charges being pursued. [19] On April 12, 2012 the Honourable Judge Hamilton of the Provincial Court of BC made a three (3) month supervision order which provided, among other things, that K.M.B.H. and K. were not to have access to R.H. unless pre-approved by the Director. I was advised that Mr. H. moved out of the family home and lived with one or both of his parents while the order remained in effect. [20] While it appears that that order expired without further incident and that Mr. H. returned to live in the family home with the children with the blessing of the Ministry, I have not been provided with any information as to what led to the order being made in the first place. I am satisfied that the Ministry, and in particular Ms. Bannister, had that information while undertaking her most recent investigation and coming to her conclusions and recommendations. [21] In all of the circumstances, I am of the view that K.'s best interests are served by returning him to the care of the claimant forthwith and I so order. K. has spent his entire life in the care of the claimant; he has resided in the Lower Mainland for his whole life thus far and has an established family and social network here. The status quo clearly establishes that his residence has been here with the claimant. The evidence as presented does not establish that K. is at risk if the status quo is retained pending trial. The orders will go in the terms sought by the claimant in paras. 1-4 of her Notice of Application. [22] The return of K. is however made on the following conditions in light of the concerns raised regarding Mr. H. First, Mr. H. is to vacate the family home and to have no direct contact with K. except as directly supervised by and in the direct presence of the claimant. Mr. H. may have indirect contact with K. by telephone or electonic (Skype) connection as arranged with the claimant. Second, K. shall attend counselling and or play therapy in the Lower Mainland to further investigate the allegations and actions arising in this matter. The parties shall consult regarding which professional is to undertake the counselling/therapy and failing agreement either shall have liberty to apply. [23] This order can be reviewed upon further evidence arising from the counsellor/therapist, regarding the order of Judge Hamilton or otherwise, or after 90 days whichever is sooner. [24] The respondent's application for an order that the style of cause be amended to reflect his correct name, being D.B.C. is granted. [25] The claimant will have her costs in the overall cause. "Master Caldwell"