L.R.H. v. A.K.H.

2003BCSC1201

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.R.H. v. A.K.H., 2003 BCSC 1201 Date: 20030730 Docket: 99 4322 Registry: Victoria Between: L.R.H. Plaintiff And A.K.H. Defendant Before: The Honourable Madam Justice Ballance Reasons for Judgment Counsel for the Plaintiff: Angela Atwood-Brewka For the Defendant: Acting on his own behalf Child Advocate: Harvey I. Wolfson Date and Place of Trial: April 7, 8, 9, 10, 11, 16, 17, 29, 30; May 20, 21; June 30, 2003 Victoria, B.C.

INTRODUCTION [1] This is a family law proceeding. The primary issue in dispute between the parties is the custody of their three children. Also in issue is spousal support.

EVIDENCE [2] I have summarized below the pertinent background facts as well as certain of my key findings of fact. (a) General Background [3] L.R.H. and A.K.H. were married on May 26, 1984 at Edmonton, Alberta. Together they have three children, K.D.R.H., age 14 ("K.D.R.H."), C.E.H., age 11 ("C.E.H.") and S.L.H., age 8 ("S.L.H."). [4] Mr. and Ms. L.R.H. experienced extreme financial difficulty throughout most of their marriage. Over the years, Mr. A.K.H. worked long hours at a variety of jobs and business enterprises. Unfortunately, his endeavours did not yield the positive financial results he hoped for. When they first met, Ms. L.R.H. had been employed for about ten years by the Alberta government as a judicial clerk. She gave up that job upon moving to Victoria when their eldest child, K.D.R.H., was an infant. During the marriage, Ms. L.R.H. occasionally assisted her husband in his business pursuits but did very little work outside the home other than cleaning houses for a period of time. [5] The arrival of the two younger H. children increased the family's financial burden. Eventually they moved into subsidized housing and from time to time collected welfare. They constantly battled bill collectors and landlord's eviction notices. Mr. A.K.H. subsequently became qualified as a real estate agent, however, his earnings have so far been modest. [6] Over the years, certain

members of Ms. L.R.H.'s family, principally, her sister, D.R., and her mother, V.C., provided the family with financial assistance. They purchased a dishwasher, T.V., vacuum and other appliances, an automobile, car insurance and assisted in contributing toward the payment of other on-going expenses. Occasionally they even purchased groceries for the family. [7] As is often the case, the crushing financial stress in the marriage contributed to a breakdown of the parties' intimate relationship. From around the time of C.E.H.'s birth, Mr. A.K.H. slept alone in the laundry room and the parties ceased having sexual relations. On the one subsequent occasion that they were sexually intimate, S.L.H. was conceived. Mr. A.K.H. initially disbelieved that he had fathered S.L.H., however, in time he acknowledged his paternity. [8] Ms. L.R.H. says that Mr. A.K.H. reacted to the financial and marital stress by erupting with angry outbursts directed at her. Those incidents decreased later in the marriage when Mr. A.K.H. began to take anti-depressant medication. [9] In March 1999, Mr. A.K.H. met G.P. through an adult chat room on the internet. Soon thereafter he left the family home and eventually took up residence with Ms. G.P.. [10] Ms. G.P. has a two-year nursing degree and works in Washington State although she resides in Victoria. At the time that she and Mr. A.K.H. began to cohabit, Ms.

G.P. had two children, namely, N.P. ("N.P."), now age 15 and K.L.H. ("K.L.H.") now 8 years old. Together Mr. A.K.H. and Ms. G.P. have one child, T.H., who is 3 years old. [11] At the time of Mr. and Ms. L.R.H.'s separation, the H. children initially remained with their mother in the subsidized housing complex. Relatively soon after separation, the parties adopted a joint custody and co-parenting arrangement on an alternating weekly basis. Although there were deviations from this arrangement, it appeared to be a workable structure and, except with regard to S.L.H., continued uneventfully for a significant period of time. [12] S.L.H. ─ the youngest ─ often clung to her mother and refused to go with her father particularly if it meant staying overnight at his home. The evidence persuades me that for the most part, Ms. L.R.H. did not force S.L.H. to stay at her father's during his custody weeks, although occasionally she did deliver S.L.H. kicking and screaming to Mr. A.K.H.. According to Ms. L.R.H., in a large number of these instances Mr. A.K.H. would call S.L.H. a brat and tell her to stay with her mother. I accept that evidence. Ms. L.R.H. believes that S.L.H.'s resistance results from the fact that because Mr. A.K.H. had doubts as to his paternity of her, he did not spend much time with her as a baby or toddler and, therefore, did not develop the bond that he shared with his

other children, particularly K.D.R.H.. [13] In 1997, Ms. L.R.H. did secure a part-time job as a secretary with her church and was employed there at the time of separation. Mr. A.K.H. has continued to work as a real estate agent with limited success. In 2000 he declared personal bankruptcy. [14] Between approximately December 1999 and March 2003, twelve Court orders were made in this proceeding. The majority of them pertained to various issues surrounding the custody of the children. However, a full custody and access hearing was not held until this trial. [15] Relatively soon after separation, Ms. L.R.H. made clear her desire to move to Kelowna where her sister, mother and brother reside. At some point, Mr. A.K.H. became concerned that Ms. L.R.H. might relocate to Kelowna with the children without his knowledge and/or permission. Consequently, on November 24, 1999, Master McCallum ordered that Ms. L.R.H. not remove the children from Vancouver Island. That order also provided that the parties were to share joint custody and guardianship of their children in a co-parenting arrangement on an equal basis. Master McCallum's order was varied on June 14, 2001 by Mr. Justice Melvin, who stipulated that neither party was to remove the children from Vancouver Island until further Court order or by written agreement between the parties. [16] In the summer of 2001, Ms. L.R.H. brought an

application seeking the Court's permission for her intended relocation to Kelowna. Ms. L.R.H. testified that her desire to relocate to Kelowna was motivated by the fact that she would have the emotional and financial support of her sister, Ms. D.R., her mother, V.C., and her other family members. She had in mind that she and her children would live inexpensively in separate accommodations in her sister's home and she would obtain employment at her brother's store. The basement of Ms. D.R.'s large Kelowna home has a separate entrance, a sitting room, kitchen, bathroom and two bedrooms which Ms. D.R. says could easily be converted into three bedrooms. [17] Ms. L.R.H. says that her circumstances in Victoria had been deteriorating since the separation and I accept that they were. Her financial pressure was mounting and due to her family's own financial constraints, they were unable to continue to provide her with regular financial assistance. As well, Ms. L.R.H. had received only nominal support from Mr. A.K.H. of approximately $1,000 in total. [18] Ms. L.R.H.'s relocation application was adjourned and the Court ordered that Dr. Robert Haymond conduct an investigation and prepare a custody and access report pursuant to section 15 of the Family Relations Act, R.S.B.C. 1996, c.

128. Dr. Haymond's report was completed on October 10, 2001. I will discuss his report in detail later in my Reasons. [19] Ms. L.R.H. testified that in the summer of 2001, K.D.R.H. became reluctant to see her father and by the spring of 2002, she was outright refusing to do so. She complained of headaches, stomach aches and sleep disturbance. Her family doctor referred her to a psychiatrist, Dr. Mark Lauderdale. [20] Dr. Lauderdale prepared an initial assessment of K.D.R.H. in early March 2002. In his assessment report, Dr. Lauderdale remarked that K.D.R.H.'s stomach aches had prevented her from visiting her father a few times and notes that K.D.R.H. stated that she only wanted to see him infrequently. K.D.R.H. complained to Dr. Lauderdale that when she was at her father's home she was required to babysit the younger children. She also mentioned that she hated Ms. G.P.'s son, N.P., for reasons which she emphatically stated were "none of [Dr. Lauderdale's] business" and indicated they pertained to something that had occurred last summer that she planned to disclose later to her mother. Dr. Lauderdale's initial diagnosis was that K.D.R.H. was suffering from an adjustment disorder brought on by the separation of her parents and stress related headaches; he pegged the severity of her stress as 4 out of a maximum of 6. He recommended that K.D.R.H. undergo therapy to address the

issues he had identified. [21] Ms. G.P. testified that she also noticed K.D.R.H. started to pull away from Mr. A.K.H. sometime in March 2002. She said that K.D.R.H. stopped coming for her usual visits altogether in May 2002 and did not resume them again until she was forced to reside at her father's in September 2002 pursuant to a Court order. (described below at para. 27.) [22] Mr. A.K.H.'s evidence concerning K.D.R.H.'s unwillingness to see him was inconsistent. At first he testified that she refused to see him for a short period of approximately two weeks in May 2002. He later testified that there had been two periods where K.D.R.H. refused to visit him; one in May 2001 and the other in May 2002, each of about a three-week duration, but that otherwise she was happy to see him. As was pointed out to Mr. A.K.H. on cross-examination, in an earlier affidavit he had offered yet a different version, namely, that K.D.R.H. had been content to see him until mid-June 2002. I do not consider Mr. A.K.H.'s evidence concerning when K.D.R.H. began to refuse to see him or the duration of her refusal to be reliable. The evidence as a whole supports that K.D.R.H. began to outwardly refuse to visit her father from at least March 2002 and her refusal persisted throughout the spring and summer of that year. [23] Around August 5, 2002, Ms. L.R.H. received an eviction notice for non-payment of

rent and also about that time she was informed that she was going to be laid off from her part-time job at her Church. Ms. L.R.H. said it felt as though her world had come crashing in on her and says that on the "spur of the moment" she decided that she had no choice but to move with the children to Kelowna and she did so. As soon as she arrived in Kelowna, she telephoned Mr. A.K.H. believing that he would understand her actions in light of her eviction and loss of employment. Mr. A.K.H. did not respond in the manner that Ms. L.R.H. had hoped. He promptly obtained a Court order on August 29, 2002, which directed that the children be delivered to him immediately. The order also provided that all three children were to reside with Mr. A.K.H. on an interim basis and that neither party was to remove the children from Vancouver Island pending a further Court order. (b) The Truth or Dare Games [24] After Mr. A.K.H. obtained the August 29, 2002 Court Order but before the children had returned from Kelowna, K.D.R.H. disclosed to her maternal grandmother, V.C., that she, N.P. and her brother, C.E.H., had engaged in a game of truth or dare. The game had inappropriate sexual elements to it. As a result of this disclosure, Ms. L.R.H. contacted the Kelowna detachment of the RCMP. Almost immediately, K.D.R.H. met with Constable Watt of that detachment and gave a full report of the alleged

incidences. Constable Watt also interviewed V.C., Ms. D.R., and C.E.H.. [25] K.D.R.H. explained to Constable Watt that N.P. had pestered her to play the truth or dare games. K.D.R.H. reported that N.P. had threatened to torture her cat and punch and hurt C.E.H. if she did not participate in the games. K.D.R.H. said that she, N.P. and C.E.H. had played the game more than once and that she had told her father about it a number of times and that he had promised to speak to N.P.. She reported that during these games N.P. had compelled her to expose her body and that N.P. had touched her breasts and vagina. She said that N.P. made C.E.H. masturbate. [26] In C.E.H.'s interview, he told Constable Watt that the game was played only once. At one stage of the interview he agreed that during the game N.P. had touched K.D.R.H.'s breasts but at a later stage he stated that he could not remember whether he saw N.P. touch K.D.R.H. during the game. He said that N.P. had not threatened him but added that he believed N.P. had tortured his two birds which had both died. [27] K.D.R.H.'s disclosure temporarily delayed the return of the children to Mr. A.K.H.. However, in early September, 2002 the children were returned to Mr. A.K.H.'s home pursuant to another Court order made on September 6, 2002. [28] The Saanich police assumed conduct of the investigation after the children returned to Victoria.

K.D.R.H.'s disclosure also triggered the involvement in the H./P. home of the Ministry of Children and Family Development (the "Ministry"). The Ministry implemented a safety plan which involved the removal of N.P. from the residence for approximately two months while the Saanich police completed their investigation. [29] At the request of the Saanich police, N.P. underwent a truth verification test. The police report indicates that the test results show deception by N.P. on all relevant questions; however, he made no actual admissions. Mr. A.K.H. says that the police told him they thought N.P. was lying about the incident but Mr. A.K.H. did not agree. The police report further indicates that Mr. A.K.H. informed the police that he wanted K.D.R.H. to submit to an identical test but the police considered such testing of K.D.R.H. to be inappropriate. [30] The Saanich police also interviewed K.D.R.H. and C.E.H.. K.D.R.H.'s statement was generally consistent with the one she had given earlier to the Kelowna RCMP except that she did not report that N.P. had touched her vaginal area. In his statement, C.E.H. confirmed that N.P. had showed him how to masturbate and had dared him to do it. He said K.D.R.H. had "not really" wanted to play and that K.D.R.H. had never dared him to do the "sick sexual stuff". C.E.H. also reported that he and K.D.R.H. and their cousins, J. and A. (Ms. D.R.'s

children), had played a truth or dare game in Kelowna where he had touched K.D.R.H.'s breast and he and J. had run around without their pants. [31] In Mr. A.K.H.'s written statement to the Saanich police department he summarized the events, as he perceived them, from late August to September 20, 2002. Of particular interest is the portion of Mr. A.K.H.'s statement in which he describes the exchange between himself and K.D.R.H. the evening that she returned from Kelowna. It reads as follows: The evening the children are returned to my home I spoke to them altogether and separately. K.D.R.H. began when asked her what happened. She suddenly became very upset and said in a wailing voice "Oh daddy it was terrible...it was horrible...". She was shaking, crying and seemed to me to be near hysteria. I looked at her and said "I am not buying it" [note: the underlined phrase is scratched out in Mr. A.K.H.'s statement and above it is written "tell me about truth or dare".] She suddenly froze, stopped shaking and crying and looked at me and said 'huh?' I commended her ability to act. But told her what rubbish this was. I told her how I couldn't believe that she would do this, accuse N.P. when nothing had happened. [32] Also in evidence were certain handwritten notes made by Ms. G.P. recording the above discussions with all three of the H. children. Among other things, Ms. G.P. wrote "told

K.D.R.H. we believe the game was played and believed her that the dares were what happened but we don't believe that she wasn't a willing participant". [33] Mr. A.K.H. says that the evening the children returned from Kelowna, he and Ms. G.P. emphasized to K.D.R.H. the seriousness of her allegations and that they could result in N.P. going to jail. Curiously, they emphasized that K.D.R.H. might go to jail as well. [34] The Saanich police ultimately concluded that the truth or dare game disclosure did not constitute sufficient grounds to lay a criminal charge against N.P.. They concluded that K.D.R.H. was a willing participant in the games and could have left the situation even though she did not feel as though she could. The police were careful to point out that K.D.R.H. seemed truly afraid of N.P. due to his form of intimidation and threats. The Kelowna incident was not investigated. [35] At trial Mr. A.K.H. made much of the fact that K.D.R.H.'s report to the Saanich police, which she gave after Mr. A.K.H. had warned her of the possibility of N.P. and/or herself going to jail, did not mention that N.P. had touched her vagina, as she had first reported to the Kelowna RCMP. Mr. A.K.H.'s position was that this inconsistency in K.D.R.H.'s evidence supported his contention that the entirety of her evidence about the incident was either exaggerated or untruthful. [36] In my view, Mr.

A.K.H. adopted a disbelieving, even accusatory, attitude in his initial discussion with K.D.R.H. about her involvement in the truth or dare games. Although his objective may have been to illicit the truth from her, his approach and, in particular, describing her allegation as "rubbish" and mentioned the prospect of jail, may well have prompted K.D.R.H. to downplay the incidences and omit reference to N.P. touching her vagina and, to that extent, may have suppressed the truth. What is significant for the purposes of this proceeding is that the evidence demonstrates that K.D.R.H. felt pressured into playing the games with N.P. and did not feel like a willing participant and was extremely upset as a result of her participation. [37] I point out that Mr. A.K.H.'s blaming approach and his refusal to believe that there was any validity to complaints made by K.D.R.H. and C.E.H. is an unfortunate theme which repeats itself throughout the evidence. [38] At trial, Mr. A.K.H. choked back tears when he testified about how horrible the truth verification session had been for N.P.. Yet he expressed no similar passion or emotion in discussing how the games might have adversely affected K.D.R.H. and C.E.H.. Strangely, after complaining emotionally and at length of what he deemed to be the unfair interrogation tactics of N.P. by the Saanich police, Mr. A.K.H. repeatedly queried why for the sake

of "fairness", K.D.R.H. had not been compelled to undergo the same interrogation. In his closing submissions, Mr. A.K.H. denied that he would have ever wished K.D.R.H. to undergo the same interrogation experience. However, his denial was completely at odds with his evidence at trial and his statement to the Saanich police. Throughout Mr. A.K.H.'s testimony on this matter his focus was on N.P.'s well-being and he struck me as being utterly dismissive of the potentially harmful experience suffered by K.D.R.H. and C.E.H.. This disturbing emphasis manifested itself time and again throughout Mr. A.K.H.'s testimony. (c) Foster Care [39] K.D.R.H., who in September, 2002 was 13 years old, did not adjust positively to living with her father and Ms. G.P.. She became depressed and in October, 2002, resumed seeing her psychiatrist, Dr. Lauderdale. Dr. Lauderdale diagnosed K.D.R.H. as suffering from a major depressive disorder which he attributed largely to the stress she experienced from living with her father and not living with her mother. [40] K.D.R.H.'s distress reached a crisis around November 19, 2002. She told her school counsellor that she would harm herself and runaway if she were forced to return to her father's home. The school contacted the Ministry and arranged to take K.D.R.H. to a youth centre. A Ministry social worker, Jennifer Stefik, went to the youth centre to assess

K.D.R.H.'s situation. Mr. A.K.H. met with Ms. Stefik at the youth centre. It was Mr. A.K.H.'s view that K.D.R.H. ought to have been taken, if necessary forcibly by the police, to a hospital to undergo a mental health assessment. Ms. Stefik did not think that Mr. A.K.H. was capable of providing K.D.R.H. with the necessary emotional support called for in such a delicate situation. Ms. Stefik therefore removed K.D.R.H. from Mr. A.K.H.'s care that day. [41] An important observation made by Ms. Stefik about Mr. A.K.H.'s conduct and demeanour that afternoon was that he would not accept the gravity or reality of K.D.R.H.'s distress. He did not believe it was real. [42] Ms. Stefik testified that she advised Mr. A.K.H. of the particulars concerning the Court hearing which would be held to seek an order that the Director of the Ministry be granted interim custody of K.D.R.H.. On November 21, 2002, the Provincial Court granted such an order. Mr. A.K.H. complained at trial that he was never given the hearing details and was therefore deprived of an opportunity to attend it, although he was not clear as to what position he would have adopted at that hearing. Suffice it to say that based on the evidence that I understand was put before the Provincial Court on that application, I have little doubt that the order sought by the Ministry would have been granted even had Mr. A.K.H. opposed

it. (d) Section 15 Report [43] As mentioned earlier, Dr. Haymond prepared a section 15 report on October 10, 2001. [44] As part of his investigation he conducted a Minnesota Multiphasic Personality Inventory - 2 test in respect of both Mr. and Ms. L.R.H.. This is a standardized test aimed at evaluating disturbed mental functioning. The test results indicated that neither party displayed abnormal mental functioning. As well, in the body of his report Dr. Haymond specifically states that Ms. L.R.H. did not appear to be suffering from any major mental disorder. Yet, also in his report he speculates that it is possible that Ms. L.R.H. is suffering from a mood or personality disorder which he purports to diagnose as an histrionic disorder. Later still Dr. Haymond states in his report that Ms. L.R.H. has "what appears to be a reasonably serious mood disorder". [45] The basis for Dr. Haymond's conclusions concerning Ms. L.R.H.'s mental status were explored in his cross-examination. He noted that Ms. L.R.H. had left home and married as a young woman and had sustained five miscarriages without obtaining counselling and that she had been weepy for a sustained period of time. He speculated that any one or more of those events might signal that something was amiss with Ms. L.R.H. although he did not elaborate. Dr. Haymond also mentioned that Ms. L.R.H.'s forty pages of personal writings

which he had reviewed seemed peculiar to him although he admitted that he did not have context of those writings (i.e. whether they were recording dreams or fantasies) and had never discussed them with Ms. L.R.H.. Dr. Haymond was disturbed by the many religious references contained in Ms. L.R.H.'s writings, but again, admitted that he did not have the context of those writings. In attempting to further explain his bases for concluding that Ms. L.R.H. had a personality or mood disorder, Dr. Haymond admitted that he was "fishing around" and although he was trying to put his finger on it, was not able to do so. [46] K.D.R.H.'s treating psychiatrist, Dr. Lauderdale, had also met Ms. L.R.H. a few times in the course of treating K.D.R.H.. In his view, Dr. Haymond's report was internally contradictory on the matter of Ms. L.R.H.'s mental status. He was critical also that Dr. Haymond's report made no reference to any functional symptoms consistent with Dr. Haymond's finding of a mood or personality disorder. Dr. Lauderdale explained, in considerable detail, the criteria of a diagnosis of a histrionic disorder and said that in his view, Ms. L.R.H. did not display any of the underlying features. He interpreted Ms. L.R.H.'s weepy demeanour as a normal and appropriate response to her stressful financial and marriage/custody situation. In a word, Dr. Lauderdale described Dr. Haymond's

diagnosis of histrionic disorder as "ludicrous". [47] Quite apart from Dr. Lauderdale's view of the matter, I find that Dr. Haymond was not able to satisfactorily point to a sufficient factual basis to support his opinion that Ms. L.R.H.'s mental status is impaired. His evidence on this point was, in essence, that there was simply something about Ms. L.R.H. he could not quite identify that led him to the conclusion that she had a serious mental disorder. Mildly speaking, I consider that to be a less than adequate explanation particularly in light of the fact he was making a significant and potentially stigmatizing diagnosis. [48] The other main subject addressed in Dr. Haymond's report is the possible existence of parental alienation syndrome ("PAS") perpetrated by Ms. L.R.H.. In simple terms, PAS refers to the extreme situation in which children are essentially programmed or brainwashed by one parent to promote hatred against the other parent. According to Dr. Haymond there are eight core elements of PAS. They are: 1. a campaign of denigration by the children where they continuously profess hatred of the alienated parent; 2. the children give weak, absurd or frivolous rationalizations for the deprecation of the alienated parent; 3. the children show no ambivalence about their parents: one is entirely "good" and the other only "bad"; 4. the independent thinker phenomenon; 5.

the children offer reflexive and complete support of the "good" parent in the parental conflict; 6. the children do not appear to feel guilty over cruelty to and/or exploitation of the alienated parent; 7. the children's descriptions of the alienated parent sound rehearsed, coached or borrowed; and 8. the children's animosity spreads to the friends or extended family of the alienated parent. [49] Dr. Haymond confirmed that an assessor of PAS would have to consider whether there were genuine reasons for any parental alienation such as conflict arising from a divorce, poor parenting, neglect or abuse. At the heart of the issue is whether there are legitimate facts and circumstances which might justify or at least explain the cluster of alienation symptoms in a particular case. [50] In Dr. Haymond's opinion, PAS was present in this case. In his report, Dr. Haymond concludes that: "Ms. L.R.H. has wilfully and relentlessly attempted to alienate the children from their father and to some extent she has succeeded in her intent. It is obvious that once under the influence of extended family members all of whom have demonized Mr. A.K.H., the alienation will become even more severe". [51] Dr. Haymond testified that although neither party was adequate in terms of their knowledge of child development and child care situations and Ms. L.R.H. needed to learn to discipline on a consistent

basis, overall they were good and loving parents. He noted also that most detrimental to the children was the conflict flowing from the on-going custody dispute. Influenced largely, though not exclusively, by his perception that PAS existed, Dr. Haymond concluded that Ms. L.R.H. not be permitted to relocate to Kelowna with the children as to do so would exacerbate the PAS. He recommended that the parties continue in a joint custody agreement with the primary care of C.E.H. going to Mr. A.K.H. and the primary care of K.D.R.H. and S.L.H. going to Ms. L.R.H.. [52] Dr. Haymond gave no specific examples in his report in support of the contention that Ms. L.R.H.'s extended family "demonize" Mr. A.K.H.. At trial he explained that he based his conclusion on the contents of the affidavits faxed to him sworn in these proceedings by Ms. D.R., V.C. and Ms. L.R.H.'s brother. He considered those affidavits to be demonizing of Mr. A.K.H.. [53] In her affidavits, Ms. D.R. criticizes Mr. A.K.H. for failing (in her eyes) to financially support his family. She deposes at considerable length all of the financial assistance that she and other members of Ms. L.R.H.'s family have had to provide to the family over the years. Ms. D.R. also deposes that she believes Mr. A.K.H. is abusive and admits her opinion of him is "very low". [54] The tone of V.C.' affidavit is also extremely critical. She

variously describes Mr. A.K.H. as a habitual liar, confidence man, a financial leech and short-tempered. She also relates how a number of years earlier Mr. A.K.H. had struck her in the face. At trial, Ms. D.R. explained this particular incident. She testified that she and her mother had been visiting the H. family in Victoria shortly after C.E.H. was born. Mr. A.K.H. was watching sports on television and swearing loudly. Ms. D.R. says she asked Mr. A.K.H. to stop swearing and he refused to do so. He raised his fist to hit Ms. D.R. but Mrs. V.C. walked in between them and Mr. A.K.H. hit Mrs. V.C. in the face. Ms. D.R. recollects that Mr. A.K.H. hit her mother with a closed fist. Mr. A.K.H. does not deny the incident but says he hit his mother-in-law with his open hand and not his fist. As one might expect, after this incident Mr. A.K.H.'s relationship with Ms. L.R.H.'s extended family became deeply fractured and Mrs. V.C. virtually severed all contact with him. [55] There can be no doubt that the contents of the affidavits of Mrs. V.C. and Ms. D.R. are highly critical and negative of Mr. A.K.H.. They obviously harbour an intense dislike of him although in my view, they have at least some reasonable justification for doing so. However, to characterize the contents of their affidavits or the affidavits of Ms. L.R.H.'s brother and father as "demonizing" of Mr. A.K.H. is an

exaggeration particularly when considered in the context of actual events. [56] Dr. Haymond concluded that Ms. L.R.H. had wilfully and relentlessly attempted to alienate the children from Mr. A.K.H. and that she portrayed him as a "menace" to the children. However, his report fails to provide adequate factual examples of such alienation attempts on the part of Ms. L.R.H.; the examples given were weak. As well, he could not even be sure whether the one instance he gave of Ms. L.R.H.'s allegedly portraying Mr. A.K.H. as a menace, was even carried out in the presence of any of the children. Unfortunately I found Dr. Haymond's evidence at trial on this specific matter to be no more enlightening. [57] Given the absence of a satisfactory underlying factual basis supporting Dr. Haymond's conclusion that PAS exists in this case, I attribute little weight to it. [58] Dr. Haymond testified that following the preparation of his report he had contact on a number of occasions with Mr. A.K.H. and Ms. G.P.. At trial he admitted that as a consequence of those multiple communications with them he was not able to rule out the possibility that he may have become biased in favour of Mr. A.K.H.. It was also apparent at trial that he was very personally upset by the harsh criticisms Ms. L.R.H. had made about his report in an e-mail she had sent him. [59] At trial, the Child Advocate, Mr. Wolfson,

relayed to Dr. Haymond some of the statements recently made to him by each of the three children. They included the following: Comments made by K.D.R.H. Ø had not been sleeping well since returning from visit with her mother at Spring Break; Ø was doing better at school; Ø was not seeing her father and that he is a selfish pain in the ass and this is all about him; as long as I'm stuck here I won't speak to or see him; Ø knew that the social worker was coming to Court to testify; Ø feels sorry for N.P. having to live with her father; Ø N.P. smokes dope and there are no rules or boundaries in the house except if Ms. G.P. is there and then there is over-enforcement; Ø Mom can yell a lot but is not uncontrollable like dad; Ø wishes all of the kids could be taken out of dad's home so that he would learn he is doing something wrong; Ø is still bothered by the fact that her father called her a liar. Siblings don't tell the truth because dad would beat the living hell out of us. No one in dad's house gets emotional support; Ø dad only acts nice so he can get money; Ø once I move to Kelowna, dad won't have power over me; Ø used to be best friends with dad but didn't see his lies; Ø love and miss my dad. Comments made by C.E.H. Ø is angry and stressed out and wants to live with his mom; Ø N.P. does drugs in the house; smokes it in a pipe. Dad and Ms. G.P. said they would tell Mr.

Wolfson; Ø N.P. was watching porno again on the VCR and trying to get me to watch it; Ø N.P. says he wants to kill my dad; Ø Mom wanted me to tell you that dad showed me a portion of her diary which refers to mom doing sexual stuff and I looked at it and it made me feel very mad; Ø hopes there is something good for dinner tonight and not pork chops again; Ø dad is a jerk; Ø hates N.P. and only goes into his room in order to play videos; Ø likes to go out with N.P. and have him as a big brother. Comments made by S.L.H. Ø looking forward to Easter; Ø prefers to live in Kelowna with her mom and would like to visit her dad; Ø mommy can pick us up from a foster home. [60] Dr. Haymond attributed the entirety of all of the children's criticisms of Mr. A.K.H., N.P. and Ms. G.P. exclusively to the manifestation of PAS. He was not able to concede that it was even possible that K.D.R.H. might have a rational basis for being angry at her father on the grounds that he had refused to believe her disclosure of inappropriate sexual conduct on the part of N.P.. To my mind, Dr. Haymond's response concerning this specific point defied common sense. He dismissed out of hand the possibility of there being any legitimate concerns raised by the children's comments about N.P.'s use of drugs and viewing of pornography and the discipline issues in the H./P. home. In my view, Dr. Haymond demonstrated a

lack of balance during this exchange with Mr. Wolfson. I find that he had lost his objectivity and had become partial to Mr. A.K.H.'s position. Consequently, his evidence at trial, especially as it pertained to PAS, was of little assistance to the Court. (e) Dr. Lauderdale [61] K.D.R.H.'s treating psychiatrist, Dr. Lauderdale, also testified at trial. He did not agree with Dr. Haymond that Ms. L.R.H. was deliberately programming the children to alienate Mr. A.K.H.. In fact, he indicated that it was Mr. A.K.H.'s conduct which was objectionable and alienating. Mr. Wolfson submits that Dr. Lauderdale appeared to be much more aligned with Ms. L.R.H. than with Mr. A.K.H.. I agree that overall, Dr. Lauderdale's evidence was more sympathetic of Ms. L.R.H. than of Mr. A.K.H., but I did not find that his evidence lacked objectivity or was biased. Moreover, the value of Dr. Lauderdale's evidence in this proceeding is not about whether one or other of the parties has been fostering PAS; rather the value of it is found in his observations and diagnosis of K.D.R.H.'s mental status. [62] Dr. Lauderdale met with K.D.R.H. on approximately fifteen different occasions. He saw C.E.H. and S.L.H. each on two occasions. He met also with Ms. L.R.H., Mr. A.K.H. and Ms. G.P.. [63] Although neither stated it outright at trial, the position of Mr. A.K.H. and Ms. G.P. was that K.D.R.H. was not depressed

but had actually manipulated Dr. Lauderdale and others into believing that she was depressed in order to live with her mother. For example, Mr. A.K.H. told Dr. Lauderdale that K.D.R.H. had purposely stayed up the night before one of her appointments with him in order to create bags under her eyes and to appear overly tired. In light of Mr. A.K.H.'s comments, Dr. Lauderdale contacted K.D.R.H.'s school counsellor who, in turn, surveyed her teachers. Their observations were in accordance with those of Dr. Lauderdale, namely, that K.D.R.H. seemed tired and depressed. They noted also that her once stellar academic performance had dropped to a mostly C grade level. [64] In Dr. Lauderdale's opinion, K.D.R.H. displayed numerous signs of clinical depression over the course of her treatment. While he acknowledged that K.D.R.H. was an intelligent young woman who might be able to manipulate a situation to her own end, he stated that the depression symptoms which he observed in her over time were simply not capable of being faked. He did acknowledge however, that there may well have been some degree of exaggeration by K.D.R.H. of her symptoms. Even so, his strong view was that K.D.R.H. had become genuinely and seriously depressed as a result of living with her father and not with her mother. Mr. A.K.H. gave no validity to Dr. Lauderdale's assessment of K.D.R.H. and stood by his view that

her purported depression was merely an elaborate ruse concocted by a manipulative 13-year old girl. I accept Dr. Lauderdale's opinion. [65] Dr. Lauderdale observed that in his presence Mr. A.K.H. and Ms. G.P. adopted an attitude of blaming K.D.R.H. and of not believing the concerns she expressed. Dr. Lauderdale said that their attitude caused K.D.R.H. to become even more distressed and angry at her father. He also said Mr. A.K.H. lacked empathy in his interactions with her. These observations of Mr. A.K.H.'s manner of interacting with K.D.R.H. are consistent with other evidence in this trial. [66] Dr. Lauderdale believes that K.D.R.H. would be better served by being primarily cared for by her mother. It was Dr. Lauderdale's opinion that given the acrimony between K.D.R.H. and Mr. A.K.H. counselling them together at this stage would be futile. Instead, he says K.D.R.H. should be given an opportunity to reconcile with her father over time and then attend counselling with him in the future as things between them hopefully settle down. (f) Evidence of Other Witnesses [67] C.L., K.D.R.H.'s foster mother, testified at trial. She gave her evidence in a thoughtful and balanced way. She stated that she had not seen signs of Ms. L.R.H. attempting to alienate the H. children from their father. She observed a close and loving relationship between the children and their mother. [68] Ms.

C.L. noted that when K.D.R.H. first came into her care she was very angry, cried a great deal and was emotionally unstable. She has observed a change for the better which she attributes chiefly to K.D.R.H.'s sessions with Dr. Lauderdale. [69] Ms. C.L. agreed that K.D.R.H. could be manipulative and sneaky at times. She testified that she has sometimes told K.D.R.H. that she finds her to be manipulative, but added that in her view, most 14-year old girls can be manipulative. K.D.R.H. has acknowledged to both Ms. C.L. and Mr. Wolfson that there is a benefit to her refusing to visit with her father while she is in foster care, in that Mr. A.K.H. will then not be able to say that K.D.R.H.'s move to Kelowna will be detrimental to their relationship because there is no present relationship. [70] After K.D.R.H. was placed into foster care a meeting was arranged for her to see her father. The visit took place at a crowded, public restaurant and was attended by Ms. C.L., K.D.R.H. and a number of other children. Ms. C.L. said that she was interrogated by Mr. A.K.H. at this meeting and felt very intimidated by him. In response, Mr. A.K.H. says he was simply trying to gather information about his daughter and considered it perfectly normal for him to ask his questions. Apparently, K.D.R.H. made it quite obvious by her words and actions that she did not wish to be there. Mr. A.K.H. left soon

after the meeting began and has been criticized for prematurely ending it. I agree with Mr. Wolfson's submission that such criticism is unfounded because the place and structure of the meeting were inappropriate and insensitive, and not of Mr. A.K.H.'s making. [71] Ms. C.L. testified that C.E.H. was distant and uncommunicative during his first sibling visit with K.D.R.H.. C.E.H. mentioned that his father had shown him his mother's forty pages of personal writings which included sexual references and insisted that K.D.R.H. ask their mother for an explanation. There is no doubt Mr. A.K.H. demonstrated very poor judgment in permitting his young son to have this information. Regrettably, it seems that at one time or another each parent has involved one or more of the children in some aspect of this litigation. It should be obvious to them that such involvement is not only highly inappropriate, it is potentially damaging to the children and serves no one's interest. [72] Mr. M.L., the past principal of T.[ ] in Victoria where the children had formerly attended school for many years, testified. In his view, both Mr. and Ms. L.R.H. were good parents and were willing to sacrifice to give their children a good education. He confirmed that he had told Dr. Haymond that Ms. L.R.H. had taken steps to limit Mr. A.K.H.'s ability to pick up the children from school. He clarified, however, that

those comments pertained to a particularly unique 2-3 month period when Ms. L.R.H. was fearful that Mr. A.K.H. might attempt to move the children to the U.S. but does not recall whether or not he made that point clear to Dr. Haymond. He also testified that he had been present on occasions when Ms. L.R.H. explained to the children they must go on their access visits to Mr. A.K.H.'s and that she did not portray it as a necessary evil. It was Mr. M.L.'s observation that Mr. A.K.H. was good with the children and that the children enjoyed their father. [73] The former pastor of Ms. L.R.H.'s church, J.D., testified on behalf of Ms. L.R.H.. He was Ms. L.R.H.'s employer when she worked at the church. He noted that she was a conscientious employee but sometimes disorganized and not always punctual. He pointed out as well that Ms. L.R.H. received so many telephone calls and visits from the children during the work day that a less tolerant employer might not have continued her employment. He testified that there was some possibility that Ms. L.R.H. could have returned to work after being laid-off but admits that he does not know whether the Church would have been in a position to rehire her. Mr. J.D. had never heard Ms. L.R.H. speak negatively about Mr. A.K.H. in front of the children. In fact, he says that she told him that she wanted the children's relationship with their father to

continue. Mr. J.D. does acknowledge that there was a time when S.L.H. was refusing to visit her father and he recalls Ms. L.R.H.'s response as being, "I can't do this to my kid," even though there was a Court order for joint custody in place. [74] According to Ms. Stefik, Ms. L.R.H. has generally been very positive about the children maintaining a relationship with their father and says she reassures the children that their father loves them. [75] Ms. Stefik was not as positive about Mr. A.K.H.'s parenting. One of the concerns she expressed pertained to Mr. A.K.H.'s demonstrated lack of empathy for his children. Her perception was that Mr. A.K.H. was focused on trying to prove that K.D.R.H. was wrong rather than demonstrating support and understanding of her feelings. Ms. Stefik was also concerned about the heavy demands placed on K.D.R.H. to babysit the younger children when she was emotionally incapable of doing so. In my view, these concerns are well-founded. [76] Ms. Stefik also testified about the difficulties she encountered in obtaining Mr. A.K.H.'s agreement to allow K.D.R.H. to leave foster care and visit her mother during Christmas 2002 and Spring Break 2003. Ms. Stefik said that Mr. A.K.H. had initially attempted to prevent those visits from occurring unless K.D.R.H. also spent part of the holiday time with him. [77] At one point in his testimony Mr. A.K.H. sought to

persuade the Court that there had been a misunderstanding of the position he had taken on this matter. He said he had simply tried to explain to Ms. Stefik that because of the last Court Order, a further Court Order granting K.D.R.H. permission to travel to Kelowna would be necessary. Yet at a different stage in his testimony Mr. A.K.H. said that his objection was that he wanted to ensure that the other children ─ and not just K.D.R.H. ─ were permitted to travel to Kelowna for a Christmas visit. I see that Mr. Wolfson had to write a letter to Mr. A.K.H. in the hope of persuading him to agree that K.D.R.H. be able to stay with her mother for Christmas. I have no doubt that Mr. A.K.H. did, at least initially, oppose K.D.R.H. spending Christmas exclusively with her mother and I find the evidence he offered at trial in an attempt to justify his extreme position to be implausible. [78] Ms. G.P. testified as part of Mr. A.K.H.'s case. She is away from the home for three or four days per week while working in Washington State. It was abundantly clear from the outset of her evidence that she has a very low opinion of K.D.R.H.. She described K.D.R.H. as extremely defiant, spoiled, and manipulative. She complained that K.D.R.H. tried to get her son, N.P., into trouble over everything. She harbours a very negative attitude about the religion of Ms. L.R.H. and her children. [79] Ms. G.P.

is very doubtful that there was any coerced truth or dare game playing between K.D.R.H. and N.P. or that K.D.R.H. had felt upset or violated as a result of her participation. In support of her view, she observed (as did Mr. A.K.H.) that within a few days of K.D.R.H. returning to their home in September 2002, she was found down in N.P.'s room wanting to play video games with him even though that was contrary to their house rules. Ms. G.P. says K.D.R.H. would not have had anything to do with N.P. if a conflict between them truly existed. [80] Ms. G.P. admitted that over the years there had been multiple complaints concerning N.P. made to the Ministry and/or to former landlords by at least one neighbour. She also acknowledged that there had been complaints to the Ministry regarding her other children. As to the complaints concerning N.P., these included his writing graffiti on the sidewalk, abusing his mother, starting a fire and also intimidating other children in the housing complex. Ms. G.P. also knew of an allegation that N.P. had tortured animals. She was also aware of an investigation into whether N.P. had written a note addressed to a student in the United States threatening to physically harm him. N.P. had told his mother that the note was "nothing" and she evidently accepted that explanation. [81] Ms. G.P. and Mr. A.K.H. both confirmed that they have recently discovered

that N.P. was growing pot in the house and say they are treating that very seriously. They deny that he is watching pornography except for perhaps seeing the odd naked image that appears on T.V. [82] Ms. G.P. admits that she does have concerns about N.P.'s general well-being; he seems lethargic and depressed. Ms. G.P. testified that N.P. is not physically affectionate with any one except his grandmother and, in fact, has an aversion to being hugged or touched even by Ms. G.P.. She says that when she tries to hug him he runs away saying "leave me alone". However, she has taken no independent steps of any description to have him assessed or to have him receive counselling. When both she and Mr. A.K.H. were cross-examined about the lack of counselling for N.P. they purported to justify their own inaction by casting blame on the Ministry for failing to set up promised counselling sessions. It is clear to me either that they do not truly believe that N.P. requires counselling or they are incapable of appropriately dealing with that need by arranging for counselling. (g) Monitoring Communications [83] After the children returned to Mr. A.K.H.'s home in September, 2002 he taped all of their telephone conversations with their mother. Mr. A.K.H. was not prepared to agree that it was inappropriate to do this and only ceased doing so upon the Ministry's adamant direction. He played those

taped conversations for the Court and submitted that they demonstrated that Ms. L.R.H. was attempting to alienate the children from him. Only parts of their conversations were captured on the tapes. [84] It is a dangerous and largely unproductive enterprise to attempt a word-by-word evaluation of these tapes especially given that they do not record the entirety of the conversations. That said, in reviewing them, I do not find that they portray Ms. L.R.H. as attempting to alienate her children from Mr. A.K.H.. Overall, I did not find her tone, the night time prayers she offered her children or the topics of conversation inappropriate conduct for a concerned parent who resides in a different city. [85] Mr. A.K.H. alleges that K.D.R.H. is trying to influence S.L.H. and C.E.H. to follow her into foster care and thereby get one step closer to being placed with their mother. Dr. Haymond also cautioned that K.D.R.H. was influencing the younger children to become alienated from Mr. A.K.H.. All of the children's e-mail communications and computer MSN messaging have been under surveillance by Mr. A.K.H. for many months. Mr. A.K.H. asserted that certain hard copies of those communications were evidence of K.D.R.H.'s alleged grand plan with her siblings. [86] The email communications in evidence were selectively chosen by Mr. A.K.H. and it is reasonable to infer that they do not represent

the entirety of the communications between K.D.R.H. and her siblings. There is no doubt that these communications indicate that the H. siblings are communicating to some degree about the custody battle between their parents. It is undeniably a significant component of their lives at this particular point in time. I do not consider these communications as supporting the assertion that K.D.R.H. is actually trying to assist her siblings to get into foster care. [87] Ms. C.L. denies that there have been any opportunities for K.D.R.H. to coach her siblings along these lines, but, at the same time admits that K.D.R.H. is bright enough that she could find openings to do so if she was determined. However, I do think it reasonable to infer that K.D.R.H. has helped plant in the minds of her siblings the notion that getting into foster care might help get them to live with their mother. Certainly S.L.H. in her comments to Mr. Wolfson spoke of foster care as being one step closer to living with her mother. Even so, by no means do I think that it necessarily follows that any such action by K.D.R.H. means that Ms. L.R.H.'s alleged alienation tactics are being realized in part through K.D.R.H.. To the extent K.D.R.H. may be involved in this conduct, I think it could reasonably be said to be motivated by her genuinely held belief that her siblings should leave an environment which she could not herself bear, so they can ultimately live with their mother, which all the children have expressed a strong desire to do.

ANALYSIS AND DISPOSITION [88] At the outset, I will make some additional observations about the parties' evidence. [89] At trial, Mr. A.K.H. was occasionally inappropriately glib and frequently seemed to be deliberately trying to confuse by his answers to simple questions in cross-examination. There were many examples also of Mr. A.K.H.'s evidence being contradictory and examples where he was somewhat careless with the truth. For the most part, I consider his evidence on significant matters to be unreliable without corroboration. [90] I found that Ms. L.R.H.'s evidence was at times evasive when faced with difficult questions. Like Mr. A.K.H., she was prone to launch into baffling monologues as a means of avoiding or confusing answers to relatively straightforward questions. At times, and particularly when questioned by Mr. Wolfson, she was overly defensive to the point of being non-responsive entirely. [91] Additionally, I was disappointed that Ms. L.R.H. did not acknowledge in a forthright way - but only after repeated probing ─ that she was in breach of a Court Order in moving the children to Kelowna in August, 2002. While I accept that Ms. L.R.H. had reached the end of her rope in August, 2002 when she was told she was being laid off and received an eviction notice, I am not persuaded that her decision to move to Kelowna was made spontaneously. It takes planning to pack up a

household and arrange for Kelowna family members to travel to Victoria and assist in moving four people. Ms. L.R.H.'s evidence concerning the entire episode was confusing, perhaps deliberately so. At one point she even appeared to suggest that because she had obtained Mr. A.K.H.'s permission to take the children camping, she was somehow entitled to take them to Kelowna. [92] There is no starting presumption taken by the Court as to the type of custody order that ought to be made in any particular case. What the Court is concerned with is to achieve the arrangement that is in the best interests of each child in his/her unique circumstances. It is a highly individualized assessment. [93] In deciding whether parents should share joint custody or one parent should have sole custody, the Court makes a full and sensitive inquiry of the best interests of the children, as determined by reference to the conditions, means, needs and other circumstances of the children and the parental conduct that bears on that consideration. The best interests of the children are to be found within the practical context of the reality of the parents' lives and circumstances (Robinson v. Filyk (1996), 84 B.C.A.C. 290). As part of its assessment, the Court will also consider the willingness of each parent to facilitate contact with the other. [94] The leading case concerning a change of custody and relocation of children is the Supreme Court of Canada discussion in Gordon v. Goertz, [1996] 2 S.C.R.

27. In that case, Madam Justice McLachlin articulated the matters that a trial Judge should consider: (a) the existing custody arrangement and the relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) a custodial parent's reasons for moving, only in the exceptional case where it is relevant to the parent's ability to meet the needs of the child; (f) the disruption to the child of a change in custody; (g) the disruption to the child consequent on removal from family, schools, and the community he/she has come to know. These considerations, with some minor adjustments, are relevant as well on an initial custody hearing (Nunweiler v. Nunweiler, 2000 B.C.C.A. 300). [95] In this case the determination of custody is a difficult one. It is clear that both parents love their children. In assessing the best interests of each of the H. children there are factors which support custody to the mother and those which support custody to the father; the key here involves weighing those factors within the overarching consideration of what is in their best interests. [96] On the evidence as a whole, I do not doubt that Ms. L.R.H., her sister and mother have referred to Mr. A.K.H. in

derogatory terms in the presence of one or more of her children and on more than one occasion. There was evidence of the mother doing so as recently as a few months ago. On the other hand, there was also evidence that Ms. L.R.H. will not sit idly by when a third party criticizes Mr. A.K.H. in front of her children. [97] Negative attitudes ─ even extreme ones ─ about one parent ─ by the other parent and members of her family is not one and the same as PAS and there is nothing to suggest that the former necessarily evolves into the latter. In my view, there are many counter-indicators in the evidence of the eight core features of PAS. For example, the evidence in this case falls significantly short of demonstrating that Ms. L.R.H. and/or her extended family have attempted to program the H. children to engage in a campaign of denigration of Mr. A.K.H. of the kind associated with PAS. Nor does it demonstrate that the children have even participated in on-going and unambivalent denigration of their father; indeed their conduct has been far more equivocal. I believe also that all of the children, and K.D.R.H. in particular, have legitimate reasons for being disappointed by and critical of their father's conduct. [98] In considering the evidence as a whole, I do not accept that PAS is at play in this case. That does not mean that I am without concern about the impact of the negativity

felt towards Mr. A.K.H. by Ms. L.R.H., her sister and mother. In this regard I note that Mr. Wolfson certainly identified some concerns when he met with Ms. L.R.H. and members of her family in Kelowna. It would be naïve to think that some of their antipathy might not reveal itself to the H. children from time to time. [99] It was evident from Ms. D.R.'s testimony at trial that she is extremely hostile toward Mr. A.K.H.. In fact, she strikes me as being more overtly negative about him than does Ms. L.R.H.. Although when evaluated in the context of actual events it is not surprising that Ms. D.R. dislikes or even loathes Mr. A.K.H., I am concerned that she, more than anyone in Ms. L.R.H.'s family, would have difficulty concealing her negativity in front of his children. At the same time, she also struck me as a nurturing and loving aunt to the H. children. [100] Since August 2002, Ms. L.R.H. has continued to reside in Kelowna with her sister, Ms. D.R., and her sister's two children, J., age 13 and A., age 9. Ms. L.R.H.'s mother, V.C., resided at Ms. D.R.'s home until November 2002, at which time she moved into her own apartment. [101] It is obvious that if the children reside in Kelowna it would impact on the frequency of Mr. A.K.H.'s access, but it would not prevent or unreasonably impede it. Although I found that Ms. L.R.H. was not forthcoming in some aspects of her evidence, I

do accept as credible the reasons she has given for her move to Kelowna. I am satisfied that Ms. L.R.H. has opportunities in Kelowna that she does not have in Victoria to regain her emotional stability and establish employment and hopefully gain an enhanced sense of self-worth. It is important to her children that their mother be functioning in an independent and positive way and that was not occurring in the poverty-stricken circumstances surrounding her in Victoria. I do not think that her move was motivated to diminish the frequency of or restrict the children's contact with Mr. A.K.H. or by any other improper motive. [102] I was impressed that when the Ministry was critical of Ms. L.R.H. for using a wooden spoon to discipline the children she ceased doing so immediately and enrolled herself and the children in counselling. In contrast, repeated suggestions to Mr. A.K.H. that he enrol in empathy training and anger management therapy have not been acted upon. He was dismissive of any anger management problems he may have. Mr. A.K.H.'s lack of empathy toward K.D.R.H. is a deficiency which has been identified by every professional involved with this family, including Ms. Stefik, Mr. Wolfson, Dr. Haymond, Dr. Lauderdale and a family counsellor, Mr. Chant. He has been told repeatedly that he requires such training. While Mr. A.K.H. has certainly paid lip service to participating

in such training and says that he is on a waiting list for enrolment in a program that may or may not cover it, at the end of the day, I am left to question whether Mr. A.K.H. truly plans to act on that advice. As Mr. Wolfson puts it, Mr. A.K.H. needs to "put his money where his mouth is" on this and other matters. [103] I find that Mr. A.K.H.'s actions and lack of action in relation to his children and himself has been governed more by a desire to maintain harmony in his new family life with Ms. G.P. than it is in promoting the best interests of the three children. He appears to be motivated by a desire to not rock the boat with Ms. G.P.. In fact, he admitted on cross-examination that if N.P. were viewed as a problem in his new family unit, that could cause friction in Mr. A.K.H.'s relationship with Ms. G.P.. Mr. A.K.H. seems at the ready to turn a blind eye to any possibility that N.P. might be a problem vis-à-vis his three children. In my view, he has made his relationship with Ms. G.P. a higher priority than the well-being of his children. [104] On a number of fronts Mr. A.K.H. has not acted in a manner consistent with K.D.R.H.'s best interests. Ms. G.P. blames K.D.R.H. for getting N.P. "into trouble" and resents her for it. Her view is somewhat understandable given that she is N.P.'s mother, but even recognizing that, I consider Ms. G.P.'s view of K.D.R.H. to be

overwhelmingly negative. It would be difficult for an adolescent to flourish and feel nurtured in an environment tainted with such blame and negativity. [105] K.D.R.H.'s preference to reside with her mother has been clear from the outset. If a custody order is made contrary to the wishes of a teenager, there is a high risk that the teen will simply not comply with the order. Accordingly, in general terms, for a custody order covering a teenager to be practical it must reasonably conform with the wishes of the child if possible (O'Connell v. McIndoe (1998), 42 R.F.L. (4th) 77 (B.C.C.A.)). [106] Accordingly, it is abundantly clear to me that it is in K.D.R.H.'s immediate and future best interests that she reside with her mother even though that entails residing, at least for now, in Kelowna at Ms. D.R.'s home. On May 21, 2003 at the conclusion of the evidence at trial and following the submissions concerning K.D.R.H., I ordered that Ms. L.R.H. have sole custody of K.D.R.H. with these reasons to follow. [107] S.L.H. and, until very recently, C.E.H. have also consistently maintained that they wish to live with their mother. Prior to the continuation of the last day of this trial, C.E.H. informed his father and Mr. Wolfson that he had changed his mind somewhat and was now feeling 50/50 about living with his mom and his dad. Mr. A.K.H. agreed that S.L.H. and C.E.H. would very much

miss K.D.R.H. if she lived with her mother and they did not, although he believed they would adjust in time. Mr. A.K.H. says he has no concerns about N.P. babysitting S.L.H. or the other children. However, the Ministry has, I believe quite appropriately, expressed concern. [108] It is incumbent upon me to consider not only the immediate best interests of S.L.H. and C.E.H., but also their long-term interests as they move into adolescence (Van Gool v. Van Gool (1993), 1 R.F.L. (4th) 20 (B.C.C.A)). I am concerned that unless Mr. A.K.H. adjusts his priorities and commits to learn improved parenting and empathy skills he will alienate S.L.H. and C.E.H. the way he has K.D.R.H.. Based on his past conduct, I think it reasonable to suppose that if either of C.E.H. or S.L.H. raise complaints about N.P., Mr. A.K.H. will be more prepared to accept N.P.'s denials than to support or even investigate his own children's complaints. [109] C.E.H. in particular has been teetering on the brink of an emotional and/or psychological crisis for a sustained period of time. Ms. L.R.H. identified problems with C.E.H. some time ago and asked Dr. Lauderdale to meet with him. Mr. A.K.H. threatened Dr. Lauderdale that if he met with C.E.H. (or S.L.H., for that matter) he would sue him. Dr. Lauderdale found Mr. A.K.H.'s reaction highly unusual. He relayed to Mr. A.K.H. that concerns had been expressed by

C.E.H.'s school about C.E.H.'s conduct and performance. Mr. A.K.H. assured him that C.E.H.'s needs would be attended to, but they have not been. It is clear that C.E.H.'s level of distress has increased significantly while living exclusively with Mr. A.K.H.. He has by no account adjusted well to that living arrangement. He has just recently reported to the social worker, Ms. Natalie Proctor, that "he feels nothing now". He has also told both parents that he feels suicidal. [110] Mr. A.K.H. says there is an approximate nine-month waiting list for C.E.H. to see a psychiatrist. He says that the only psychiatrist available to treat C.E.H. immediately is Dr. Lauderdale and he objects to Dr. Lauderdale's involvement. Mr. A.K.H. seems content to basically throw up his hands saying there is nothing more for him to do and no choice but to wait the nine months. I do not find that approach satisfactory or responsible. It seems to me that Mr. A.K.H. is disinclined or incapable of, at a minimum, attempting to pursue some other possible avenues to obtain the psychiatric assistance that his son so desperately needs, and has needed for some time. Steps he could explore were suggested by Mr. Wolfson and include seeking the possible assistance of the Ministry for a referral to a psychiatrist other than Dr. Lauderdale, inquiring as to the availability of a psychiatrist at the Victoria General

Hospital or the Children's Hospital in Vancouver or some other appropriate facility which might be available to see C.E.H. on an emergency basis. Although S.L.H. has adapted somewhat more positively than has C.E.H. to residing with her father and Ms. G.P., the social worker, Ms. Proctor, testified that her school recently reports that she is needy, dirty, unkempt and cognitively delayed. I am by no means persuaded that S.L.H. is flourishing in her present situation and that residing with her father is in her best interests. The status quo is just not acceptable. [111] Despite this litigation, Mr. A.K.H. has described Ms. L.R.H. as a good mother on many occasions and Ms. L.R.H. has described Mr. A.K.H. in much the same way. They have been remarkably co-operative in some of their recent dealings concerning the children. Mr. A.K.H.'s relationship with C.E.H. and S.L.H. is not as damaged as it is with K.D.R.H.. Accordingly, and in contrast to the situation with K.D.R.H., I think it appropriate that the parents have joint custody of S.L.H. and C.E.H.. Their primary residence and day-to-day care shall be with Ms. L.R.H.. (a) Access [112] I believe that it is in the long-term best interests of K.D.R.H. for Mr. A.K.H. to have generous access to her. However, in the circumstances, his access should be implemented gradually over the next number of months. Accordingly, until November

2003, access between Mr. A.K.H. and K.D.R.H. will be exercised through e-mail and telephone communications only. At this stage, I would not think it appropriate to engage in that mode of access on a daily basis and, in ordinary circumstances, I would expect it would not exceed about three times per week in total. However, I do not propose to specify the number of communications which Mr. A.K.H. is entitled to initiate during this early phase, as I prefer to leave that to his judgment. [113] In November 2003, Mr. A.K.H. will be entitled to exercise in person access with K.D.R.H. on one weekend. The specific weekend should be agreed upon in advance between the parties, however, if they are unable to agree, then Mr. A.K.H.'s access will fall on the last weekend of November. [114] K.D.R.H. will spend Christmas Eve and Christmas Day 2003 with her mother. After December 26, 2003 she will spend five consecutive days of her 2003 Christmas holidays with her father. There will be no additional weekend access in December. [115] Beginning January 1, 2004, Mr. A.K.H. will be entitled to have access to K.D.R.H. one weekend every month. Again, the weekend will be as agreed in advance between the parties and failing their agreement, will fall on the last weekend of each month in which the specified weekend has not otherwise been agreed to. [116] In addition, Mr. A.K.H. shall be entitled to

access for five consecutive days of every Christmas school break and may exercise that access on Christmas Day in 2004 and thereafter in alternating years. He shall also be entitled to access during the Spring school break and the full Easter weekend, in alternating years. In addition, Mr. A.K.H. shall be entitled to access of four weeks during the summer school holidays of each year. Those four weeks are to be selected at Mr. A.K.H.'s option by giving written notice to Ms. L.R.H. before April 30 of each year. Unless agreed otherwise by the parties in writing, the four weeks are to be consecutive. [117] C.E.H. and S.L.H. are to continue living with their father no later than August 8, 2003. Thereafter, they will reside with Ms. L.R.H. in Kelowna. Mr. A.K.H. will be entitled to access one weekend per month beginning in September 2003. In the event the parties are unable to agree to the specific weekend in advance, then it will be the last weekend of each month in respect of which they cannot agree. The access at Christmas and during Spring Break, Easter and summer holidays will be the same as set out above for K.D.R.H.. [118] Access will occur in Victoria unless the parties otherwise agree in writing. [119] The parties are at liberty to expand Mr. A.K.H.'s access by written agreement. [120] For sake of clarification, if regularly scheduled weekend access falls during the

Christmas, Spring school break, Easter or summer school break, then it is to be incorporated into such longer access period so that there are not two separate occasions of access during those months. [121] In order to facilitate access, all of the H. children are to be delivered or collected, as the case may be, to or at the Tsawwassen Ferry Terminal. The ferry costs and all other expenses incurred in respect of transporting the children from Victoria to the Tsawwassen Ferry Terminal and vice-versa, are to be borne by Mr. A.K.H.. The costs of the expenses incurred by Ms. L.R.H. in delivering the children from Kelowna to the Tsawwassen Ferry Terminal and collecting them there are to be borne by her. (b) Guardianship [122] I further order that Mr. and Ms. L.R.H. have joint guardianship of their three children. Joint guardianship will mean as follows: (a) the parents are the joint guardians of the estates of the children; (b) in the event of the death of either parent, the remaining parent will be the sole guardian of the persons of the children; (c) Ms. L.R.H. who has the primary responsibility for the day-to-day care of the children will have the obligation to advise Mr. A.K.H. of any matters of a significant nature affecting the children; (d) Ms. L.R.H. will have the obligation to discuss with Mr. A.K.H. any significant decisions which have to be made with respect to the

children including significant decisions concerning the health (except for the emergency decisions), education and general welfare of the children and Mr. A.K.H. will have the obligation to discuss these issues with Ms. L.R.H. and each parent will have the obligation to try to reach agreement with respect to those major decisions; (e) in the event that Mr. and Ms. L.R.H. cannot reach agreement with respect to any major decisions despite their best efforts, Ms. L.R.H. will have the right to make such decision and Mr. A.K.H. will have the right under the Family Relations Act to seek a review of any decision which that parent considers contrary to the best interests of the children; (f) each parent will have the right to obtain information concerning the children from third parties including teachers, counsellors, medical professionals and third party caregivers. (c) Related Orders and Recommendations [123] As part of my May 21, 2003 order granting sole custody of K.D.R.H. to Ms. L.R.H., I ordered that Ms. L.R.H. not make any negative comments about Mr. A.K.H. in the presence of or within hearing of K.D.R.H. and that she take reasonable steps to ensure that her extended family members also refrain from such conduct. I make the same order in relation to S.L.H. and C.E.H.. [124] I further order that neither party is to discuss this case or these Reasons with any of the H. children

or N.P., K.L.H. or T.H., other than to explain to K.D.R.H., C.E.H. and S.L.H., in the most general way, what the Court has specified in terms of where they will be living and generally when they will visit Mr. A.K.H.. I would be extremely concerned to learn of any breach of these terms. [125] Mr. A.K.H. has indicated that he is willing to take certain counselling although he has not done so as yet. I am not prepared to make his access to the children contingent on his attending counselling. However, I emphasize that I strongly recommend to Mr. A.K.H. that he enrol in a comprehensive course to assist him to enhance his parenting skills generally and his empathy skills with his children specifically. I am hopeful that Mr. A.K.H. will follow this recommendation at his first reasonable opportunity. I make the same recommendation with respect to Ms. L.R.H. taking steps to obtain counselling aimed at enhancing her general parenting skills. It is also my strong recommendation that Ms. L.R.H. take all reasonable steps to ensure that K.D.R.H. continues to receive any necessary counselling with an appropriate professional. I expect Mr. A.K.H. to cooperate fully. (d) Child Support [126] As mentioned, Mr. A.K.H. filed for bankruptcy in 2000. His 2002 income was $18,186.00. He presently works with a new real estate agency which he joined in mid-September 2002. Throughout his evidence, Mr.

A.K.H. repeatedly stated that his 2003 income would be about $40,000.00. Mr. A.K.H. has certainly not earned that level of income in the past, and he was not able to demonstrate that as at May 2003 he was on track to earn $40,000 for the 2003 calendar year. For the purposes of the child support guidelines, I think it fair and realistic to impute a slightly lower annual income in the amount of $35,000. I find that Ms. L.R.H.'s income is $1,700 per month which I compute to be $20,400 annually. The guidelines monthly amount of child support for three children based on Mr. A.K.H.'s imputed income is $665. Accordingly, I order that Mr. A.K.H. pay to Ms. L.R.H. as support for the three H. children the sum of $665. The first payment is to be made on August 8, 2003 and thereafter on the first day of each and every subsequent month for so long as the children are children of the marriage as defined by the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). As well, Mr. A.K.H. is to provide a copy of his personal income tax return to Ms. L.R.H. on or before May 30 of each year. Additionally, he is to provide her with a copy of his tax Notice of Assessment (and any Reassessment) within fourteen days of receipt. [127] By a separate Court Order made March 30, 2000, Mr. A.K.H. was ordered to pay child support in the amount of $250 on or before April 15, 2000. At trial, Mr. A.K.H. suggested that he

discharged that obligation, at least in part, by paying off a speeding ticket or two, but admitted they were likely his tickets. Mrs. L.R.H. testified that he had paid about $150 - $175 of the court-ordered figure. I find that Mr. A.K.H. did not fully comply with this Court Order. He is therefore ordered to comply by paying Ms. L.R.H. the sum of $75 on or before August 8, 2003. (e) Spousal Support [128] Ms. L.R.H. seeks payment of spousal support. There are no family assets to speak of. As mentioned previously, Ms. L.R.H. had been employed with the Sheriff's office in Alberta prior to K.D.R.H.'s birth. After that time, she remained at home with the children as much as she could. Mr. A.K.H. pursued a number of business endeavours and eventually launched into his career as a real estate agent which he enjoys today. [129] Ms. L.R.H. maintains that she was primarily responsible for raising the children. That is disputed by Mr. A.K.H. who says that he was at least an equal caregiver and, in fact, home schooled the children for a prolonged period of time. But Mr. A.K.H. also says that he worked all of the time, sometimes literally worked 24 hours a day and was never unemployed. In my view, the evidence supports the fact that Ms. L.R.H. invested greater time and involvement in raising the children than did Mr. A.K.H.. I find that was especially true after the parties separated. As Mr.

J.D. testified, while Ms. L.R.H. was at work the children telephoned her frequently and often played in the church gym or stayed in the office with her while she worked. He said it seemed like she was a single parent. [130] At the end of the marriage, Ms. L.R.H. was left with a number of bills pertaining to Mr. A.K.H.'s various businesses including telephone bills for different lines, placed and used by Mr. A.K.H.. The exact amounts were not clear. There were also outstanding car insurance fees for the automobile used primarily by Mr. A.K.H. for his work. Ms. L.R.H. is currently employed on a part-time basis. Her income is modest and her standard of living is less than ideal. Mr. A.K.H., on the other hand, says the standard of living he and Ms. G.P. enjoy has become very comfortable. [131] Mr. A.K.H. takes the view that he contributed to Ms. L.R.H.'s support by allowing her to retain the government baby bonus cheques which amounted to about $18,000. Evidently these funds could have been paid to Ms. L.R.H. in the past but had not been because Mr. A.K.H. had failed to file his income tax returns. She was only able to obtain the funds in a lump sum payment after separation. The funds were used mainly to pay the children's tuition arrears and their current tuition fees. I think it accurate to characterize the past baby bonus cheques as belonging to the children or family unit,

rather than to Ms. L.R.H. in discharge of any spousal support obligation. [132] In considering this case in the context of the factors and objectives relevant to the issue of spousal support as set out in the Divorce Act and case authorities, I conclude that Ms. L.R.H. is entitled to spousal support in the amount of $75, reviewable in three years. The payment of spousal support is to commence on August 8, 2003 and is payable on the first of every month thereafter. [133] Counsel for the plaintiff is at liberty to provide written submissions on costs within 45 days. She is to provide a copy of her submissions to Mr. A.K.H. and, if he chooses to do so, he is then at liberty to make written submissions within 30 days of receipt of counsel's submissions. In the event that I do not receive any written submissions about costs as outlined above, then each party shall bear their own. "S.K. Ballance, J." The Honourable Madam Justice S.K. Ballance