V.M.S. v. S.R.M.S.

2016 BCSC 859 V.M.S. v. S.R.M.S. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: V.M.S. v. S.R.M.S., 2016 BCSC 859 Date: 20160504 Docket: E151761 Registry: Vancouver Between: V.M.S. Claimant And S.R.M.S. Respondent Before: Master Muir Oral Ruling In Chambers Counsel for the Claimant: S.G. Label Counsel for the Respondent: L.A.L. Chantler Place and Date of Trial/Hearing: Vancouver, B.C. April 29, 2016 Place and Date of Judgment: Vancouver, B.C. May 4, 2016 [1] THE COURT: These are my reasons. These are cross-applications regarding the children of the marriage. [2] The claimant's original application filed March 10, 2016 sought an order that the children reside primarily with her and that she have all parental responsibilities pursuant to s. 41 of the Family Law Act, S.B.C. 2011, c. 25. The respondent was to have reasonable access as agreed. [3] The claimant's amended application filed April 21, 2016 seeks an order that the respondent's access to the children be supervised. [4] The respondent's application seeks shared parenting and shared parental responsibilities. Paragraphs 1 to 11 and 17 to 22 of the respondent's application are adjourned generally. With respect to paragraph 27 of the respondent's notice of application, the parties have agreed to a consent order that a s. 211 report will be prepared by Dr. Marilyn Beloff. background [5] The parties commenced cohabitation in 1999 and were married on August 31, 2002. They separated on or about January 17, 2015, but continued to reside in the family home until May 1, 2016, when the respondent moved to new premises. These premises are in close proximity to the matrimonial home which has been sold, but the claimant has rented the matrimonial home back for one year. evidence [6] As in many family applications, the evidence before me paints very different pictures of the parties. The respondent complains of the claimant's erratic and volatile behaviour. The claimant seeks an order that the respondent's access to the children be supervised as she says he is a belligerent and controlling individual, that he has outbursts of out-of-control anger, and that he is verbally and emotionally abusive to her and the children. She also alleges that he is a binge drinker. [7] The claimant is an occupational therapist employed by Fraser Health, working Monday to Friday 8:30 a.m. to 4:30 p.m. The claimant deposes to many incidents involving the respondent drinking to excess and being verbally abusive. The respondent is a big man, some 6 foot 7 inches tall. I have no doubt he can be intimidating. [8] In addition to her own evidence, the claimant brings affidavits from her parents, her brother, a neighbour and a friend. These support her assertions that the respondent has a drinking problem and has been verbally abusive and intimidating not just to the claimant, but also to the children. These affiants also attest to the ability of the claimant to care for the children and her devotion to them. [9] Perhaps the most troubling evidence about the respondent was out of a recording of April 7, 2016. The respondent was at home getting the parties' son ready for a baseball game. The boy had misplaced his protective cup. He phoned his mother, but she missed the call and it went to voice mail. Apparently, the boy did not hang up the phone, and much of what transpired in the next few minutes was recorded. [10] The respondent is clearly angry, and when the boy tells him that he left his protective cup on the roof of his mother's car, the respondent says: What the fuck would you do that for? And next time I am going to nail the fucking thing to your head. [11] He calls the boy an "idiot" and when the boy reacts with "I hate you", the respondent says "I hate you too", then calls him a "fucking little brat." There is more, but that is the tenor of the interaction. [12] The respondent denies that he is routinely abusive. He says he much regrets this incident, but that the stress in the circumstances of living with the claimant and all that entails has taken its toll on him, and he unfortunately took his frustration out on the boy. He says he believe his stress will dissipate when he moves to his new residence, but says he has returned to counselling sessions with Dr. Hammersmark, a therapist he saw I believe twice in 2015. Although Dr. Hammersmark does not believe that the respondent has an anger management problem, she has suggested he avail himself of an anger management course. [13] Dr. Hammersmark has also indicated she does not believe the respondent has an alcohol problem, but recommended that he undertake a formal assessment from an expert, George Passmore. Mr. Passmore concluded that the respondent's results were above the mark where it would be considered that someone was drinking hazardously, only because of the concerns expressed by the claimant. Mr. Passmore's conclusion was that the respondent was not suffering from a mid, moderate or severe substance abuse disorder. [14] The respondent admits that he has had occasions in the past when he has had too much to drink, but denies that he is a binge drinker or alcoholic. The respondent brings affidavits from four friends, his cousin, his aunt and the coach of the baseball team that one of the children plays on. These deponents attest to the fact that the respondent is a responsible, caring and involved father, that his children are devoted to him and he to them. Several attest to the fact that the respondent is not a habitual drinker. [15] The respondent also brings a letter from the claimant's mother written February 22, 2016, in which she attests to the respondent's positive relationship with the children and their love for him. She indicates that the claimant had cut off all contact with her and her husband since 2014, but the respondent had continued to ensure that they saw their grandchildren. It is somewhat curious as the claimant's mother is one of the affiants who, in a more recent affidavit provided for the claimant, deposes to the problems that the respondent allegedly has had with alcohol. [16] For this the respondent says that he has not drunk any alcohol since January 2016. The respondent voluntarily attended for a hair alcohol test on April 22, 2016. The results indicate the respondent has not consumed alcohol in the last three months. [17] The respondent is a wireless engineering technician with Telus. He brings the affidavit of his manager, Mr. Toelis, to whom the respondent has reported since 2010. [18] Mr. Toelis deposes that the respondent's performance reviews since 2010 have all exceeded the average and demonstrate the respondent's character, reliability, cooperative spirit and technical knowhow. He says the respondent is a reliable and capable employee. Further, his evidence is that the respondent has a very flexible work schedule, and although he is required to travel for work occasionally, if necessary, they can usually find someone to take his place. In addition, Telus has a program that allows the respondent to work from home if necessary. [19] I note that the claimant has continued to leave the children in the respondent's care even after the abusive outburst of April 7, 2016, and that it was only after that evidence was obtained that she decided it was necessary for the respondent's parenting time to be supervised. Of course, I understand that the claimant has likely been impacted by similar abusive confrontations with the respondent, and may not have felt there was any option in all of the circumstances. [20] There is really no detailed analysis of the law required here. The only consideration is the best interests of the children. In considering what is in the children's best interests, I am directed by s. 37 of the Family Law Act to consider all of their needs and circumstances, including the factors set out in s. 37(2). One of those considerations is, of course, the presence of family violence. Children are entitled to be protected from family violence. Psychological and emotional abuse, including intimidation, are quite properly considered to be family violence. [21] I have no doubt that the son was a victim of family violence when he was on the receiving end of the tirade directed at him on April 7, 2016. The respondent's behaviour was completely inappropriate, bullying and abusive. The respondent's reaction is completely out of proportion to a nine-year-old having misplaced something. Having heard the tape and the way the respondent used the abusive language that he did, I am convinced that this was not an isolated incident. It is clearly important that the children be protected from such behaviour. [22] I must balance that evidence and the evidence that convinces me that the respondent has had problems with overconsumption of alcohol in the past with the other needs and circumstances of the children. It seems clear that the respondent is also a devoted father, and that the children love him dearly. There is ample evidence of that relationship and of the ability of the respondent to care for the children. They are an important part of one another's lives. If the children can be protected from future family violence, in my view, the factors going to the children's best interests weigh heavily in favour of the respondent continuing to play a major role in their lives. [23] The respondent appears to understand that his abusive outbursts are wrong. He has taken steps to deal with his emotional stress and anger issues, and his counsel advises that he is willing to abide by any conditions that I am inclined to make in that regard. With that and with the steps he has taken with respect to his alcohol consumption, I consider that the children can be protected from future violence and should benefit from their father's love and care. [24] I am conscious that a s. 211 report will be prepared in the near future. As a result, this will be an interim order and there is leave to apply to vary these terms when the s. 211 report is received. [25] I have decided that the children's interests will be best served in the interim by a shared parenting regime. The parties will have the children on a week-on/week-off rotation. The respondent will commence his week with the children on Sunday, May 8 at 6 p.m. or as otherwise agreed. The parties will share parenting responsibilities for the children. If there is no consensus with respect to a decision, there is liberty to apply. [26] The orders sought regarding holidays and travel as set out in paragraphs 15 and 16 of the respondent's notice of application are granted. The party who does not have the children is entitled to liberal telephone access with the children during that week. [27] With respect to paragraphs 23 to 25 of the respondent's notice of application, those are allowed, and I will read them: [23] Neither party will enroll the children in extracurricular activities without the prior consent of the other party. [24] Both parties are at liberty to attend any of the children's extracurricular activities, which including baseball and soccer. [25] Both parties will keep the other parent apprised of all concerts, recitals, practices, tournaments and other special occasions related to the children's activities. [28] The parties are at liberty to vary the parenting time by agreement. Such agreement is to be documented in writing. Reasonable notice of proposed changes to the parenting schedule must be given other than in emergencies. [29] The parties will agree on some suitable means of communication regarding the children. The children are not to be used as that means. [30] As conditions of this order, the respondent is to continue to attend counselling with a certified professional on a weekly basis for at least six months. He is to a complete an anger management course before the end of July 2016. In addition, he is to undertake an additional hair alcohol test with a properly certified testing agency in July 2016, the results of which are to be provided to the claimant or her counsel. [31] Neither party is to consume alcohol or elicit substances while they have parenting time with the children. The respondent's proposed paragraph 26 of his notice of application is allowed. [32] Neither party is to speak negatively about the other party to the children or to allow others to speak negatively about the other party in the presence of the children. [33] Neither party is to discuss the action with the children or involve them in the litigation other than to advise them of the orders this court has made as that may be necessary. [34] Both parties are to complete the Parenting After Separation course forthwith if they have not already done so. [35] Thus, the relief sought in respondent's application is either allowed or adjourned, as I have described. [36] Paragraphs 1 to 4 of the claimant's application are, therefore, dismissed. Paragraphs 5 and 6 of the claimant's application are adjourned generally. [37] Given that the application has dealt entirely with the children's best interests, I am inclined to order that the parties bear their own costs, but I will hear you on costs if you wish to make submissions. [SUBMISSIONS ON COSTS] [38] THE COURT: In all of the circumstances, I am going to order that both parties bear their own costs. "Master Muir"