R.L.T. v. S.R.T.

2012 BCSC 1833 R.L.T. v. S.R.T. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R.L.T. v. S.R.T., 2012 BCSC 1833 Date: 20121206 Docket: E006319 Registry: New Westminster Between: R.L.T. a.k.a. R.L.C. Claimant And S.R.T. Respondent Before: The Honourable Mr. Justice N. Brown Reasons for Judgment Counsel for Claimant: P. Yaremovich Counsel for Respondent: T. Watkins Place and Date of Hearing: New Westminster, B.C. November 13, 2012 Place and Date of Judgment: New Westminster, B.C. December 6, 2012 Overview [1] The respondent asks the Court to grant him sole custody and guardianship of the parties' twins, R.E.T. and R.A.T., who will turn sixteen on January 18, 2013. The respondent's application is but the latest over the previous ten years of a rather lengthy train of court orders and child-protection interventions by the Ministry of Child and Family Development ("MCFD"). Counsel explained the parties' history of marital conflict over custody of the children has been so intense and complex that it has attained a certain level of notoriety in the Provincial Court of British Columbia, within the MCFD, and within local police departments, as well as in this Court. The MCFD has refused further engagement in this case. And, more recently, the police have refused to respond to the claimant's calls. [2] Most of the time the parties have spent in Provincial Court has been consumed by the MCFD's applications to protect the children from effects of the parties' marital conflict. [3] The Provincial Court's last involvement was in June 2008. Over eleven days, Judge Antifaev heard evidence on the MCFD's application to extend an earlier Provincial Court order that had required supervision of the claimant's access visits with the children. [4] On March 7, 2008, about three months before Judge Antifaev's June 2008 hearing, Justice Crawford granted the respondent interim custody, an order that of course was still effective when the parties appeared before Judge Antifaev. [5] After an eleven day hearing, Judge Antifaev refused to extend the MCFD's supervision order. On the other hand, she also rejected the claimant's application for specified access. In her reasons, Judge Antifaev commented on what she referred to as the claimant's custody campaign against the father and the way the claimant had been enlisting the children in it. At para. 144 she stated: 144. The legislation allows the court to make such an extension order if satisfied the circumstances that caused the child's need for protection are likely to improve within a reasonable time. I am satisfied that those circumstances are unlikely ever to improve. Indeed, the mother admitted that she felt she would always be involved in some sort of litigation or case with the father until the children were grown. [6] Judge Antifaev commented she regretted that her reading of the statute compelled her to refuse the MCFD any extension of the supervision order. The statute allowed her to extend the order, but only if it would improve matters. She explained: 145 I regret this decision because it is clear that the ministry will almost inevitably remove the children sooner or later, starting another round of court battles uncertainty. This is particularly sad because the father, for all his defects as a parent, has been making genuine efforts to be a good father and having quite a lot of success, even if he is not perfect. 146 in her campaign to have the children return to her, the mother may have destroyed the children's best hope to be raised by their own family members. Her inability to lose the histrionics and high conflict in this relationship may have damaged her children very dearly. [7] Earlier in her reasons, Judge Antifaev also noted: 129 Although the father's willingness to call in unfounded or exaggerated complaints about the mother has mostly ended, the mother continues to do this regularly and worse, she has now managed to draw the children into the conflict so that now they are fabricating complaints about their father and lying to the authorities for the purpose of getting their father into trouble. 130 This new development is extremely destructive for the children because it not only drives a wedge between them and their father loves him very much, it is carried out in such a way that they feel free to lie in order to manipulate the authorities such as police and social workers were there for the purpose of protecting them. 131 All of this is done not for the children's benefit is (sic) the mother believes, but for her own purpose which seems to be to win a war with ministry and the father in which the children are the prize. [8] In the hearing before me, I also saw examples of what could be characterized as the claimant's histrionic behavior. The claimant sometimes could not control her emotions and left the courtroom twice. Her inability to modulate her behaviour in a controlled setting such as a courtroom does not reflect well on her ability to do so in an uncontrolled one. Justice McKinnon's November 15, 2011 order [9] The last Order handed given in this Court was on November 15, 2011, after a hearing on September 26, 2011. Preceding this hearing, the children had remained in the respondents' custody throughout 2008, 2009 and most of 2010. Judge Antifaev had refused to make any access order; but neither had she made any order denying the claimant access. The claimant states, however, that the respondent refused her access to the children. [10] The respondent says the children's behavior has improved significantly and they are performing better in school. In October 2010, however, the claimant contacted the children by Facebook. She began texting them and arranged to meet the children somewhere in November 2010. The father contacted the police. The police told him they could not help him because no order prohibited the claimant from contacting the children. The claimant then moved to Chilliwack. She persuaded the girls to live there with her, which they did, in December, 2010. Given the children's ages, the Ministry refused to apprehend them. [11] Soon, the claimant brought on her application before Justice McKinnon. The respondent said he could not afford counsel. He filed what he calls a cursory affidavit that attempted a response to the claimant's lengthy 45-page affidavit. [12] At para. 5 of his reasons, Justice McKinnon said: What I am trying to do here is to make a determination that is going to be in the best interests of the girls. I do not think there is any issue that [R.A.T.]. has always been in the custody, or mostly in the custody, of her mother and has no interest in even having any association with her father; maybe that will change over the years, but at present that is the situation with her. [R.E.T.] has been back and forth [note: two minor editing errors corrected in quote] [13] The respondent says he failed to communicate properly to Justice McKinnon at the hearing that R.E.T. was not living then with her mother but with him. He says R.E.T.had moved in with him on June 6, 2011, after the claimant allegedly had R.E.T. "kicked out" of her home following an argument with her mother. The claimant submitted Justice McKinnon was aware of that, but I see no sign of that in his brief oral reasons. [14] The respondent deposes in his February 14, 2012, affidavit: 10. Sometime before 15 November 2011, while the claimant's custody applications [was still] before the court, she moved from Pitt Meadows to Chilliwack. [R.A.T.] went with her and enrolled in high school in Chilliwack. However, [R.E.T. remained] with me and continued attending Pitt Meadows secondary school. [minor grammatical errors corrected] Material change of circumstances [15] Instead of appealing Justice McKinnon's order, the respondent explains, he declined to sign it when presented for signature. The claimant then obtained an order dispensing with his signature. In the end, the respondent says, the custody order clashed with reality. [16] The respondent also refers to three police incidents that had occurred in 2011, preceding the hearings before Justice McKinnon. It appears Justice McKinnon did not hear about these incidents. [17] At para. 12 of his affidavit, the respondent begins his description of three police-related incidents, occurring on: January 3, 2011; September 11, 2011; and September 22, 2011. [18] On January 3, 2011, the claimant and R.E.T. were arrested for assault on a police officer who had attended at the claimant's residence to break up a party. On September 11, 2011, R.E.T. and the claimant were involved in an altercation at the pool of the apartment complex where R.E.T.'s boyfriend lived. On September 22, 2011, the police attended the claimant's residence to intervene in an altercation between R.E.T. and the claimant. R.E.T. had attended to retrieve her belongings. [19] The respondent says charges were laid against R.E.T. under the Youth Criminal Justice Act, S.C. 2002, c.1 for her involvement in the September 11, 2011, altercation. He has retained counsel for her and that matter remains for disposition. [20] The respondent concedes he should have brought all this to Justice McKinnon's attention so it could be considered. That aside, he points to even more weighty material changes in the circumstances that have occurred since Justice McKinnon's November 15, 2011, ruling. At paras. 16 - 20 of his affidavit, the respondent deposes: 16. Most importantly, on 15 January 2012, [R.A.T.] moved back in with me. Since then, both of children have been exclusively resident with me. 17. [R.A.T.] expressed to me reasons for her desire to move back which seem to me rational and sufficient. She complained of the claimant being verbally and physically abusive, especially when drinking, of denigrating me, and of not providing a clean and comfortable environment. 18 Unfortunately, [R.A.T.] could not reenroll in Pitt Meadows Secondary, where she went to school last year and were her sister still goes. The school principal has explained to me that he has been advised there is an outstanding custody order in favor of the claimant, and the claimant will not "de-register" [R.A.T.] from the school in Chilliwack. Accordingly, she is not able to go to school. Her former Chilliwack teachers are emailing her homework and she has maintained good grades, but she is missing out on many of the benefits of normal schooling, including personal instruction, school sports and socialization. 20. Both girls tell me that they are at this point opposed to having any further contact with her mother. In speaking with counsel, it was suggested to me that a lawyer could be appointed to represent the girls directly, given that they are now 15, and I would be prepared to pay for this. Alternatively, I would happily cooperate in having a "Views of the Child" report prepared. However, I believe the girls have made her wishes eminently clear through their actions. [21] Without delving into the details of the history of court appearances and MCFD's involvement, which has extended over a decade, the respondent's February 14, 2012, affidavit adequately summarizes the key court events. Summary of court orders in Supreme Court [22] Ministry intervention began when the children were 2 years old and continued until 2008. [23] On October 25, 2011, when the children were age 4, Justice Slade made an order granting the claimant custody, both parties joint guardianship and the respondent reasonable access. [24] On September 1, 2004, when the girls were 7, Justice Ross granted the parties shared custody and guardianship. Three days later, however, the children were placed in foster care, by consent. [25] On December 7, 2006, when the girls were 9, Justice Antifaev made what was characterized as a "last chance" order that returned the girls to the mother's care, subject to her residing with her own parents and supervision by the director. [26] On July 12, 2007, when the girls were 10, Judge Antifaev ordered, by consent, that the girls reside with the respondent, again subject to continuing supervision by the director. The children then remained in the respondent's care until Justice McKinnon's order. Views of child report [27] The respondent arranged a "Views of the Child" report, prepared by B. Finlay on May 15, 2012. [28] R.E.T. told Mr. Finlay she had lived with her mother from January 2011 to June 2011, and then had returned to live with her father. Before living with her mother, she had lived with her father for four years. [29] R.A.T. told Mr. Finlay she had lived with her mother from December 2010 to January 2011, but adds that during that time she had moved four times back and forth between her parent's homes until January 2011. Since then, she has lived with her father. Mr. Finlay summarized his impressions: The children's views in my opinion were honest and forthright and credible. There is no evidence of any coaching by either of the parents or siblings in their lives. [The children] report that it has been disruptive to move frequently back and forth between their parents homes. [R.E.T.] reports feeling secure in her decision to reside with her father and she wants to continue that arrangement. She appears to accept that for now she and her mother can have occasional contact. [R.E.T.] appears open to the possibility of more contact with her mother in the future, however she does not want to move and have her current life disrupted. Unlike [R.E.T.], [R.A.T.] appears to feel strongly conflicted in her relationship with her mother. She cares about her mother and yet describes time with her mother as unstable and somewhat chaotic. She describes feeling fearful of her mother's reaction if she is honest about her feelings, based on some previous experiences. [R.E.T.] describes feeling secure and stable in her father's home. She reports that she wants to continue to reside with him and her sister. [original quote uses, B. for R.E.T. and R for R.A.T..] Discussion & findings [30] There is no question a material change of circumstances has occurred. The children's residence is with the father and so it should remain until any further material change of circumstances occurs and a court makes further order. [31] Whatever his faults as a parent, I find the respondent provides a home the children find secure and stable, one conducive to their healthy growth and development. I note that except for the interval between January 2011 and January 2012, both children in more recent years have been living chiefly with the father. They have clearly expressed a preference to live with him that I find is genuine, reasonable, and deserves much weight. [32] In short, a review of the litigation history shows the parties have amassed an arsenal of charges to use against each other. Some of them could be true, some doubtless are not. In either case, the parties can draw on them whenever they wish to wholly discredit the other. The claimant, for example, refers to a long history of domestic violence, which she alleges still continues, in various guises. Most significant, the claimant alleges the respondent attempted to run her down with his vehicle. The police refused to look into her call, however, as they have done with others. [33] The respondent complains, as well, that the father took advantage of her serious illness in 2006 - 2007 when she agreed he should care for them as she recuperated from cancer. She says he kept the children from her after she had agreed he could care for them during her illness. I note, however, that the director of MCFD insisted on supervising access visits, a position that persisted until June 2008, when Judge Antifaev dealt with the matter, as noted earlier here. [34] The chamber's brief is lengthy. Its perused contents and the claimant's submissions convey an impression the claimant is more interested in re-exhibiting the respondent's alleged misdeeds than she is in showing why the children would be better off living with her. An illustration of her seeming inability to see the children's best interests shows in her having refused to sign documents the Pitt Meadow's school district needs so R.A.T. can attend school there. Because of the existing court order granting the claimant custody, the district required such authorization. [35] As it is, the parties' past grievances against each other are hardly relevant now. Given the parties' history, the only relevant consideration now is the best interests of the children, which I find lies in granting the respondent most of the orders he seeks. Access [36] As for access, I specify none. There appears to be strong enough remnants remaining of the children's connections with their mother to see the maternal relationship mended. But to see that happen, the mother will have to alter her behaviour. [37] The claimant complained about how difficult it is for her to have parenting time with the children, living as she does in Chilliwack and them in Pitt Meadows. That is not an insurmountable obstacle. Further, I am not aware of anything preventing the claimant from moving to Pitt Meadows. As matters stand, however, the children have cell phones they can use to contact their mother. They will decide if and when they wish to spend time with her. The respondent shall not impede access visits. The claimant shall ensure the children return to the respondent's residence after her visits with them. [38] At Christmas, 2013, the girls shall decide which days of the Christmas holiday they wish to spend with their father and which days with their mother in consultation with their parents. However, the mother shall have, at minimum, access on Christmas Eve, or on Christmas day, according to the girl's wishes. [39] The mother shall have summer holiday access with the children for at least one week, with the children arranging the time with their mother in consultation with their father. Custody and guardianship [40] Otherwise, the father shall have sole custody and guardianship. The usual guardianship provisions regarding survivorship apply. As part of his duty as guardian, the father shall notify the mother of any significant matters adversely affecting the physical and mental well-being of the girls and their performances at school. The claimant is entitled to request school transcripts and information regarding the girls' activities directly from teachers, but she shall not interfere with decisions the respondent makes regarding the girls' courses and activities. [41] The claimant may speak to the girl's medical caregivers regarding any significant medical condition. [42] The claimant shall not exercise access immediately after the end of a school day school without first notifying the claimant. Imputed incomes and arrears [43] As for child support, I impute income of $40,000 to the respondent and $28,000 to the claimant. [44] The respondent applies for cancellation of arrears he has accrued since December 1, 2010. The cancellation application is based on the amounts he owes based on accruals since December 1, 2010. He submits these should be reduced to account for the period when custody was split between the parties: see s. 8 of the Federal Child Support Guidelines, SOR/97-175 ["Guidelines"]. He seeks a further reduction to account for child support he says the claimant should have paid him since January 2012, when both of the children have lived with him. [45] Between December 1, 2010 and September 30, 2011, both children resided with the claimant. Based on imputed income of $40,000 in monthly child support of $610, the respondent owes the claimant 10 months of arrears: $6,100. [46] Between October 1, 2011 and January 31, 2012, one child lived with the claimant and one child with the respondent. Pursuant to s. 8 of the Guidelines, I find the set-off is $109 monthly. For four months, the difference is $436, which the respondent owes the claimant. [47] The respondent therefore is in arrears $6,536. [48] Between February 1, 2012 and November 20, 2012, the claimant presumably owes the respondent, based on imputed monthly income of $28,000, for child support of ten months, i.e. $4,630. The set-off amount between the two is $1,960, which the respondent owes the claimant. [49] The respondent owes the claimant total arrears of child support of $1,960. [50] The claimant shall pay $432 monthly to the respondent for child support. [51] The claimant's obligation to pay this amount is deferred to April 1, 2013. [52] Given this deferral, I cancel the respondent's arrears of child support. [53] And, commencing April 1, 2013, if the claimant still resides in Chilliwack, her child support obligation shall be reduced to $390 monthly from $432 monthly to reflect the financial burden of exercising access. [54] I make no order for sharing of s. 7 expenses. [55] A restraining order is ordered against both parties containing the usual non-interference terms and specifically providing that neither party go any closer than 100 meters of either party's residence. [56] The parties may communicate with one another, however, either by traditional correspondence or by email, on matters of significance regarding the girls' health and well-being. The parties may communicate by telephone in case of emergency. [57] As for costs, in my view, the claimant should not have opposed the core relief sought in this application. But considering the history of the litigation and the need to consider the parities' means and circumstances, each party shall bear their own costs. "N. Brown J."