IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
A.A.A.M. v. Director of Adoption, |
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2017 BCSC 2077 |
Date: 20171116
Docket: E110602
Registry: Vancouver
Between:
A.A.A.M.
Claimant
And:
Director of Adoption and D.C.R.
Respondents
Before: The Honourable Madam Justice Choi
Reasons for Judgment
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The Claimant: |
Appearing on his own behalf |
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Counsel for the Respondent Director of Adoption: |
M.E. Mouat, Q.C. |
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Place and Date of Trial/Hearing: |
Vancouver, B.C. September 28-29, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. November 16, 2017 |
Table of Contents
Material Change in Circumstances
Statutory Framework and Legal Principles
New Evidence and O.’s Views and Responses
Should the Current Orders be Varied?
Statutory Framework and Legal Principles
Mr. M.’s Evidence and Applications
[1] The Director applies to suspend Mr. M.’s time with his daughter O., pending the trial of this matter.
[2] Mr. M. opposes the Director’s application.
[3] The trial is scheduled for ten days commencing on January 22, 2018, a date which is pre-emptory on Mr. M.
[4] Mr. M. currently has supervised in-person visits with O. in Alberta once every six weeks, as specified in an order dated October 1, 2014. Mr. M. also has Skype visits once every three weeks, unless there is an in-person visit within that time, as specified in an order dated April 10, 2017.
[5] Chief Justice Bauman set out the background of this matter in reasons indexed at 2017 BCCA 27 at paras. 2-6:
[2] This case concerns the guardianship of Mr. M’s daughter, who I will refer to as “O”, who is now seven years old. Mr. M is a citizen of Saudi Arabia who is living in Canada on a now-expired student visa. O was born on 8 December 2009. O’s birth mother denied Mr. M’s paternity and indicated on the birth registration form that the father was unknown. She then signed the necessary forms to facilitate O’s placement for adoption by the Director pursuant to the Adoption Act, R.S.B.C. 1996, c. 5. The Director thereby became O’s guardian.
[3] In January 2010, DNA testing established Mr. M’s parentage. On 7 May 2010, the Director advised Mr. M that O would be placed for prospective adoption with a couple in Alberta – the Ps – who were already guardians of O’s half-sister. Mr. M opposed the placement. On 13 September 2010, the Director gave care and custody of O to the Ps and she has lived with them since that time.
[4] Mr. M filed a notice of family claim seeking custody and guardianship of O pursuant to the now-repealed Family Relations Act, R.S.B.C. 1996, c. 128 (the “FRA”) on 25 February 2011. During a hiatus in the trial of that action the FRA was replaced by the FLA and the Adoption Act was amended to harmonize with the FLA. When the trial resumed the parties agreed that the case should be decided under the new provisions. At that point, Mr. M sought only to be recognized as a guardian under the FLA.
[5] The first trial resulted in an order of Justice H. Holmes dated 1 October 2014 dismissing Mr. M’s application for guardianship but granting 2.5 hours of supervised contact every six weeks and Skype visits once every three weeks (2014 BCSC 1847). On 19 May 2015, this Court allowed Mr. M’s appeal and declared him to be O’s co-guardian (reasons indexed at 2015 BCCA 220) subject to the condition that either the Director and Mr. M reach an agreement, or an order is pronounced by the Supreme Court of British Columbia, allocating and defining Mr. M’s rights and those of the Director in a manner consistent with O’s best interests. If the parties failed to reach an agreement within 30 days of the Court of Appeal’s order then the matter would be remitted to the Supreme Court for an order under s. 45 of the FLA (orders respecting parenting agreements). The court upheld the access order with liberty to Mr. M to seek an increase in contact with O.
[6] The parties could not come to an agreement on the appropriate parenting arrangements. The Director applied for directions under s. 45 of the FLA on 8 October 2015. Mr. M cross-applied for a report prepared pursuant to s. 211 of the FLA and an interim increase in parenting time. At the hearing of the applications, in chambers, Justice Butler ordered the s. 211 report and a trial of the issue of O’s parenting arrangements pursuant to Rule 10-3(7)(d) of the Supreme Court Family Rules, (“SCFR”). Subsequently, Justice Choi was appointed trial management judge and oversaw a number of judicial management conferences.
[6] I will now outline the recent procedural history of this matter, which is important because delay is a relevant issue in the present application.
[7] In March 2016, a nine-day trial to determine O.’s parenting arrangements was scheduled to commence on November 21, 2016.
[8] On October 12, 2016, Mr. M. sought various procedural applications as well as an interim order for increased time with O. on an unsupervised basis, as follows:
a) once every three weeks, on reasonable notice, for four hours within a reasonable proximity of [O.’s] home community;
b) by way of Skype once every week (unless there is or will be an in-person visit during that week) on reasonable notice; and
c) one weekend every other month, on reasonable notice, in Vancouver, British Columbia.
[9] The court dismissed the orders sought by Mr. M. in the October 2016 application, except for the order to increase Skype visits from once every three weeks to once every week.
[10] The November 2016 trial was adjourned pending Mr. M.’s appeals of the October applications. On November 25, 2016, Justice Fenlon declined to grant leave with respect to the dismissal of Mr. M.’s application for increased time with O. This part of her decision was confirmed by Chief Justice Bauman in reasons of January 13, 2017. The appeal on the pre-trial procedures was also dismissed by the Court of Appeal, and those reasons are indexed at 2017 BCCA 110, dated March 1, 2017.
[11] On February 28, 2017, the Director applied to suspend or reduce Skype visits, and on April 10, 2017, an order was made that Skype be reduced to once every three weeks, unless there is an in-person visit within that time. Those reasons are indexed at 2017 BCSC 592. In effect, the April 2017 order reverted to the order that had been in place since 2014 pursuant to the trial decision of Justice Holmes.
[12] In the April 2017 reasons, the court expressly stated at para. 39 that it expected counsel to forthwith schedule a new trial date, which would allow the court to make a decision about parenting arrangements on viva voce evidence.
[13] The Director initiated a judicial management conference, which took place on May 8, 2017, in order to schedule a new trial date. The trial was set for nine days commencing on August 8, 2017.
[14] On June 19, 2017, immediately prior to the commencement of the trial management conference, Mr. Shragge removed himself as counsel for Mr. M.
[15] At the same trial management conference, the court ordered that any application for an adjournment of the August 8 trial be heard on July 7, 2017, and that any supporting materials be filed and served on the Director by June 28, 2017.
[16] Mr. M. did not file or serve any materials by June 28, nor did he set an adjournment application for July 7, 2017.
[17] On July 28, 2017, Mr. M. retained counsel on a limited, unbundled retainer for the purpose of an adjournment application. His counsel sought short leave on August 1, 2017. The Director consented to the short leave, and the adjournment application was heard on August 3, 2017.
[18] The Director opposed Mr. M.’s adjournment application. In oral argument, counsel for the Director submitted that if an adjournment was granted, the court should suspend Mr. M.’s time with O. pending his retaining new counsel and scheduling a new trial date. The court determined that it was not appropriate to suspend parenting time in these circumstances for the reason sought by the Director.
[19] In granting an adjournment of the August 8, 2017 trial, the court made the following findings in reasons indexed at 2017 BCSC 1878 at para. 22:
1. The second trial has already been adjourned once at Mr. M.'s request, and he has continually sought to elongate the process since I was assigned the trial management judge.
2. Mr. M. knew by May 18, at the latest, that Mr. Shragge was no longer to be his lawyer. At that time, the August 8 trial date had been set. Mr. M. has had ample time to seek other counsel and prepare for the trial.
3. Mr. M. was ordered to bring an adjournment application on July 7, 2017. He did not do so.
[20] The Court directed that a judicial management conference be scheduled for a date in early September for the purpose of scheduling a new trial date. September 12, 2017 was chosen by counsel and this date would be pre-emptory on Mr. M.
[21] At the September 12, 2017 conference, Mr. M. resisted scheduling a new trial date. Ultimately, a trial was scheduled for ten days commencing on January 22, 2018. At that time, the Director served Mr. M. with the materials for this application.
[22] This application is brought pursuant to s. 47 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] which states:
47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person.
[23] In Williamson v. Williamson, 2016 BCCA 87 at paras. 30-31, the Court of Appeal held that s. 47 of the FLA should be interpreted to align with the common law test for “material change” from Gordon v. Goertz, [1996] 2 S.C.R. 27. At para. 33, the Court of Appeal cited a summary of what the applicant must establish under the test:
[13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.
[24] Once the threshold test for “material change” has been met, a judge can embark on a fresh inquiry into the best interests of the child to determine the parenting arrangements that best support those interests (Williamson at para. 34).
[25] Sections 216(3)-(4) of the FLA provide further guidance on the test for varying or suspending an interim parenting order.
216 (3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists:
(a) a change in circumstances has occurred since the interim order was made;
(b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
(4) In making an order under subsection (3), the court must take into account all of the following:
(a) the change in circumstances or the evidence, or both, referred to in subsection (3);
(b) the length of time that has passed since the interim order was made;
(c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement
(i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and
(ii) would not necessarily reflect the final arrangement between the parties;
(d) whether a trial has been scheduled;
(e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3).
[Emphasis added.]
[26] In order for a change in circumstances or new evidence to meet the threshold test for varying or suspending the orders allocating Mr. M.’s parenting time, it must be material and must relate to O.’s best interests.
[27] The Director argues that this Court should consider the material change since 2014 when an order for contact was made after the original trial before Justice Holmes. She argues that the current order for Mr. M.’s time with O. flows from the 2014 order.
[28] The Director submits there is a material change in circumstances as follows: (1) O.’s age and views; (2) O.’s response to time spent with Mr. M.; and (3) delay in the determination of Mr. M.’s parenting responsibilities.
[29] The Director’s argument relies on the assumption that no analysis has taken place since 2014, respecting time between O. and Mr. M. In my view, this argument ignores Mr. M.’s application in October 2016 for increased unsupervised in-person visits, which was dismissed, and the Director’s application in February 2017 to suspend or reduce Skype, as a result of which Skype was reduced.
[30] In support of his October 2016 application, Mr. M. relied on his affidavit #5 sworn on November 2, 2015.
[31] In opposing, the Director largely argued that it was more appropriate to address parenting time at the trial which was, at that time, to commence the following month. Mr. Colby’s s. 211 report of April 26, 2016 was relied on by both parties.
[32] In support of the Director’s February 2017 application to suspend or reduce Skype, Ms. Mouat argued that O.’s views were captured in Julie Loranne Hibbs-Pinney’s reports, which were attached to the affidavit of Renaa Bacy, the Provincial Director of Adoption. Ms. Hibbs-Pinney is the social worker in Alberta who supervises O.’s placement with the P. family and attends Mr. M.’s parenting time with O. On the basis of the Director’s concerns over O.’s reaction and Ms. Hibbs-Pinney’s reports, the court reduced weekly Skype.
[33] While some of the evidence tendered by the Director in the present application was before the court in these previous applications, much more evidence was presented by Mr. M. in this application. His own affidavit evidence for the October 2016 application was extremely limited, and he swore no affidavit to support the February 2017 application. During the hearing of the present application, Mr. M. provided viva voce evidence because he had not filed an application response or any affidavits.
[34] The Director has also provided new evidence of O.’s views and reactions to time spent with Mr. M. There are ten new reports from Ms. Hibbs-Pinney, contained directly in her own affidavit, and additional evidence of Ms. Hibbs-Pinney’s observations generally.
[35] The Director submits that O.’s negative reactions to Mr. M. are more dramatic in recent months. Ms. Hibbs-Pinney’s reports indicate that O. is displaying more insistent and, at times, hostile behaviour to indicate that she does not want to interact with Mr. M. She refused to leave her room and participate in the Skype visit scheduled for July 13, 2017. On this occasion, O.’s behaviour to Ms. Hibbs-Penney was also markedly distant and different than usual.
[36] The Director submits that there has been delay in the determination of Mr. M.’s parenting responsibilities.
[37] When reasons were issued for the October 2016 application, a trial of this matter was set to commence in three weeks. Likewise, the reasons for the February 2017 application expressly contemplate that the parties would schedule a trial forthwith.
[38] In February 2017, the delay in determining Mr. M.’s parenting responsibilities could be largely attributed to Mr. M.’s appeals, which related to the scope of the trial.
[39] By the May 8, 2017 judicial management conference, Mr. M.’s appeals had been dismissed. Mr. Shragge, counsel for Mr. M., was reluctant to schedule a new trial date. Mr. Shragge submitted:
We now have a situation where there is a multiplicity of proceedings in two separate provinces. …
My client is not in a position to be fighting two…two separate cases that, although perhaps not co-extensive, overlap in a very significant manner. …
… moreover, my client is the claimant here. He is the one that is seeking the change in the status quo …
It is not appropriate, in my respectful submission, to effectively force the claimant into prosecuting a proceeding that he is not in a position to prosecute right now.
[40] Ultimately, the trial was scheduled at the conference to commence on August 8, 2017. We now know that ten days later, on May 18, Mr. Shragge advised Ms. Mouat that Mr. M. elected to represent himself or proceed with alternative counsel.
[41] Mr. Shragge withdrew as Mr. M.’s counsel on June 19 at the commencement of the trial management conference. During the remainder of the conference, Mr. M. represented himself. He submitted:
Number one, we're not ready. We're not ready. We're not ready to go to trial. First of all, this month is a holy month. As you know, in Islamic culture, now it's -- they're on two weeks' vacation. Ms. Mouat, she knows that long time ago. The other thing to have a lawyer immediately I might have, but you think I'm going to be ready? My lawyer and the trial is in August. Number two, My Lady, today we are in June 17, 2017. Court of Appeal allowed my appeal and somewhat I would say quashes Judge Holmes' decision and they asked us to reach an agreement as to parenting time and parenting responsibility.
[42] As Mr. M. had not filed any application materials for an adjournment, he was ordered to bring such an application, if he wished, on July 7. He did not do so. Instead, an adjournment application was heard on Thursday, August 3, one full business day before the August 8 trial was to commence. The adjournment was granted on conditions, including that a trial date be scheduled at a conference to take place in early September.
[43] During most of the September 12, 2017 conference, Mr. M. avoided providing the court with trial dates. Only after he was repeatedly pressed for dates and warned that a trial would be scheduled without his input, Mr. M. indicated that he would not be prepared to go to trial until the summer of 2018:
About trial, as I suggested, My Lady, I check the schedule, Supreme Court schedule online. There is available in next summer. I will be available and I will be with a legal presenter.
[44] Ultimately, a ten-day trial was scheduled commencing January 22, 2018, a date Mr. M. agreed to and which is pre-emptory on Mr. M.
[45] I find that Mr. M. has continually delayed having this matter proceed to trial. The extent to which Mr. M. would attempt to delay the trial was not apparent when the February 2017 application was heard.
[46] In light of the adjournment of the trial for the second time, Mr. M.’s new evidence, and the Director’s new evidence of O.’s escalating responses to the current orders, I find a sufficient change in circumstances to reconsider the time Mr. M. spends with O.
[47] Section 37(1) of the FLA sets out the principle that only the best interests of the child should determine parenting arrangements, and s. 37(2) enumerates factors the court must consider when determining the child’s best interests.
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
[48] Section 37(3) reiterates the importance of a child’s safety:
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.
[49] The Director submits this Court should consider the views of the child under s. 37(2)(b) of the FLA and under international law - specifically the United Nations Convention on the Rights of the Child (“UNCRC”), to which Canada is a signatory.
[50] Article 12 of the UNCRC addresses the voice of the child in legal proceedings:
1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[51] The Director relies on a decision of Justice Martinson, sitting as a judge in the Yukon Supreme Court, which considered the application of the UNCRC to domestic law: B.J.G. v. D.L.G., 2010 YKSC 44. Justice Martinson stated at para. 13:
There is no ambiguity in the language used. The Convention is very clear: all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high conflict, including those dealing with domestic violence, parental alienation, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children’s participation.
[52] The Director submits that O.’s views - specifically that she does not want to see Mr. M. - should be given weight because of O.’s age and because this court has a significant amount of evidence of her views.
[53] I accept that the Director’s evidence constitutes O.’s views. Indeed, Mr. M. does not disagree that these are O.’s views. Based on the consistency of their expression, O.’s views should be given consideration proportionate to her age and maturity. I also find that evidence of O.’s views - specifically her words and behaviour - are relevant to assessing other important factors under s. 37(2), including her health and emotional well-being, and the nature and strength of the relationships between O. and the significant adults in her life.
[54] In support of the application, the Director relies on Mr. Colby’s s. 211 report, dated April 26, 2016; and on the affidavits of Roxanne Pereira, sworn October 19, 2015; Ms. Bacy, sworn February 10, 2017; and Ms. Hibbs-Pinney, sworn August 18, 2017.
[55] Ms. Pereira swore an affidavit in support of Mr. M.’s application for increased time before Justice Butler in November 2015.
[56] Ms. Pereira swears that she is a registered social worker in Alberta, and that she was asked by Mr. M. and his immigration lawyer to observe an in-person visit between O. and Mr. M. on August 4, 2015.
[57] Ms. Pereira described the interactions as follows:
5. [O.] rarely returned eye contact with [Mr. M.], and this changed little over the hour-long period. In addition, her body language towards [Mr. M.] was closed e.g., she had her back turned towards him and would not initiate proximity when they were in an open environment.
6. In contrast, [O.’s] body language with her foster parents was engaged (e.g., there was consistent eye contact), warm (e.g. she held hands with [Mr. P.] and ran to [Mrs. P.] and hugged her when she arrived), and animated (e.g., she smiled and ran when she saw [Mrs. P.]).”
[58] Based on her observations, Ms. Pereira characterized the relationship between O. and Mr. M. as “weak.”
[59] The Director submits that Ms. Pereira’s observations are consistent with those of Mr. Colby in the s. 211 report. At page 33 of the report, Mr. Colby notes:
[O.] moved around the room to be out of [Mr. M.’s] direct line of vision, requiring that he turn around if he was going to have communication with her. He then moved closer to her and she moved away from him saying, “Stop following me.” [Mr. M.] said he was not doing that and told her that he loves her. [O.] did not respond, continuing to hold onto her doll.
[60] At page 32, Mr. Colby describes an interaction as follows:
[Mr. M.] continued watching [O.] work. [O.] would turn to [Mr. M.] periodically to tell him not to look at her. [Mr. M.] asked [O.] what her favourite song was. She responded with that she does not know. [Mr. M.] stated that he knows she has a beautiful voice, to which [O.] said, “No, I don’t.”, adding that she does not want to sing.
[Mr. M.] then began singing, “Twinkle, twinkle, little star” to [O.] and then she told him to stop. She said it repeatedly as he continued to sing.
[61] At page 51, Mr. Colby makes a number of recommendations. The first is as follows:
At this time, this Assessor cannot present a positive evaluation of [Mr. M.’s] ability to engage in parenting time with [O.]. Therefore, recommendations cannot be presented in regards to parenting time. The interactive relationship and skill level of [Mr. M.’s] involvement requires major professional intervention in order to reach a level where such engagement would be productive and positive for [O.].
[62] Ms. Bacy’s affidavit attached ten weekly reports of Skype and in-person visits from November 8, 2016, to January 26, 2017, written by Ms. Hibbs-Pinney. Ms. Hibbs-Pinney began writing the reports after the October 31, 2016 order, which increased Skype visits to once per week.
[63] The Director also relies on a new affidavit of Ms. Hibbs-Pinney, which includes the ten reports attached to Ms. Bacy’s affidavit and continues with ten additional reports of visits until July 13, 2017.
[64] Ms. Hibbs-Pinney has been supervising the visits between O. and Mr. M. since the summer of 2014.
[65] She deposes the following at paras. 13-16:
13. Over the last three years, [O.’s] reaction to the claimant has remained relatively consistent, though her negative responses to his attention have become much more emphatic in the past year.
14. At in person visits, [O.] rarely speaks directly to the claimant or acknowledges his presence. On the occasions where [O.] does speak to him she is rude, is arguing against something he has said or demanding that he stop doing something … [O.] also physically distances herself from the claimant … Outside of visits, I find [O.] to be a chatty, positive and polite child who is appropriately affectionate with others.
15. When Skype visits occur, I have observed instant physical changes in [O.’s] behavior. When the call rings, she will instantly stop talking or smiling. She physically moves away from the computer, her body compacts with her arms held close to her body and often her knees pulled up in front of her tummy …
16. The claimant continues to call [O.] “sweetheart” despite prompts, suggestions and advice that he not to do so as [O.] dislikes this endearment, reacts negatively to it, has told the claimant not to call her that; [O.’s] usual response is “I am not your sweetheart.”
[66] She deposes the following at paras. 33, 40-44:
33. As my report regarding the July 13, 2017 Skype visit lays out, [O.] adamantly refused to leave her room or to participate in even a short period of Skype contact with the claimant. [O.] stated she was never coming out of her room if she had to do Skype. [O.’s] behaviour on this day was highly unusual… She has always engaged in a very friendly way with me… [O.] refused to speak to me and physically tucked her body behind [Mrs. P.] when I attempted to talk to her.
…
40. I know that the claimant loves [O.]… Unfortunately the claimant struggles to read her cues, even when they are blatant and verbal, and does not seem to be able to understand the difference between things that make her happy and things that make her upset.
…
41. … The majority of the claimant’s time during visits is spent either watching [O.] or chatting with the other adults.
…
42. … [O.] is clearly aware that [Mr. M.] is her birth father… [O.] knows that being adopted means that you get to stay somewhere forever and recognizes that means she could actually be moved from her current home. She knows the claimant opposes her adoption and believes that he is trying to, in [O.]’s word, “steal”, her away from her family and her sister.
…
43. … [O.] believes that [Mr. M.] wants her to be unhappy, that he thinks she is a baby and that is always staring and laughing at her.
44. Over three years I have not had one incident of contact with [O.] where she has indicated that contact with the claimant has been positive for her. She continually reports feeling scared, mad, frustrated and confused.
[67] The Director submits the reports produced by Ms. Hibbs-Pinney are consistent with the observations of Ms. Pereira and Mr. Colby. The reports also provide evidence of recurring patterns in the interactions between Mr. M. and O., and of O.’s escalating responses. Mr. M. often brings gifts for O., which O. consistently and verbally rejects. On June 20, 2017, Ms. Hibbs-Pinney observed O. become upset when Mr. M. attempted to put gifts inside the family car:
[Mr. M.] opened the door where her seat was but she refused to get in she told [Mr. M.] “get away from the car.” [Mr. M.] did not respond or move. [O.] said again “get away from the car.” Her voice was very hostile and her fists were clenched again. [Mr. M.] did not move. This writer said “[O.] you can control your own self but you can’t control other people. If you’d like [Mr. M.] to move you could try ask him nicely. [O.] said “get over there away from my car.” [Mr. M.] moved, then [O.] got into her seat and close[d] the door.
[68] Ms. Hibbs-Pinney attached to her affidavit a drawing by O. done on July 11, 2017, which was provided to her by Mrs. P. The drawing shows three figures on the top of the page, above which are written “[the nickname of O.’s sister]”, “dad”, and “mom.” There is a figure on the bottom left of the page with a word bubble that contains the phrase, “I wont too cill her.” Another figure on the bottom right of the page says “No” with multiple explanation marks.
[69] The Director submits that this drawing represents O.’s views, that the figure on the bottom left represents Mr. M., and that this figure is saying “I want to kill her.” Counsel for the Director emphatically stated in oral argument that the Director does not believe O.’s fear is founded in reality. However, she submits that this drawing provides evidence of O.’s fears.
[70] Mr. M. agrees that O.’s drawing represents her views and that it is very disturbing. He argues, however, that the relevant issue is why O. holds such views:
My Lady, if you look at the last page, the -- the -- seven years old, My Lady -- seven years old, draw this -- kind of like this, violence draw. You want to tell me she is in good place or good home? Where is the Ministry? Where is the best interests for the child here? That mean somebody brainwash her about me and about her living or the style she living.
[71] It is clear that O.’s drawing is very shocking for both the Director and Mr. M.
[72] Based on all the evidence, the Director submits that the current orders cannot be said to protect, “to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being”, pursuant to s. 37(3) of the FLA.
[73] The Director submits that O. does not want to spend time with Mr. M. and that time with Mr. M. is causing her emotional distress.
[74] Further, the Director submits there is no evidence that parenting time is in O.’s best interests. Instead, the Director submits it is in O.’s best interests that time with Mr. M. be suspended.
[75] Mr. M. gave viva voce evidence for about two hours over two days. While he did not file a notice of application or any affidavit materials, he gave notice at the September 12, 2017 judicial management conference that he sought an increase in time with O. The Court will consider this application because notice was provided at the judicial management conference, the application flows from the Director’s application, and Mr. M. is a self-represented litigant.
[76] However, Mr. M. also re-argued submissions made by Mr. Shragge on February 28, 2017, asking the Court to order therapy and assessments due to alienation. As in February, there was no notice of application for this relief. I will not consider it as this relief is not ancillary or flowing from the Director’s current application. Mr. M. should file a notice of application with supporting affidavit evidence if he seeks these orders.
[77] Overall, Mr. M. does not dispute the Director’s evidence of O.’s reactions and behaviour during his time with her. He agrees that the visits are not going well and that O. is unhappy. However, he submits his behaviour is not at the root of O.’s unhappiness and that there must be another reason for her responses to him:
We have to find out why [O.] is scared, why she rejection, why she is mad at [Mr. M.], why she is ‑‑ she don't like [Mr. M.] as her father, why?
[78] Mr. M. alleges the P. family are alienating O. from him and considers alienation to be “emotional abuse.” He repeatedly testified that the P. family are emotionally abusing O. by not fostering her relationship with him:
No one told her to do what -- what she's supposed to do to speak with her father or her dad. Never told her -- they never told her firm -- the word -- the word firm, you know, with a child you have to be firm at certain time, and it depends the circumstances, also it depends how they communicate, whether with a family member or other children or in the public you must be firm. To let your child, this is appropriate, this is not appropriate. I never seen it, and Ms. Jules she never sees -- she has never seen it as well, and if it shows clearly, My Lady, my daughter she being emotionally abused.
[79] Mr. M. alleges bias and bad faith on the part of almost everyone involved.
[80] With respect to Ms. Hibbs-Pinney’s affidavit and reports, Mr. M. testified that while he sometimes found her to be fair, at other times he found that she exaggerated. In his view, Ms. Hibbs-Pinney is biased because she is paid to be a social worker. Nevertheless, Mr. M. agreed with the substance of her reports and observations, but wished to cross-examine her.
[81] The power to cross-examine on an affidavit is set out in R.10-3(4)(a) of the Supreme Court Family Rules. The test under the equivalent rule of the Supreme Court Civil Rules (R. 22-1(4)(a)) was affirmed in Eastside Pharmacy Ltd. v. British Columbia (Minister of Health), 2017 BCSC 370 at para. 79:
In Equustek Solutions Inc. v. Jack, 2013 BCSC 882, at para. 6 three principles are laid down to guide the exercise of the discretion namely; “first, whether there are material facts in issue; second, whether the cross-examination is relevant to an issue that may affect the outcome of [the] substantive application; and third, whether the cross-examination will serve a useful purpose in terms of eliciting evidence that would assist in determining the issue.” At para. 11 Fenlon J. (now J.A.) wrote that “an exercise of the discretion to order cross-examination on an affidavit is appropriate when it is more important to investigate the facts thoroughly than it is to achieve as primary goals efficiency and economy”.
[82] In his viva voce evidence, Mr. M. did not contradict any of the material facts deposed in Ms. Hibbs-Pinney’s affidavit or reports, but alleged bias. I do not find this to be a sufficient reason to order cross-examination in light of the evidence before me. Mr. M. does not dispute the thrust of the Director’s evidence, and O.’s behaviour is consistently described by all the affiants. I find that cross-examination is not necessary to determine the issue at hand on an interim basis.
[83] Mr. M. also gave evidence on the other material relied on by the Director. He explained that Ms. Pereira was hired in connection with his application for permanent residence on humanitarian and compassionate grounds on the basis of being O.’s guardian. He brought attention to parts of the affidavit that highlighted his parenting skills, including an observation that Mr. M. knelt down to say goodbye to O. in order to communicate with O. at her height.
[84] Similarly, Mr. M. relies on Mr. Colby’s observation that O. has rejected him and that this rejection may be due to alienation. He pointed to Mr. Colby’s report at page 52 indicating that: “While Mr. [M.] presents the intent of being able to provide for his daughter [O.], there is no evidence of his ability to do so.” Mr. M. did not dispute such an observation, but testified that the Director has failed to support him in obtaining better skills to interact and parent O. On his own initiative, he has undertaken to improve his skills by retaining Alyson Jones for the past year for family reunification counselling.
[85] Mr. M. has made significant efforts to maintain a relationship with O., including traveling to Alberta for supervised visits. He agrees with Mr. Colby’s observation at page 50 that he is highly motivated to provide parenting care.
[86] It is Mr. M.’s central belief that it is in O.’s best interests to have a relationship with him. He is her biological father. Once the legal proceedings are concluded, all participants, except for he and O., will have moved on.
[87] Mr. M. argued that if his time is suspended, his ability to demonstrate parenting responsibilities at trial will be hampered.
[88] I accept that O.’s views to time spent with Mr. M. are captured in the affidavits of Ms. Pereira and Ms. Hibbs-Pinney, as well as in Mr. Colby’s s. 211 report. All three are trained professionals who have previously interviewed and observed children. The affidavits and the s. 211 report consistently describe O.’s negative reactions to Mr. M., and none of O.’s reactions, as observed and reported, were disputed by Mr. M.
[89] The question for the Court is whether it is in O.’s best interests to suspend the visits, as sought by the Director, or to increase the visits, as sought by Mr. M.?
[90] I note that Mr. M’s conduct in the courtroom during this application was entirely different than at the conferences on June 19 and September 12, 2017 when he was rude, abusive and obstructive.
[91] For the reasons that follow, I find that it is in O.’s best interests to suspend parenting time with Mr. M. on an interim basis.
[92] Mr. M. submits that it is in O.’s best interests to maintain a relationship with her biological father and her cultural heritage. I agree these factors are important and relevant to O.’s best interests.
[93] Despite his concerted efforts to improve his parenting skills, Mr. M. has not demonstrated any capacity to address O.’s emotional needs at this time. He appears to lack insight into his own parenting abilities and an understanding of what behaviour is problematic for O.
[94] Based on the evidence before the Court, I accept the Director’s argument that the time with Mr. M. is causing O. emotional distress.
[95] O. has been living with uncertainty for many years now. The Court of Appeal’s decision of May 19, 2015, contemplated that an agreement or determination of parenting responsibilities would be take place in the near future. Two and a half years have passed since that decision. A full hearing to determine Mr. M.’s parenting responsibilities has been delayed by Mr. M.
[96] Mr. M.’s ability to demonstrate his parenting skills at trial can only form part of my decision in determining the current order for parenting time insofar as it impacts O.’s best interests.
[97] I agree with Mr. M. that it is appropriate to give some weight to O.’s long-term interest in fostering a relationship with her biological father. However, O.’s current psychological security and emotional well-being cannot be unduly compromised by this long-term interest.
[98] Given O.’s escalating behaviour and reactions to time spent with Mr. M., I find that her psychological security and emotional well-being must be given significant weight.
[99] Consequently, I grant the Director’s application to suspend all in-person and Skype time between Mr. M. and O. and to vary the existing orders.
[100] The Director is entitled to her costs, at the level of ordinary difficulty.
“Choi J.”