- S.H. v. G.J., 2013 BCPC 242: http://canlii.ca/t/g0pqs
This decision by Judge Dyer is also very lengthy and detailed. That is not unprecedented by any means in a family law dispute, but I sense an attempt to ‘appeal-proof’ this beast. S.H. v. G.J. takes a bold stance on the effect of unlawful belief, one with which I generally agree. Anyway, into the decision.
The parents have a single daughter, age 10. She is the product of an Internet-based long distance romance, the mother resident in B.C., the father in Germany. The mother sponsored the father’s immigration to Canada. Their relationship soured. Mom has custody, with the father having limited access. He is supposed to pay support, but does not. The relationship between father and daughter is reported as healthy and strong. There are scheduling issues with the parents, but nothing out of the ordinary for many separated couples.
Mom is a nurse, but the father, despite having various technical and mechanic training, instead opted for a lifestyle that … well … does this perhaps sound familiar?
The father had fallen in with an OPCA affiliate, Mr. "R.D. from the House of H.": para. 74. The father seems to live with R. of the House of H., when he isn’t couch-surfing elsewhere. The domicile of R. of the House of H. is located “in the land commonly called Coquitlam. I take judicial notice that this land forms part of the province of British Columbia.”: para. 78.[54] His current employment is rather vague. Mr. N. understood that he worked making movie props at a company he had visited several times after work called W.M. D. but agreed this was some time ago. The father gave little evidence as to what he did here or why he left this employment. He says he is now a video editor and journalist. He produces and directs TV shows. He has done some work for R.H., who asked him to document his case apparently involving some interaction he had with a local police force. The father said he was now directing and the executive producer of a comedy series for TV. He said he did political reports for a small TV station, for example, relating to the I.N.M. movement. Most recently, at trial, he describes himself as a private contractor working mainly in movie production doing anything from camera work to directing. He contracted with private people and was paid typically in gas, food, or other barter-like items or services. He said this mode of existence was cheaper than going to school. His longer range plan was to set up a multimedia business. In order to do so, he needed to do free work. This seems to generally be the common denominator of all work the father has done in the last several years. It is unpaid in the sense that, mostly, he does not receive legal tender for his efforts, whatever they may be.
[55] He gave as an example of his current work just prior to trial in April 2013 directing a film of a children's show in a studio somewhere in Vancouver but apparently done free for a non-profit arts society. He said right now, in April of 2013, he had over 30 TV shows he had to work on, different shows at different stages of production. He is seldom paid in advance. Once they are done, he felt there was a good chance he would get a percentage. He did not say of what or when.
[56] Currently and since 2009 or 2010, he has also been an editor working at or with a local independent media organization. He also deals with complaints here. He did not say over what. He is not involved in news but has contributed to a number of stories. It accepts independent stories for publication. He is on its five- to six-person board of directors. Again, he is not paid for his work. It relies for its revenue on donations from its thousands of members or people who read its publications.
Mr. R. of the House of H. testified and did not make a positive impression:
That conclusion is going to have consequences.[80] He introduced himself in court as R.D. from the House of H. Unfortunately, this is not this judge's first experience with this sort of witness and testimony. When a witness is called in court, most judges, I think, want the witness to give his or her legal name and spell it. Witnesses are commonly and routinely asked to do this by court clerks. For a witness to do otherwise, for whatever reason, is unhelpful if not annoying as it requires the judge to use precious court time unnecessarily to establish the correct identity of the witness who is appearing before the judge.
…
[82] Mr. H. was asked to clarify the concepts of freeman and sovereign. He said he was not part of any group. He felt the concept of "sovereignty" was pretty simple and said he had not given up his sovereignty. He seemed not to want to associate himself with freemen-on-the-land, saying he was aware of people in these movements wanting to take over governments, not one of his goals. He said he believed in freedom of all people on the earth. Every man, he felt, had to follow his truth and stand by it and could not permit others to violate it. He opined that this was his interpretation of what the father was doing in the case before me.
[83] In cross-examination, he agreed he saw himself as a sovereign and testified, "I am a human being. I have kept my sovereignty and therefore did not do what they say" - my notes make it unclear who "they" were - "unless I've waived my sovereignty," which I generally understood based on all his evidence on point would be a rare event indeed. He said if a court made an order for someone in B.C. to pay child support, for example, it must be respected, whatever that means, but with the qualifier, only if the person has given up the authority to make his own decisions. This seems to be what he means when he refers to sovereignty. He then testified he had not given up his personal jurisdiction. "Why would I?" he asked, and then spoke words to the effect, "I can't give you my opinion on whether this court has jurisdiction," assumedly over the father, "as I don't have enough facts about the case." Later he said, "Every human being has his own court. There is no need for any court to make a decision on my behalf, and therefore I don't need to concern myself with a court order."
[84] He was asked by counsel if he held a valid B.C. driver's licence and responded that no valid law required him to have one. I recall he was then asked how did he travel to the mother's residence or possibly the school to pick up N. and responded, "In a conveyance," which he would not define, saying he could not recall if it was by car or a horse-drawn buggy.
[85] I cannot help but observe this last piece of testimony is but one example of the apparent disdain this witness must have for the court system. Counsel for the mother was fully entitled to explore in the circumstances of this case whether or not Mr. H. ever drove N. anywhere when he did not at the time hold a valid B.C. driver's licence. This in my view was and is an important issue, of course, bearing on the presence or absence of liability insurance on his car in the event he was involved in a motor vehicle accident with N. riding as a passenger. Mr. H. was both evasive in his answer and disdainful of the court process in the manner in which he dealt with this point, in my opinion.
[86] I conclude Mr. H. does not now possess a valid B.C. driver's licence and does not feel obliged to comply with the relevant provisions in our province's Motor Vehicle Act requiring him to have one if he wishes to drive a motor vehicle as distinct from a horse and buggy in this province. Therefore, when he now drives anywhere, he does so in a manner that is contrary to the provincial laws.
[87] If any of these conclusions are somehow erroneous, it is because Mr. H. could not bring himself, at trial, when he testified, to provide simple, clear answers to the questions Mr. S. put to him that I, as the presiding judge, could understand.
[88] This finding to some extent is corroborated by the father's evidence to the effect that he understood Mr. H. did not hold a government-issued driver's licence as he was not willing to contract into the Motor Vehicle Act. He therefore drove without a valid driver's licence.
The father said he was not a follower of R. of the House of H., but they had a long-standing relationship: para. 91. R of the House of H. identified as a sovereign man, not a Freeman-on-the-Land, but refused to pay tax because he had contracted out: para. 92.
The mother does not want her daughter influenced by R. of the House of H., or OPCA concepts as a whole. This leads to some interesting exchanges between Judge Dyer and the father, for example at para. 96 where the judge interrogates the father as to whether he will encourage his daughter to opt out of filing income tax. At para. 97 Judge Dyer concludes:
The judge concludes that R. of the House of H. is a negative influence on the daughter and it would not be in the daughter’s best interest to be exposed to his ideas: para. 103.I might comment that I have very little faith that the father will not discuss this concept, likely in some detail, with his daughter, it being something that he seems to hold to rather strongly based on all the evidence that he has given before me.
The court orders that R of the House of H. may not drive the daughter anywhere thanks to his ‘travelling’ philosophy: paras. 136-138. Further, the daughter is neither to be exposed to R. of the House of H. nor his ideas: paras. 140-156.I conclude on all the evidence in this case that the father has been and is to some material extent influenced by Mr. H. and no doubt others and that insofar as he feels it is okay not to file tax returns, assuming he has some income, that this is not a lawful point of view and one that N. should be exposed to. Nor do I find her potentially being exposed now or in the future to Mr. H.'s philosophy would be either beneficial for her or in her best interests.
Judge Dyer’s legal reasoning requires that he evaluate when a potentially objectionable belief is or is not a basis to deny or restrict parental access to a child. The chief comparison is with a Supreme Court of Canada case, Young v. Young, [1993] 4 SCR 3, where one parent wished to exclude the other due to affiliation with the Jehovah Witnesses. The Supreme Court of Canada concluded that was not a basis to restrict access. Judge Dyer says here the circumstances are different:
This decision is very important. My observation is that it is not uncommon for OPCA litigants to be single fathers who are, to various degrees, estranged from the remainder of their families. Another uncommon scenario is that a divorced or separated father will adopt OPCA tactics to avoid paying for child support. The father here is at least indirectly doing just that, and got slapped with an imputed income and associated support obligation: para. 20.[156] In the case at bar, there are really two related concerns. The first is, as per the order sought, whether if N. is permitted to be around Mr. H. with her dad, she, too, will be influenced or even indoctrinated by Mr. H., for example, to believe that unlawful acts are okay. There is no evidence that this has occurred yet, and I emphasize "yet." The second concern not raised by counsel is whether or not the father should be permitted to discuss similar issues with his young daughter. Would this be proper parental leadership and a good example to N.?
[157] Would or could either of these concerns, if left outstanding, result in potential harm to N.? In my view, they could well do so. Let me start with the obvious.
[158] N. is a young child going into grade 5. She is already experiencing some stress due to her parents' issues as documented by Dr. Elterman. This is affecting, as I understand it, her progress in school or grades, to some extent. She is impressionable. She loves her dad. As any young child does, she no doubt looks to him and her mother for leadership and guidance including setting boundaries for her own conduct; what she can do and cannot do.
[159] It cannot be right to suggest that part of a proper parental role, now or in future, is to expose her to unlawful ideas or activities or any other unlawful nonsensical views, attitudes, or beliefs that are part of such ideas or activities. She is not now, for example, a young woman in first-year college studying philosophy and old enough to, hopefully, understand the difference between reality and theory. When she is older and knows better who she is and what it is she believes in, no doubt she can and should be exposed to a multitude of different points of view. In my opinion it would now be harmful in the extreme to expose her to a viewpoint that espouses unlawful antisocial activity, carrying with it, if followed, certain risks as outlined above.
[160] I find it is not okay for N. to learn that you can drive without a valid licence or that laws in this province that each of us are bound to follow, if the rule of law under which we all operate means anything at all, can be disregarded because she has not, for example, given up her jurisdiction or contracted in or out of these said laws, whatever it is people like Mr. H. and her father actually believe.
[161] There is absolutely no offsetting benefit or redeeming value in N. now having access to such values, if I can even legitimize them with this noun, whether this access be through her friendship with Mr. H. (his description of his current relationship with her) or from her father.
[162] In my view, a fundamental underpinning of s. 41 of the Family Law Act in so far as it speaks of parenting responsibilities is the need for a parent to instruct and encourage a child to understand the rule of law and even how to seek to change in a lawful way a rule or law that is felt to be unjust or outdated. I would like to think this concept is self-evident.
[163] I note that in this case there is no evidence that Mr. H. is N.'s coach, for example, in some sport or that he has young children who have become close friends of N.'s, all of whom enjoy playing together, and I do not count his 16-year-old son as within such a class of persons. N. sees Mr. H. because her dad chooses to take her there. He has ample time to see Mr. H. and interact with him when not having parenting time with N., in my view.
[164] In the result, I find without any hesitation that this case is one of those rare cases where it is in N.'s best interests, considering all s. 37 Family Law Act factors, that I should make the s. 222 order sought by counsel for the mother and, in addition, restrict the father in what he may do during his parenting time with N. on point.
Judge Dyer’s conclusion that a parent’s duties include teaching a respect for the rule and operation of law means that any divorced or separated parent who adopts OPCA beliefs runs the risk of being denied or having reduced access to their children on that basis. I do not see an error here, but it is a bold policy statement.
I will be very curious to see if this approach is followed by other courts.
My attempts to do other background research on these people proved unsuccessful.
SMS Möwe