Fathers Canada

IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20070207
Docket: 99 2930
Registry: Victoria

Between:

Alan William Smith

Plaintiff

And

June Dermann

Defendant

Before: The Honourable Madam Justice Garson

Reasons for Judgment

[1] This trial concerns the custody and guardianship of, and access to, Kyle Dermann, a child now seven years of age.  The plaintiff and the defendant, the parents of Kyle, both apply for sole custody and guardianship.  Kyle lived with his mother from his birth until March 8, 2006.  On that day, a judge of this court granted Mr. Smith interim sole custody and guardianship of Kyle and granted Ms. Dermann access on Sundays “during daylight hours”.

[2] At the conclusion of this trial I gave judgment awarding sole custody and guardianship of Kyle to Mr. Smith.  After hearing further submissions concerning access, I gave judgment as to the terms of access.  I advised the parties that I would deliver written reasons for my decision.  These are those reasons.

[3] The witnesses in this trial were the plaintiff and defendant, as well as for Mr. Smith, his mother, Marie Smith, his friend, Lisa MacKenzie, and another friend, John Boland.  Ms. Dermann’s witnesses were her adult son, Travis Dermann, and a former live-in nanny, Catherine Bird.

[4] Pursuant to s.15 of the Family Relations Act, R.S.B.C. Chapter 128, a master of this court ordered that a Custody and Access Report (the “s. 15 Report”) be prepared with respect to the custody of, and access to, the child Kyle Dermann.  That report was prepared by Catherine Coulis, a Family Justice Services counsellor.  Ms. Coulis completed the report on January 24, 2005.  The report recommended that Mr. Smith have sole custody and guardianship of Kyle, and that Ms. Dermann have once weekly, daylight hours only, access to Kyle.  Ms. Coulis was cross-examined outside of court on her s. 15 Report on August 12, 2005, by the then counsel for Ms. Dermann.

[5] At this trial I admitted both the s. 15 Report and cross-examination into evidence.  As to the evidentiary value of the factual information in the s. 15 Report I have considered the case of Wu v. Sun, 2006 BCSC 1891, cited by Ms. Stretton for the proposition that I should accept the facts found in the s. 15 investigation Report as prima facie facts unless disproved by evidence in this trial.  As to the investigation that Ms. Coulis undertook herself, I conclude that it is appropriate to rely on those facts unless disproved by evidence at the trial.  The report also contains information which in turn was taken from reports of the Ministry of Children and Families about numerous investigations conducted into complaints about Ms. Dermann’s parenting abilities with respect to all her children.  Those reports of the Ministry were not produced at this trial.  They are the product of years of complaint investigations by a series of social workers involved with the Dermann family.  Although there were many complaints, Ms. Dermann’s children were never apprehended.  I conclude that I should be cautious about accepting the information contained in those Ministry reports and summarized by Ms. Coulis as prima facie fact, unless there is some other material evidence that is confirmatory or corroborative of the Ministry reports.  In these reasons for judgment I will indicate where I have relied on the s.15 Report and how I have treated the evidence in that report.

[6] I turn now to a brief history of the court proceedings concerning Kyle.

[7] On June 23, 1999, a judge of this court ordered that Ms. Dermann be restrained from removing Kyle from the Greater Victoria area.

[8] On June 30, 1999, this court ordered, by consent, that Ms. Dermann be granted sole custody of Kyle, and that Mr. Smith and Ms. Dermann be joint guardians.  The June 23, 1999, order was varied to provide that Ms. Dermann be restrained from permanently changing Kyle’s residence.  Mr. Smith was granted access on Monday and Wednesday from 6:00 p.m. – 7:00 p.m. and Saturday from 9:00 a.m. – 10:00 a.m.  Kyle was then only three weeks old.

[9] On April 14, 2000, this court ordered that the R.C.M.P. apprehend Kyle for the purposes of taking him to his access with Mr. Smith.

[10] On December 20, 2000, an order was made about Christmas access.

[11] On June 29, 2004, the parties entered into a consent order specifying access for the summer holiday.  Mr. Smith was granted a one month period of access.

[12] On November 30, 2004, the parties consented to Christmas access.

[13] On March 16, 2005, the trial was adjourned at the request of Ms. Dermann to March 24, 2005, and reset on a peremptory basis.

[14] On October 26, 2005, the trial was again adjourned at the request of Ms. Dermann, to December 5, 2005, on a peremptory basis.  In the interim period, Mr. Smith was granted alternate weekend access and mid-week access.

[15] On December 5, 2005, the trial was adjourned again at the request of Ms. Dermann.  In the interim period Mr. Smith was granted specified weekend access from Friday to Sunday, mid-week access, Christmas access, and then after Christmas, alternating two week access periods.

[16] The trial was reset to March 6, 2006, but before that date, Ms. Dermann moved to Calgary, leaving Kyle with his father, and as a result, she did not attend the trial in person.  She testified at this trial that she had no money to travel to the trial.  She appeared by telephone on March 6, 2006, and this court awarded sole custody and guardianship of Kyle to Mr. Smith in accordance with the recommendations in the s.15 Report.  Ms. Dermann was granted weekly Sunday access which she has exercised only sporadically since that date.

[17] Kyle is described by all the witnesses as a healthy, active, happy child.  He loves both his parents.  He has had some learning difficulties at school.  In Grade One he had difficulty learning to read.  He has, over the last year, overcome this difficulty, developing now into one of the best readers in his class.  He continues to have difficulty with math.  As already noted, Kyle has lived with his father since March 6, 2006.  Mr. Smith and Kyle live with Mr. Smith’s parents in a two level home in the Oak Bay area of Victoria.  Mr. Smith and Kyle occupy the ground floor which consists of one large room with a fabric divider, dividing their respective sleeping areas from their computer, desk and games area.  They have their own bathroom on the ground floor.  They have free access to the upstairs floor of the house where they have all their meals with Kyle’s grandparents.  Mr. and Mrs. Smith Sr., who are in their seventies but in relatively good health, are involved in Kyle’s daily life.  Kyle is, according to his grandmother and father, emotionally close to his grandparents.

[18] Mr. Smith is 50.  He has never married and he has no other children.  He has multiple physical disabilities which prevent him from being gainfully employed but which are not so significant that they present any barrier to appropriate parenting.  He supports himself from government disability assistance.

[19] Ms. Dermann has had seven children.  Her first child, born when Ms. Dermann was 19, was raised by the child’s father.  Ms. Dermann has had little or no contact with her oldest child.  Her remaining children are: Allen 24, Travis 21, Tristan 14, Angel 13, Dream 6, and Kyle.  Allen and Travis’ father is Roy.  Tristan and Angel’s father is Tim.  Dream’s father is Lawrence.  Ms. Dermann married Tim in December of 2005, moved to Calgary with him in March 2006, separated from him in April 2006, and returned to Victoria.  She now lives in Victoria with Tristan, Angel and Dream.  She has a full-time job at a seniors centre.  Her two oldest boys are self-supporting.  Allen lives in the Victoria area.  He is an apprentice electrician.  Travis recently moved to Vancouver where he works at a number of jobs in the hospitality industry.

[20] All of Ms. Dermann’s children have been involved in Cadets.  Travis testified that he obtained a number of leadership positions with Cadets.  Travis was involved in the Duke of Edinburgh program through which he was awarded a number of medals.  He completed his Grade 12.  He is now working while he considers his future education.  He describes his mother as hard working, and involved as a volunteer in various parent committees and Cadets.  Mr. Smith testified that Travis is a “nice young man” and I too formed the impression that he is a hard working, responsible young man, which is some evidence supportive of Ms. Dermann’s parenting abilities.  Travis is very supportive of his mother’s efforts to regain custody of Kyle.  He took the somewhat unusual step of applying in family court for his own access to Kyle.  He applied for access on three days a week.  The provincial court judge dismissed the application, I assume because the question of custody and access to Kyle is pending before this court.

[21] There are several incidents over the last few years that do reveal something about Ms. Dermann’s nature and her ability to look after Kyle’s best interests.  In July 2002, Ms. Dermann and Mr. Smith were in the midst of a battle over access.  Both were represented by counsel.  Ms. Dermann’s counsel wrote, on instructions from Ms. Dermann, to Mr. Smith’s counsel advising that she and the children were planning a camping holiday from July 12 to July 21 in Comox.  On July 16, counsel for Ms. Dermann wrote to Mr. Smith’s counsel advising she had spoken to “Rosie”, Ms. Dermann’s babysitter.  Rosie advised that Kyle was camping with Ms. Dermann.  In fact Ms. Dermann was in Merritt, without the children, at a country music festival at which she volunteers every year.  When she was cross-examined about this conflict in the evidence she was evasive, and as to the second letter she professed no knowledge.  She testified that she left the four children with a 17 year old babysitter.  She testified that other friends were “looking in and checking on them”.  By the end of the week the 17 year old could no longer cope.  She telephoned Ms. Dermann’s brother.  He in turn phoned the Ministry.  The children were then picked up by Ministry social workers, and delivered to various alternate caregivers:  Kyle to his father, Angel to her father, and the others to a friend or her son Travis.  Ms. Dermann was in Merritt and was unaware of these developments until she returned to Victoria.  In court she did not seem to understand that leaving four children with a 17 year old was not in the best interests of the children.

[22] Ms. Dermann attended a pre-trial conference in February 2006.  She was aware that the trial of this action was set for March 6, 2006.  She was aware that owing to the numerous previous adjournments the case was set on a peremptory basis.  On March 2, 2006, while Kyle was in the care of Mr. Smith, Ms. Dermann moved with her three other children to Calgary.  She then asked that the trial be adjourned.  That application for an adjournment resulted in the order of this court transferring custody of Kyle to Mr. Smith.  On cross-examination at this trial she testified that she did not tell Mr. Smith she was leaving.  She did not give him a phone number at which she could be reached in Calgary.  She testified in quite a vague manner that she expected that the two families could meet halfway to exercise access rights.  She denied that she had then abandoned Kyle.  She testified that the move was precipitated by her eviction from her Victoria rental accommodation.  As noted already the marriage for which she moved to Calgary did not work out and she and her children returned to Victoria by April.

[23] Mr. Smith enrolled Kyle at Monterey Elementary School, in September 2006.  As the sole custodial parent and sole guardian he had the legal right to choose to do so.  In any event it was appropriate that Kyle attend his local school and not the school close to Ms. Dermann’s home.  Ms. Dermann left a message with the principal of Monterey that they were to return Kyle to Tillicum, his previous school, or they would face legal action.

[24] There is a long history of Ms. Dermann refusing court ordered access to Mr. Smith when Kyle was in her custody.  Once Kyle was placed in Mr. Smith’s custody she has not exercised her access on a regular basis.  Unfortunately Ms. Dermann does not drive and does not own a car.  Mr. Smith’s home is about a one hour bus ride from her home, on a Sunday.  She relies on a friend to pick up and drop off Kyle but sometimes her friend has other commitments.  The March 6, 2006, court order enjoined her from calling the Smith house because of her history of making troublesome telephone calls.  Consequently when she cannot get a ride to pick up Kyle on Sunday she simply doesn’t show, Kyle is ready to go, and according to his father, is disappointed time and again.  This is clearly an untenable situation that must not continue.  There is nothing in the March 8, 2006, order that precludes her from asking one of her older children or a friend from calling to advise Kyle she cannot come.  Ms. Dermann did not seem to understand how disappointing her failure to show would be to Kyle.  She does have a telephone and I find it surprising that she could not show the good sense to have someone phone on her behalf if she could not exercise her access.  This demonstrates a disregard for Kyle’s feelings and best interests.

[25] Over the years Ms. Dermann and Mr. Smith have fought in front of Kyle about access.  There have been frequent scenes at the Smith residence, which have included insults to Mrs. Smith.  Kyle gets upset over these fights.  It is important that Ms. Dermann and Mr. Smith find some way to resolve any conflicts over access without involving Kyle.

[26] Ms. Coulis met with Ms. Dermann on two or three occasions.  She saw her briefly with Kyle but was unable to arrange a subsequent meeting with Ms. Dermann and Kyle.  Ms. Dermann complains that the s. 15 Report is unfair to her because Ms. Coulis did not have a good opportunity to see her interact with Kyle in her own home.  I accept that Ms. Coulis made efforts to arrange a meeting with Kyle and Ms. Dermann but that Ms. Dermann was uncooperative in arranging those meetings.

[27] Ms. Coulis’ qualifications to conduct a s.15 investigation and report are as follows.  She is a family justice counsellor.  She holds a Bachelor of Arts degree from the University of Ottawa.  She is a certified mediator. She has been a member of the Attorney General’s Ministry since 1975.  She has worked as a probation officer doing family court work.  She estimates that she has completed about 500 reports in family cases in her career.  She has also worked on developing or improving guidelines for the production of custody and access reports.  I accept her qualifications to prepare the s. 15 Report ordered in this case.

[28] Ms. Coulis summarized Ms. Dermann’s involvement with the Ministry for Children and Family Development at page nine of her report.  Ms. Dermann did not contradict this summary.  She admitted that there were over 50 reports to the Ministry about her.  For the reasons I mentioned earlier, I would accept this evidence with some caution.  Some of this evidence is corroborated by Ms. Dermann’s own evidence.  I have concluded that the Ministry has had over 50 complaints or contacts concerning Ms. Dermann.  From those portions of the file summary of contact with the Ministry that I find reliable evidence, I conclude that Ms. Dermann has had a turbulent and somewhat chaotic family history, with some occasional neglect of her children, but I am satisfied that Ms. Dermann loves her children and does not abuse them.  Her two oldest sons have by all accounts grown into responsible, caring adults.  The family’s enthusiastic involvement with Cadets has been a positive influence on the children.  Dr. Barry told Ms. Coulis that he has been Ms. Dermann’s family doctor for the past 15 years. He states that he has had concerns about her ability to parent however he feels that over time she has become a better parent.

[29] Ms. Coulis did not ask Kyle with whom he wished to live.  But she did ask him what made him happy and what made him sad.  He told her he is happiest at home with his father and saddest when he has to go back to his mother’s home, “because he can’t see his dad.”

[30] Ms. Coulis interviewed Rich Telford, who was then in a romantic relationship with Ms. Dermann.  He told Ms. Coulis that Ms. Dermann is “an excellent mother and that her kids are normal kids.  Allen, her eldest, is a great guy that the kids look up to and that the children come first in June’s life.”  Mr. Telford told Ms. Coulis that he has witnessed Kyle’s temper tantrums in which Kyle screams that he hates his mother.

[31] Ms. Coulis concludes her report with the following recommendations at page 10:

Alan Smith to have sole custody and guardianship of Kyle.

June Dermann to have access to Kyle for one half day each weekend during day light hours.

June Dermann to have no telephone access to the Smith household.

June Dermann’s access to Kyle not be increased until there is evidence that June can accept Alan as Kyle’s father and understand Kyle’s needs for a healthy relationship with his father as a necessity in Kyle’s life.

Kyle to have generous telephone access to contact his mother and sibling.[sic]

[32] I have considered the evidence of all the witnesses whose testimony I heard at the trial, as well as the report of Ms. Coulis.  I have reached the following conclusions:

·         Mr. Smith provides Kyle with a loving, stable and nurturing environment.  Kyle has appropriate routines and appropriate discipline in the Smith home.  Kyle loves and is loved by his father and grandparents.  He is progressing well at school both academically and socially and he is receiving the appropriate support from his father and grandmother for his reading and math.

·         Kyle is attached to his mother and his siblings.  Those relationships are important to Kyle.  It is not in Kyle’s best interests that he live with Ms. Dermann because she has demonstrated over the years that she would not foster but rather would hinder Kyle’s relationship with Mr. Smith.  Ms. Dermann is impulsive and irresponsible.  She does not always consider Kyle’s best interests when she makes decisions about her life.  One example is her impulsive decision to move to Calgary without discussing her move with Mr. Smith just days before a trial that was to determine an important decision for Kyle.  Despite the fact that she had difficulties with accommodation, I conclude that in choosing to move to Calgary, she did not pause to think about the effect that move would have on Kyle or how she would see him or how Kyle would see Mr. Smith if the court awarded her custody.

·         It is in Kyle’s best interests that Mr. Smith have sole custody of Kyle.  Ms. Dermann did not, in her testimony, criticize Mr. Smith’s ability to parent Kyle.  Her concern is that Kyle is attached to her and to his siblings and that she and her children are his family.  She does not acknowledge that Mr. Smith is equally “Kyle’s family”.

·         Mr. Smith and Ms. Dermann are not capable, at least now, of parenting Kyle jointly so joint custody is not appropriate.

·         Similarly joint guardianship is not appropriate because Mr. Smith and Ms. Dermann cannot make joint decisions about Kyle.  Ms. Dermann has made inappropriate decisions concerning Kyle’s health and well being.  One example is her threat to the principal of Monterey School that Kyle should be returned to Tillicum school or face legal action, despite the fact that Mr. Smith was then Kyle’s custodial parent and legal guardian.  There is a risk she would not act in Kyle’s best interests in the future.  So Mr. Smith shall have to make the decisions for Kyle.

·         It is in Kyle’s best interests to maintain a relationship with his mother and siblings.  Mr. Smith acknowledges that it is important for Kyle to have a relationship with his mother and his siblings.

·         Access should be of sufficient frequency and duration for Kyle to have meaningful visits with his mother and siblings.  Ms. Coulis anticipated that access could be increased once Ms. Dermann “can accept Alan as Kyle’s father and understands Kyle’s needs for a healthy relationship with his father as a necessity in Kyle’s life.“  Although I concluded that Ms. Dermann has not fully accepted Mr. Smith’s important role in Kyle’s life, I believe that she now recognizes that she cannot remove Mr. Smith from her family’s life.

[33] Based on those findings I make the following orders:

[34] Mr. Smith shall have sole custody and guardianship of Kyle.

[35] Ms. Dermann shall have access to Kyle as specified below.  It is most important for Kyle’s well being that he have predictable access to his mother and siblings.  By this I mean that Kyle should be able to look forward to planned access periods and should not be disappointed, as he has been in the past, by Ms. Dermann’s failure to collect him.  I recognize that Ms. Dermann has very limited financial resources and that in the past there has been a court order restraining her from telephoning Mr. Smith.  Mr. Smith acknowledged that Kyle should have greater access than was provided for in the March 2006 order.  I have specified access in the detailed manner set out below in an effort to achieve the goals of predictability, improved communication, and the removal of barriers to the transportation of Kyle.

[36] For all access periods Mr. Smith shall have the responsibility to transport Kyle to and from Ms. Dermann’s home.  Mr. Smith and Ms. Dermann are not to communicate with each other at the pick-up and drop-off.  Mr. Smith is to remain in his car.  Ms. Dermann shall remain in her home.  Mr. Smith shall wait at the curb to ensure that Ms. Dermann is at home before leaving.  Ms. Dermann shall not leave Kyle with a babysitter, during access periods, for more than one hour unless the babysitter is one of her sons, Allen or Travis.  Ms. Dermann and Mr. Smith are to avoid communicating about disputes in Kyle’s presence.  Ms. Dermann is not to discuss with Kyle any issues concerning his paternity.  The parties are free to agree to vary the terms of access.

[37] Ms. Dermann shall have access to Kyle on alternating weekends of every month from noon on Saturday to 5:00 p.m. on Sunday.  Access will only occur if one of Ms. Dermann’s children has called Mr. Smith at least 24 hours before the access to confirm that she wishes to exercise her rights to access.  At trial the parties agreed that the first such access period would be February 3, 2007.  Ms. Dermann is not to call the Smith home unless there is a medical emergency or unless there is no other person available to call to confirm or cancel access.

[38] Mr. Smith is to annually prepare two identical large wall calendars showing the access weekends and other periods of access for the year.  Mr. Smith should note the school holidays on the calendar.  One calendar is to be given to Ms. Dermann.  Ms Dermann must give Mr. Smith her telephone number and Kyle is to have unrestricted access to telephone his mother and siblings.  Mr. Smith is not to telephone the Dermann residence except in an emergency or if he has to cancel an access visit owing to a medical reason.  He should make every effort to have someone other than himself make such a call.

[39] Ms. Dermann shall have an access period for half of the school mid-term break commencing in 2008 because Mr. Smith has already accepted an invitation for himself and Kyle to visit friends at Mount Washington during this year’s mid-term break.  If the Mount Washington vacation does not occupy the entire 2007 mid-term break, Mr. Smith is to offer Ms. Dermann additional access during mid-term break.  Commencing in 2008, Ms. Dermann should advise Mr. Smith by January 31 on which days of the mid-term break she wishes to have access to Kyle.

[40] At the conclusion of the school year in 2007, Ms. Dermann is to have access to Kyle for up to four days before Mr. Smith leaves for his July vacation with Kyle.  Ms. Dermann may have a two week period of access to Kyle in August 2007.  Ms. Dermann is to advise Ms. Smith which two weeks she wishes by May 31, 2007.  In subsequent years, Ms. Dermann may have summer access to Kyle for two weeks in either July or August.  She is to advise Mr. Smith by May 31 of each year of the dates she has chosen.

[41] Ms. Dermann shall have Christmas access for the first half of the Christmas vacation from after the last day of school until 9:00 a.m. on Christmas morning of 2007.  The following year she will have Christmas access from 9:00 a.m. Christmas morning until 5:00 p.m. on the evening before Kyle returns to school.  Thereafter the parties shall rotate Christmas access.

[42] On Kyle’s birthday in 2007, Ms. Dermann shall have access to Kyle from after school until 9:00 p.m.  On his birthday in 2008 she shall have access for the same period of time the day following his birthday and thereafter the parties shall rotate access on his birthdays.  Mr. Smith is to provide additional access for Kyle to celebrate birthdays of his mother and his siblings.  Ms. Dermann shall forthwith provide Mr. Smith with a list of birthdays of herself and Kyle’s siblings.

[43] Provided they are polite to Mr. Smith and his parents, Kyle’s siblings shall be entitled to telephone Kyle when he is at Mr. Smith’s home and they may visit Kyle at Mr. Smith’s home if Mr. Smith agrees to such a visit.

[44] Mr. Smith is to mail to Ms. Dermann copies of all Kyle’s report cards within one week of the date he receives them.  He is, at his cost, to provide Ms. Dermann one 5 X 7 school photo of Kyle once per year and sufficient wallet size photos of Kyle for each of his siblings.

[45] I encourage the parties to attend counselling for the purpose of learning to respectfully communicate about access to Kyle, and to provide a forum to resolve access issues without immediately resorting to judicial intervention.

[46] There will be an order that Ms. Dermann shall not, without leave of this court, remove Kyle from the Greater Victoria area.

[47] Consistent with previous orders, there will also be an order that in the event of a breach of this order any peace officer, including Members of the Royal Canadian Mounted Police, are directed to attend for the purposes of enforcing this order at any location where they have reasonable and probable grounds to believe that the child Kyle Robert Dermann, born June 12, 1999, is located and to apprehend the said child and return him to the care and control of the plaintiff, Alan Smith, born March 10, 1954.

[48] There shall be no order as to costs.

“N. Garson, J.”
The Honourable Madam Justice N. Garson