2008 BCSC 660err1 H. v. K.

Before: The Honourable Madam Justice Ballance

Reasons for Judgment

Counsel for the Plaintiff:	G.W. Gordon G. Raphanel
Counsel for the Defendant:	F.C. Lowther
Date and Place of Trial:	October 1-5, 9-12, 15-18; December 10-14, 17-21, 2007; and January 7, 2008
	Vancouver, B.C.

I. INTRODUCTION

[1] The principal focus of this dispute is the custody of the parties’ young daughter, P, who was born on August 11, 2004. Sadly for all concerned, this litigation readily falls within the category of a “high conflict” case, and is even toxic in some of its elements. The allegations lodged by each party against the other run the gamut from unremarkable to those that teeter on the brink of the bizarre. Few factual matters were not contentious. Even background facts, which had little or no bearing on the paramount issue in dispute, were curiously at odds.

[2] Cast in broad terms, the plaintiff alleges that the defendant has a dual personality along the lines of Stevenson’s infamous characters, Dr. Jekyll and Mr. Hyde. She contends that despite a Dr. Jekyll veneer of old world courtliness and superficial sociability, when donning his Mr. Hyde persona the defendant was a controlling, emotionally abusive and menacing figure. She alleges that he used a number of strategies aimed at shrouding her in an environment of intimidation. According to the plaintiff, the defendant claimed to be a member of an underground, globally connected group which favoured restoring Imperial rule to Iran and was engaged in the assassinations of sympathizers of the Ayatollah Khomeini regime; had been trained in sophisticated psychological warfare; was familiar with and had used weaponry and explosives; and through his powerful connections and via his own superior extrasensory capabilities, was able to watch her from afar and monitor her movements. She says that soon into their relationship, he repeatedly threatened her in various ways as a means of exerting control.

[3] The defendant balks at the plaintiff's sinister portrayal of him. He contends that her accusations are attributable to the fantastic imaginings of her disordered and paranoid mind. He complains that the plaintiff has concocted a tale of his alleged orchestration of a climate of fear in order to justify her abduction of their child and to bolster her position in this litigation that the child be permitted to move with her to New Zealand.

[4] As explained in these reasons, I have concluded that the plaintiff’s evidence about salient events is more accurate and reliable than the versions offered by the defendant. My experience and common sense also tell me that, in relation to some matters, the truth likely lay in that amorphous grey zone which exists between the extremes presented by the parties.

II. BACKGROUND

(a) The Parties

[5] The plaintiff was born in Cambridge, England in 1971 while her father was studying at that University. As a young girl she moved with her family to Auckland, New Zealand (the birth place of both her parents) and resided there for approximately seven years. It was during that time that the plaintiff developed a strong and enduring bond with her paternal grandmother. When the plaintiff was ten her family relocated to Canada. With the exception of grade six, she received her elementary schooling at private schools, which were founded on the tenents of Rudolf Steiner. The plaintiff attended a Steiner based school in Germany through an exchange program in grades 11 and 12. Her parents and younger sister joined her there for her grade 12 year.

[6] One of the themes peddled by the defendant is that the Steiner teachings and, in particular, the counter-mainstream belief system that it promotes, embody a cult-like mentality. The philosophical underpinnings of Steiner schools, which exist throughout Europe, New Zealand and in Canada, were therefore explored at considerable depth in the cross-examination of the plaintiff. The thrust of the questioning was aimed at discrediting the Steiner perspective as a means of laying a foundation to support an inference that the plaintiff’s involvement in it contributed to her alleged impaired mental stability. The defendant’s attempted indictment of the Steiner approach to education had the chilling appearance of persecuting the plaintiff merely for having been exposed to a particular belief system. The attack of the plaintiff on this footing was hopelessly misguided and failed to taint the integrity of her intelligence or call into question the stability of her emotional or mental well-being. What it did accomplish was to provide an understanding of how the plaintiff might be pre-disposed to believe the rather outlandish claims made by the defendant about his self-importance and special abilities.

[7] After completing high school, the plaintiff attended college for one year and then transferred to a Canadian university. It was around this time, or possibly slightly earlier, that her only sibling was diagnosed with a bipolar disorder. The plaintiff found dealing with her sister’s strange behaviour, which included rampant promiscuity and threats of suicide, to be draining and humiliating. In her early twenties, the plaintiff found herself taking steps to distance herself from her sister and, to a lesser extent, from her mother. She moved away and finished her Bachelor of Science degree at a university in another Canadian province. After receiving her undergraduate degree, the plaintiff travelled throughout the Middle East. She learned to speak Arabic and for a time studied at the British Institute in Cairo, Egypt where she worked in a hospital. Fuelled in part by her desire to distance herself from her sister, the plaintiff went through a phase of searching for her own identity. Because she never liked her first name, and wishing to do something symbolic of her desire to dissociate herself somewhat from her family, the plaintiff changed her first name. She also temporarily changed her surname more than once, adopting Persian and Arabic words for her names. She eventually reverted back to using her birth surname.

[8] The defendant contends that the plaintiff possessed a peculiar fascination with Middle Eastern culture and people. In this regard, he notes that at one time she was engaged to a physician who was Persian and that he, the defendant, is also of Persian descent. He says that this in combination with the plaintiff’s travels to the Middle East and her changes of name are symptomatic of her abandonment of her Western family roots and speaks to her life-long affliction of mental instability.

[9] Clearly, certain aspects of some Middle Eastern cultures resonated with the plaintiff. The suggestion that her interest in Middle Eastern people and culture belies an abnormal preoccupation or unhealthy fascination is a troubling one intellectually and on other levels but, in any event, it was in no measure borne out by the evidence.

[10] In 1995 or 1996, the plaintiff began medical school at a Canadian university. To her intense embarrassment, her sister was a frequent in-patient at the psychiatric unit on campus. Colleagues on rotation in that department came to know of the plaintiff’s sister and her episodes of extremely inappropriate behaviour triggered by her illness.

[11] While on her obstetrics rotation at the hospital in 1998, the plaintiff met the defendant. At the time, the defendant was employed as a hospital technician. He was older than the plaintiff by sixteen years.

[12] I will depart from the chronology to give an overview of the defendant’s background leading up to his meeting the plaintiff. He was born in Iran in the time of the regime of the now deposed and deceased Shah. He describes his family as having been aristocratic with political connections, and his up-bringing marked by privilege. The defendant is a university educated man with a degree in business management. He was also educated in the ways of the military, having been a member of the Iranian Air Force for four years. There he was trained in martial arts, psychological warfare techniques and the handling of firearms and explosives.

[13] I found it difficult to follow the defendant’s testimony about the sequence of his activities in Iran. As best I could decipher, he claims that after the revolution in Iran, which ousted the Shah, he started a real estate business with a friend. He subsequently sold that business and then founded and/or was an integral part of a resistance movement fighting against the Islamic Republic revived by the assent to power of the Ayatollah Khomeini. According to the defendant, he was arrested in Iran for appearing to be too "Western" by wearing jeans and smoking an American brand cigarette, and was detained for five to six months. During his detention, he was interrogated and tortured. The defendant says he was released for “no reason” through the intervention of a highly placed family connection. He testified that his work with the resistance organization included an investigation of the operation of SAVAK – the Shah’s secret police force. He stated that he concluded that SAVAK should be dissolved and that he reported his view on the matter to Iran's newly appointed Prime Minister Bakhtiar. He claimed that members of his family and the Bakhtiar family moved in the same social and/or political circles in Iran. The defendant says that Prime Minister Bakhtiar, influenced by the defendant’s views, decided to disband SAVAK in his short tenure as Prime Minister. In or around 1984, the defendant and his colleagues in the resistance organization concluded that the defendant ought to leave Iran because he was an important person and was in danger of being imprisoned.

[14] The defendant says that he fled to India and was granted entry as a refugee. There he met and married his first wife. The defendant carried out a variety of jobs in India. Sometime after the birth of his first child, a daughter in 1986, the defendant and his family left India. Routing themselves through a number of other countries and travelling on forged Greek passports, they ended up at the Vancouver International Airport. The defendant says that he and his family took up residency in North Vancouver without a problem.

[15] Some elements of the defendant’s evidence about his years in Iran and, to a lesser extent in India, portrayed a decidedly grandiose self-image. Much of his story seemed implausible on its face and exhibited his tendency to exaggerate his self-importance, which emerged as a theme in his evidence. Another recurring theme to the defendant’s testimony was his excessive blaming and criticism of the plaintiff, whom he described as being educated but stupid.

[16] The defendant says that his lack of experience in Canadian business prevented him from putting his business management degree to any good use. He worked at a number of menial jobs starting out as kitchen help in a restaurant, moving to pizza delivery, and eventually driving a taxi on the airport run. His second child, also a daughter, arrived in 1989. The defendant’s wife became ill with cancer while pregnant with their third child, a son, who was born in April 1, 1992.

[17] I will refer to the defendant’s children by his first wife in their birth order as the “Eldest Daughter”, “Middle Daughter”, and “Son”. I intend no disrespect in referring to the children in these rather antiseptic terms. I have done so because I wish to preserve the anonymity of the family as best I can and in this particular case there is overlap of their initials and thus the use of initials would have created confusion.

[18] The defendant trained for a hospital position and began employment at a hospital in the lower mainland in 1994. His wife’s health deteriorated to the point where the defendant evidently stopped work for approximately two years in order to nurse her and care for their young children. She died in May 1998.

[19] The defendant recalls his first encounter with the plaintiff occurring a few months later, in August 1998, at the hospital. He offered her a safety pin to hold her ill-fitting large hospital smock in place. After that they chatted periodically about a number of topics including the plaintiff having taken a Persian first name, her sister’s bipolar illness and the defendant’s interest in hypnotherapy and the power of the mind. He told her that he was renting an office by the hour where he carried out some kind of hypnotherapy practice in addition to working at the hospital.

[20] The plaintiff initially found the defendant to be charming and engaging. They formed a friendship. At one point they went to dinner and the defendant mentioned that he had that very day chosen a gravestone for his wife. The plaintiff considered it inappropriate to be socializing at dinner given his undertaking earlier that day and, at her request, the defendant drove her home. The evidence establishes that the defendant made attempts thereafter to get together with the plaintiff. He left her notes and telephoned her at her parents’ North Vancouver home, but she was not interested. The plaintiff had begun developing a serious relationship with a male doctor. She and this man became engaged or were close to becoming engaged when he discovered that the plaintiff’s sister was seriously mentally ill. According to the plaintiff, upon learning of this, her fiancé broke off the relationship. She testified that his abrupt rejection was devastating and that she felt completely “gutted” by it. I accept her evidence about these matters.

[21] It was while the plaintiff was in this weakened and vulnerable state that she and the defendant revived their friendship. Each party says that it was the other who initiated further contact. Resolution of that small point is of no importance.

[22] I accept the plaintiff’s evidence that the defendant offered her much needed reassurance about her own self-worth in the face of her recently failed relationship and her on-going struggle with her sister’s stigmatizing illness. I also accept her testimony that during this courtship period, the defendant doted on her and showed her kindness and understanding and even prepared and delivered meals to her. The plaintiff was receptive to the defendant’s thoughtful efforts and attention. The defendant spoke of the power of hypnosis and of the mind and of clairvoyance. He claimed to possess special mental powers. The plaintiff was intrigued by these paranormal ideas and found they were well-matched to the teachings of Rudolf Steiner.

(b) Co-habitation and Marriage

[23] Within a relatively short time, the parties fell in love and the pace of their relationship accelerated. The defendant testified that he did not consider it “normal” for the plaintiff to be in love with him because he was so much older. In August 1999, the plaintiff moved into the defendant’s subsidized townhome where he lived with his three children. She claims that his townhouse was a pigsty, with dirty laundry strewn across the floor and dog urine and feces throughout. She stated that she could smell the urine the moment she walked into the home. She claimed that the dog got so unmanageable they finally gave it away. The defendant says the plaintiff has exaggerated the messy state of his home and the infrequent "accidents" of the dog. He testified that the dog was “in mourning” and tried to kill itself after the death of his first wife and so he gave it away to a friend.

[24] The parties agree that the relationship between the plaintiff and the defendant’s three children was good at first. The plaintiff says that she attempted to organize the cleanliness of the home and tried to curtail the children’s exposure to television, which she believed was excessive. The children were not receptive. They were not accustomed to her approach and resisted. Resentment began to build on both sides.

[25] The Eldest Daughter testified that it was her initial understanding that the plaintiff was nothing more than a tenant in their home and was renting a spare room. Her evidence on that point was internally inconsistent and was completely at odds with the testimony of her father. It was also incompatible with the evidence of the Middle Daughter, who testified resentfully that the plaintiff had re-painted her parents’ bedroom as soon as she moved in.

[26] In October 1999, the parties decided more or less on the spur of the moment to get married in a civil ceremony at City Hall. Apart from the two witnesses who were the defendant’s friends, there were no friends or family present. In fact, the defendant’s three children knew nothing of the marriage and did not come to learn of it for several months. I conclude that it was the defendant’s idea not to reveal the marriage to his children and that the plaintiff initially agreed to respect his wishes in that regard.

[27] According to the plaintiff, around the time of the marriage she witnessed a radical shift in the defendant’s temperament and the content of his communications. She testified that he began to paint a far more gruesome picture of his past. She says that he bragged of having connections with the R.C.M.P and other Canadian agencies, and spoke often of his involvement with SAVAK and his connections with the family of the deposed Shah. The plaintiff recalls him showing her a photograph of the late Shah and telling her that the Shah’s wife had telephoned him to offer her condolences when his first wife passed away. He professed to be in the highest echelon of a clandestine organization with agents operating throughout the world trying to restore the Shah dynasty to power. He claimed that his ties facilitated a connection with the Canadian Security Intelligence Service ("CSIS") which, in turn, had enabled his smooth immigration to Canada. He repeatedly boasted about his prowess in matters of psychological warfare. The plaintiff says that the defendant emphasized that while in the Iranian Air Force he had been trained to kill and warned her not to awaken him too suddenly as he might respond instinctively by killing her. He claimed to have the authority to order the assassination of an individual and that he had been on the receiving end of such an order and confided his involvement in other violent missions. She testified that he spoke of his special ability to “remotely view” others, meaning to see things even where they were not within his physical line of sight. She testified that the defendant openly told his children that he was raising them to be fighters and that suicide was a sign of weakness, and that if any of them wished to kill themselves, he would go to the hardware store and buy them the rope.

[28] According to the plaintiff, the defendant encouraged her to confess her own shortcomings and the weaknesses that she perceived in her sister and parents. The plaintiff says that the defendant deprived her of sleep, keeping her up to dwell on and articulate her fears and flaws. He repeatedly likened her to a pus-filled wound that needed to be purged. The plaintiff claims that at times the defendant would lurch at her aggressively as though moving to slug her, but would stop himself just an inch or so short of impact. She says that he began to compel her to participate in sexual activity she found unpleasant and degrading. He expressed contempt for the Canadian way of life and made racist remarks about Caucasians and expressed the view that Persians were superior. It is noteworthy in this regard, that the defendant testified that he was surprised to learn that the fiancé was Iranian because they are generally so much more compassionate than are Canadian people. The plaintiff claims that the defendant regularly made deprecating remarks about her father and mother. He would suggest to her that her father should hire someone to kill her mother.

[29] The plaintiff says that relatively early in their cohabitation, the defendant told her that he did not think it would be safe for her to venture out of the townhome on her own. At first, she construed this as a loving concern for her safety. After the marriage, the plaintiff says the defendant told her that only “whores” went outside unattended, and warned that he had people “watching” her when she did leave the home.

[30] The Eldest Daughter and the Middle Daughter were age 21 + 18 at trial. They each testified about an incident at a retail clothing store involving the plaintiff likely sometime in the fall of 1999. At the time, they were respectively aged about 13 and 10. The daughters recounted that they were shopping for clothes with the plaintiff when she suddenly had some kind of tantrum. She sat down in the middle of the store and began yelling and sobbing. Store security were eventually called to escort her off the premises. Both daughters say they were terrified and embarrassed by the incident. I accept that this incident occurred generally as the daughters described it in their evidence. The Eldest Daughter later told her father about the plaintiff's outburst and says that he told her that the plaintiff had been neglected and/or abused as a child. She claims that upon learning this, the children were moved to take pity on the plaintiff whom she likened to a “stray cat” and to make an even stronger attempt to include her as part of the family. This was difficult to reconcile with the Eldest Daughter’s evidence that she had understood at that time that the plaintiff was merely a tenant occupying a spare room in their townhouse.

[31] The plaintiff testified that in short order she became emotionally unravelled and felt like she was wallowing in depression. She says she has only a spotty recollection of events in the late fall and December of 1999. The evidence indicates that the plaintiff’s emotional and mental well-being did decline after the marriage in the latter part of 1999. She attributes her deterioration to a combination of being in a weakened and vulnerable state triggered by her fiancé’s rejection, the defendant’s manipulation and humiliation of her to a lesser extent, and the stress brought about by her rocky relationship with her stepchildren.

[32] The defendant’s evidence, supported by the evidence of his two eldest daughters, provided a scenario where the plaintiff’s behaviour changed suddenly after the marriage. He says that seemingly out of nowhere, she became an insomniac, irritable, distractible, insecure and appeared depressed. He flatly denies the plaintiff’s assertion that he was orchestrating a concerted strategy to break her down. He claims that it was plaintiff who insisted on talking throughout the night, and that she confided things like the “grey wolf” (meaning depression) had grabbed her and that she confessed thoughts of suicide. He claims that she even hallucinated at times.

[33] The defendant testified that he became alarmed by his wife’s disturbing change of personality and suggested to her that she see a doctor. According to him, the plaintiff responded with a confession that her father had taken her to psychiatrist when she was 13 years old, who diagnosed both she and her younger sister as being bipolar. He said she explained that she never received medical treatment for that disorder because it could have been a “problem for her education”. In much of his evidence the defendant depicted the plaintiff’s sister as a balanced, reliable and nurturing person, and portrayed the plaintiff as the one who suffered from a debilitating psychological illness, such as bipolar disorder. The defendant denied any sexual violation of the plaintiff, but in the next breath, hinted that she is somehow sexually abnormal and has sexual problems and would “jump on him” in the middle of the night, demanding sex. He testified that the plaintiff was extremely jealous of him and that she kept statistics about how many women looked at him.

[34] The defendant maintained that the plaintiff loathed her father and considered him to be a “doormat” to her mother. The evidence very clearly established this contention to be fictitious.

[35] The plaintiff’s father has a doctorate in engineering from Cambridge. He has taught engineering at a Canadian university and in Auckland. He ran an engineering business that has taken him all over the world. Since selling the U.S. operation, his travel and workload has lessened considerably. He is 65 years old and plans to reside with his wife in their birthplace of New Zealand for large periods of time.

[36] The plaintiff’s father testified that he initially found the defendant to be a cultured person. The defendant relayed to him a privileged past and stressed that he had been a close friend of the Shah’s family, especially the Shah’s son and said that his father had been the head of a police force in Iran. According to the plaintiff’s father, on many occasions the defendant spoke of some kind of connection with CSIS and claimed to know senior police officials in Canada. He recalls an occasion when he accompanied the defendant to visit a person he understood to be the head of the local detachment of the R.C.M.P. From the father’s perspective, that person greeted the defendant like a “long lost friend”. Given the way that the defendant had portrayed his background and connections, that extremely friendly exchange with the R.C.M.P officer made perfect sense to the plaintiff’s father and verified in his mind the defendant’s claims of having police connections at high levels. The plaintiff had also witnessed what she interpreted to be extremely friendly exchanges between a local police officer and the defendant.

(c) Consultations with Dr. S., the American Psychiatrist

[37] The defendant’s evidence is that around December 1999, he suggested that the plaintiff consult a psychiatrist in the U.S.A. and she agreed. He recalls that she used the internet to find the names of three psychiatrists working in the Bellingham area and that he left each of them telephone messages. Dr. S. was the only one of the three to respond. The plaintiff and defendant travelled to Bellingham together to consult with Dr. S. on December 11, 1999. The defendant says that the plaintiff insisted that he accompany her because she was in no state to drive herself and was paranoid, expressing the belief that most doctors were “rapists”.

[38] The notes made by Dr. S. and his subsequent letter summarizing his treatment of the plaintiff were admitted into evidence by agreement as to their authenticity. They were not admitted for the truth of their contents and Dr. S. was not called as a witness. This is a convenient place to mention that there were many other documents in evidence which were not admitted as proof of the truth of the statements which they contained.

[39] The plaintiff gave evidence about the notes made by Dr. S. in her direct examination and was cross-examined about them at length. She says that she has hardly any recollection of meeting with him that December. She explained that by this stage she had been “broken down” by the defendant; she was distressed and not herself. Her husband was by her side throughout the entire examination. In reviewing Dr. S.'s notes, the plaintiff pointed out the difficulty they present in distinguishing between statements that she may have made from things that the defendant may have told him. I agree that the consult notes present some difficulty in this regard.

[40] The plaintiff agreed that certain contents of Dr. S.'s notes appeared accurate on matters such as the fact that her sister was bipolar and in his summary of the plaintiff’s family history and background. At the same time, however, she complains that many of the notations are completely untrue including, for example:

· reference to the plaintiff’s alleged excessive use of sugar and psycho-stimulants to bolster depression

· reference to the plaintiff taking stimulants off nursing carts

· reference that the plaintiff felt embarrassed going to a general practitioner

· reference to possible problems experienced by the plaintiff around eating.

[41] Dr. S. noted brief periods of depression of “crisis proportions” lasting three days and occurring about three times a month. When asked about Dr. S.'s note to the effect that she had suicidal thoughts when in a deep depression, the plaintiff testified that she has never had suicidal ideation and that although she has felt “down” before, it was never that extreme.

[42] Dr. S. prescribed the plaintiff a number of medications. The evidence establishes that the plaintiff took the medications right away and that they caused severe adverse side-effects such as drooling, staggering, and disinhibition. The defendant agrees that he noticed that the plaintiff appeared totally different and more agitated once she began taking the medication. The defendant’s children made fun of their step-mother's newly acquired peculiar afflictions. The Middle Daughter testified about her step-mother’s drooling and unkempt state with obvious revulsion these many years later. The children were not aware that these unattractive side-effects were being caused by medication.

[43] Dr. S.’s notes indicate that he had approximately five follow-up telephone conversations between December 13, 1999, and January 7, 2000. It is not entirely clear on the face of the notes how many of these sessions involved the plaintiff’s active participation, nor is it clear how many involved the defendant either exclusively or along with the plaintiff.

[44] The defendant, the Eldest Daughter, and the Middle Daughter gave evidence about an incident said to have occurred in December 1999, or possibly early January 2000, involving the plaintiff. The defendant was at work at the time. According to the Eldest Daughter, the plaintiff had been staggering and drooling for a period of two weeks or so. It was getting dark outside. The plaintiff was looking for the car keys and mumbling that she wanted to go up Grouse Mountain to burn her body and declaring that the defendant did not love her anymore. It was clear to the Eldest Daughter that the plaintiff was in no shape to drive, so she took away her car keys. She testified that the plaintiff attacked her and began to hit, bite, and scratch at her arms in a bid to retrieve the keys. The Eldest Daughter testified that the physical altercation continued from one room into the hallway and that after a while she awakened to find herself in a closet. She testified that the plaintiff’s sister appeared on the scene out of nowhere and intervened to protect the Eldest Daughter. She testified that the next morning the plaintiff distorted the event in her re-telling of it, declaring that her sister had tried to kill the plaintiff. The Eldest Daughter said that she did not tell anybody outside the family what had actually happened because she understood that the plaintiff’s medical education would be "stripped" from her and she did not want to be responsible for that.

[45] The evidence of the Middle Daughter was along the same lines, although given with less detail. She added that the evening of the incident she and her brother fled up the street to her grandfather’s home where they called their father at work and the police. The defendant testified that he raced home from work and that two police officers did show up. He said he explained to them that the plaintiff was in crisis and told them that he did not need them and they went away. The plaintiff says she has no recollection of the incident.

[46] I have concluded that an incident along the lines described by the Eldest Daughter and Middle Daughter took place at a time when the plaintiff was taking the medication prescribed by Dr. S., which caused her severe and disinhibiting side-effects. Very shortly after the occurrence of that incident, the plaintiff stopped taking those medications and the extreme side-effects disappeared.

[47] The defendant testified that sometime after the car keys incident, the plaintiff’s parents came to the home for a family meeting at the behest of the plaintiff’s sister. He says that during this meeting the plaintiff’s father disclosed that both of his daughters, that is the plaintiff and her sister, had been diagnosed as bipolar. The Eldest Daughter and Middle Daughter corroborated the defendant’s testimony in this regard. Their evidence was that the meeting was like an intervention with the plaintiff’s father emphasizing the need to support the plaintiff and keep quiet about her illness.

[48] The plaintiff’s father denied participation in a family meeting to discuss the plaintiff. He insists that she has never suffered from a bipolar disorder, and he denies ever having described her as such to the defendant or to his children. He testified that the plaintiff’s health was good while growing up and denied the suggestion put to him on cross-examination that she attempted suicide in her teen years. I accept the father’s evidence.

(d) Purchase of the Matrimonial Property

[49] It was during this timeframe in late 1999 that the parties were actively looking to purchase a home outside the city. When the parties met, the plaintiff owned an apartment in Vancouver. It had been purchased in around 1995 mostly or exclusively from funds which the plaintiff had inherited from her grandfather. The defendant and his late wife had many times visited a certain coastal area of B.C. and were drawn to its physical beauty. Early in the marriage, the defendant raised with the plaintiff the idea of moving there. The defendant represented to the plaintiff that he had obtained approval for financing to purchase a house in that area. The plaintiff was eager to assist with the move.

[50] In November 1999 the parties looked at a number of homes for sale in that area in what the defendant contended was "his" price range. At the end of November 1999 they settled on a more expensive property, and together entered into an agreement to purchase it for $290,000 (the “Matrimonial Property”). As part of the transaction, the parties were required to increase the deposit to $19,000 by December 14, 1999. The evidence established that the defendant misrepresented his financial circumstances to the plaintiff and also to her father. He indicated to the plaintiff that he would have the sum of $19,000 available to him and would apply it to increase the deposit on the Matrimonial Property. In professing his ability to make this financial contribution, the defendant went so far as to write a cheque on his account payable to the realtor for the sum of $19,000. He knew very well that he had no funds to support the negotiation of that cheque.

[51] The defendant's cheque for $19,000 was returned "nsf" and the parties had to scramble to obtain a short term loan to pay the increase in deposit. When cross-examined about the matter, the defendant offered a nonsensical explanation along the lines that the requirement to increase the deposit was some kind of goodwill gesture only and that there was no genuine expectation that the deposit actually had to be increased. He acknowledged that he did not have the funds to cover the cheque, but insisted that it did not matter because there was no real expectation to pay. The defendant refused to acknowledge that he and the plaintiff were given a short term loan by a credit union for the sum of $19,000 to pay the increase of deposit, even though he was presented with cogent documentary evidence to that effect. The evidence established that just a few days earlier, the defendant had obtained a loan from an institutional lender in the amount of $9,098 at 29.95% interest, in order to cover his credit card indebtedness, which he described as being "maxed-out". The defendant had tried to get a loan from a conventional bank but it had refused to grant him one because of his poor credit rating.

[52] In earlier discussions, the defendant had assured the plaintiff’s father that he would have “no problem” getting a mortgage for $300,000. The father testified that the defendant's assurance struck him as strange because he was aware that the defendant was earning only about $40,000 per year at the hospital, which he surmised would not be adequate to support a $300,000 mortgage. However, the plaintiff’s father did not pay too much attention to the assertion and assumed that the defendant must have other assets or perhaps a good income from his hypnotherapy business to sustain such financing.

[53] In early 2000, the plaintiff had been trying to sell her Vancouver apartment with the intention of using a portion of the sale proceeds toward the completion of the purchase of the Matrimonial Property. When it became clear that her apartment may not sell in time to complete the transaction in February 2000 and the defendant had no ability to raise any portion of the down payment, the plaintiff’s father stepped in and purchased the apartment from his daughter for its fair market value. He deposited the purchase amount of approximately $105,000 into the parties’ joint bank account. From that amount, the short term loan to cover the $19,000 deposit was repaid and the balance was credited to the purchase of the Matrimonial Property. Title to the Matrimonial Property was placed in both parties’ names as tenants-in-common. It seems that they each signed the mortgage documents.

(e) Residence in the Prairies

[54] The plaintiff did not wish to enrol in the residency program where she had obtained her medical degree, largely due to her on-going concern about the embarrassment that her sister’s erratic behaviour might bring. In about the third week of January 2000 she flew to the prairies and was interviewed for a residency position in the department of medicine at a university there. Dr. M, the Assistant Dean of Post-Graduate Medical Education of that university, participated in the interview. Dr. M recalled that the plaintiff stood out as outstanding in her interview. Comments made about the plaintiff by the interviewers included: enthusiastic and spontaneous, has a love for learning that clearly came across, a unique individual, and has a mature decision-making approach. She was also described as: responsible, acknowledges mistakes, very pleasant, articulate, seems inquisitive, polite and would be interesting to work with. Dr. M noted that the plaintiff's references were congruent with what she and her fellow interviewers observed of her during the interview. The plaintiff accepted a residency position at the university to commence in the summer of 2000.

[55] The plaintiff began her residency as an internist in the prairies in July, 2000. She testified that the defendant was not happy about her going away. She assumed that his unhappiness was mostly because it would be difficult to control her from afar. However, she said that she soon discovered that he was able to exert considerable control over her even though they lived thousands of miles apart. According to the plaintiff, the defendant insisted that he would be keeping her under his surveillance while she resided in the prairies. At trial, she conceded that in retrospect, that idea did sound fantastic but that, at the time, she did not doubt he had the capacity to implement it. The defendant testified that he had no problem “letting her go” to the prairies.

[56] The parties persistent financial problems became even more pronounced after the plaintiff moved to the prairies. They fell behind in paying the mortgage and in the payment of property taxes. Before the plaintiff moved to the prairies the parties each executed a power of attorney in favour of the other. Using his authority as the plaintiff’s attorney, the defendant arranged for a $15,000 second mortgage against the Matrimonial Property shortly after the plaintiff departed. When the plaintiff first arrived in the prairies she rented a lovely apartment. She later moved into a small, dingy, and sparsely furnished basement suite and slept on a mattress on the floor. She lived frugally, eating nothing except protein drinks for weeks at a time in order to save money. The charges on her Visa card quickly reached her maximum limit.

[57] Approximately every 2½ to 3 months, either the plaintiff would fly home or the defendant would visit her. The plane tickets were typically purchased by the plaintiff’s father using his accumulated travel points. The plaintiff testified that she was not keen on visiting the defendant and preferred living on her own.

[58] The plaintiff had in the past assisted her father taking measurements and carrying out other aspects of his engineering work. While she was in the prairies, he suffered a heart attack and asked her to return home for a short period to help him with an on-going project. I accept the plaintiff’s evidence that when she arrived home, the defendant insisted on lending a hand to her father and refused to allow her to assist. According to the plaintiff’s father, the defendant tried to help for four to five days. During that time, the defendant disclosed the full extent of what he described as his connection with CSIS and spoke of all sorts of sexual exploits. By all accounts, the defendant’s short involvement in the father’s engineering project was a disaster. The plaintiff’s father testified that it was obvious to him that the defendant had a very limited concept of business acumen. The defendant finally relented and permitted the plaintiff to come to the aid of her father.

[59] I accept the evidence of the plaintiff’s father that the Matrimonial Property was in good condition when the family first moved in. Over time and mostly while the plaintiff was living in the prairies, it deteriorated significantly. The lawns became overgrown, rubbish piled up in the garage and the place was generally untidy. The father recalls being concerned about the presence of rats. His impression was that the defendant took great pride in having rats on the property and in killing them, recalling an occasion where the defendant took particular delight in killing a rat with the heel of his shoe.

[60] It is common ground that the parties spoke on the telephone extensively. Each of them says that they engaged in daily and often lengthy telephone conversations at the insistence of the other. According to the plaintiff, the defendant demanded that she leave the hospital and return home immediately after the completion of her rounds to call him or to be available to receive his call on the land line at her apartment in order to satisfy him that she was at home. The plaintiff testified that her leaving quickly at the end of each shift created tension between her and her colleagues. She testified that the defendant also insisted that she carry a cellular telephone at all times during the day in case he wished to contact her while she was at the hospital.

[61] The defendant denies all accusations of using the telephone as a mechanism of control over the plaintiff. He alleges that it was she who would call him and keep him on the line for hours at a time as a means of tracking his movements. The defendant testified that his children complained bitterly about the extent to which the plaintiff kept him on the telephone and that he told the plaintiff to stop calling him so much. The parties were racking up large long distance telephone bills which were not being paid in full when due. The plaintiff’s father recalled that on many occasions when he spoke to his daughter on the telephone the defendant would also be on the line. Sometimes the defendant would acknowledge his presence and other times the father would have to directly ask whether the defendant was on the line. He and his wife gradually became worried about the defendant’s level of involvement in the plaintiff’s daily life.

[62] According to the plaintiff, the defendant would fly into a rage at the mere suggestion that she might interact with her work colleagues. She says that for this reason, she was always careful to downplay any involvement she might have with colleagues. She deliberately referred to them by their surnames so that the defendant would not think that she had developed any personal bonds. The plaintiff also claims that the defendant’s threats accelerated while she was away doing her residency. She contends that he would routinely threaten to have acid thrown in her face or her limbs ripped off if she stepped out of line. He would regularly make other threats as well, such as threatening to tell her medical colleagues and the College of Physicians and Surgeons of British Columbia (the “College") about her "mental breakdown" in 1999. He said this would result in her being thrown out of the medical profession. The plaintiff says that she believed he would make good on his threats.

[63] The defendant claims that one evening the plaintiff called him at about midnight sounding "drunk and drugged". He says that when he confronted her, she denied drinking but confessed that she had been out to see a movie with two male colleagues. The defendant testified that he accused his wife of lying and told her that he considered their marriage to be over. He stated that the plaintiff responded with a threat to kill herself. The following day the defendant called the hospital and was told that the plaintiff had not showed up for work. He says that he contacted the local police who went to her apartment and reported that nobody answered the door and, evidently, they took no further steps. Motivated by his concern for the plaintiff’s well-being, the defendant says that he flew to the prairies and went to the hospital that afternoon. Sometime after his arrival, the plaintiff telephoned him to say that she had taken a bus heading east to Ontario. Within a day or two she returned to her apartment having cut off most of her hair.

[64] The plaintiff’s version is different in significant respects. She says that the defendant had become enraged by the fact that her telephone was not working properly and had rang busy throughout the night. When they finally connected, she tried to assure him that she had not been speaking on the telephone and that something had been wrong with the phone line. She claims that he warned her “life is over as you know it”. She took that as a very clear threat to end her life. The plaintiff was pregnant at that time and had a low threshold for stress. She felt an overwhelming need to get far away from her husband. She pawned her bike and computer and bought a bus ticket to Ontario. It was not disputed that she cut off her hair while away. At trial, she was not asked why she had done so.

[65] The plaintiff testified that the defendant would not allow her to use birth control and refused to wear a condom. After terminating two pregnancies, including the one just mentioned, she decided to see a doctor and was fitted with a birth control device.

[66] I find that while doing her residency, the plaintiff would deposit into the parties’ joint account, as much of her earnings as possible. With the telephone and other household bills continuing to mount during the marriage, the plaintiff began to moonlight to make extra money. Eventually she exceeded the allowable number of moonlighting shifts per month. In October 2002, she was reprimanded by Dr. M for excessive moonlighting and her moonlighting privileges were suspended. Dr. M explained that the plaintiff was by no means the only resident who violated the internal moonlighting policy and, as far as she was concerned, the matter was appropriately resolved at that time. In Dr. M’s view, the plaintiff’s deviation from the moonlighting rule did not reflect poorly on her as a physician and was not a matter of concern for a licensing body such as the College. In his evidence, the defendant suggested that the plaintiff’s moonlighting had been brought to an end because she had refused to cover up a false diagnosis of a patient. The point was not put to the plaintiff or Dr. M and was not credible.

[67] The plaintiff’s parents were generous in providing financial assistance to the parties during the marriage. Sometime in early to mid-2000 the plaintiff, at the defendant’s insistence, asked her father to give the defendant money to enable him to establish a hypnotherapy practice. The financial fiasco surrounding the purchase of the Matrimonial Property had caused the plaintiff’s father to have extreme doubts about the defendant’s financial situation in general and he refused to make the gift. However, approximately one year later in March 2001 the defendant approached the plaintiff’s father directly and persuaded him to give him the sum of $10,000. The father reluctantly obliged. It was not clear on the evidence how the defendant spent those monies, however, I infer that he did not spend it in relation to a hypnotherapy business. The plaintiff’s parents also gave the parties three different vehicles over the years and covered the costs of the plaintiff’s medical board exams and other expenses.

[68] The evidence establishes that the defendant has spent money imprudently throughout the relationship. Her personal credit card limits were at the maximum before he went on disability. I find that that the parties’ large telephone bills were largely the result of the defendant’s actions. In recent years, he has not been able to establish credit in his own name for a telephone and has acquired a phone by using the Eldest Daughter’s credit. In 2006 he insisted on purchasing a ultra-light plane for a cost of several thousand dollars. In 2007 he spent money to purchase guns. His financial statement reveals a debt to Future Shop of more than $6,700. He claims that he has not purchased anything from that store. He suggested that the charges might be the result of “identity theft” but had not had the time to “chase it” down. I do not accept that explanation as worthy of belief. I find that the plaintiff’s credit rating, which had been sterling prior to the marriage, became completely destroyed while she was a resident in the prairies largely on account of the defendant’s financial imprudence or his conduct generally.

[69] Dr. M had extensive and direct contact with the plaintiff throughout her residency from 2000 through 2004. She was an exceptionally credible witness. She noted a number of performance concerns fairly early on in the plaintiff’s residency and kept notes about her performance. Dr. M was concerned that something significant had occurred in the plaintiff’s life between the interview and her commencement of residency in July 2000 because she seemed very different. In a note to file made on September 11, 2000, Dr. M recorded concerns over the plaintiff's distractibility and difficulty collaborating with other staff. In particular Dr. M recorded the following: “We are concerned about [the parties’] relationship but so far have no reason to suspect physical abuse.”

[70] Dr. M explained that there had also been a concern about the plaintiff’s response to extenuating circumstances involving the death of a patient. The death had occurred on a ward where there were already significant concerns about a dysfunctional nursing environment. Dr. M felt that the plaintiff was experiencing acute stress from the difficult situation surrounding the patient’s death and chronic stress resulting from her home/family situation. That prompted her to put the plaintiff in contact with the physician support program to meet with a psychiatrist. Dr. M noted that the psychiatrist’s assessment of the plaintiff confirmed that she was fit to return to normal duties.

[71] Dr. M also recounted the incident where the plaintiff had taken a bus back east for a few days. She testified that the defendant had telephoned the hospital demanding to know the whereabouts of the plaintiff. Because of the concerns about the possibility of the plaintiff being physically or emotionally abused by the defendant, the staff refused to give him the information he sought. Later that day, the defendant physically appeared at the hospital. The staff reported to Dr. M that he seemed agitated and claimed the plaintiff had bulimia, that she should not be working, and that he had a power of attorney, which could prevent her from continuing to work. According to Dr. M, the office staff reported feeling quite intimidated by the defendant. Dr. M testified that the plaintiff had let the hospital know right away that she had gone and explained that she needed distance between herself and the defendant. Dr. M testified she was concerned on multiple occasions that the plaintiff was being abused by the defendant and discussed her concerns more than once with various other staff members. Dr. M recalls an occasion where she noticed bruises on the plaintiff’s arm and asked her whether she was safe at home. The plaintiff assured her everything was fine.

[72] It was Dr. M’s assessment that despite her shaky start to her residency, the plaintiff ultimately excelled in the program. She received top honours in her first and second research projects. Her teaching presentations received excellent grades. In Dr. M’s view, the plaintiff overcame the issues that had been identified as concern during her first year. In her final year, her skill as a clinician grew at a rapid pace and, in Dr. M’s estimation, she blossomed in terms of her confidence.

(f) The Defendant’s Disability

[73] In May 2000, the defendant had been walking down the hallway at the hospital when a door unexpectedly opened and hit him on the forehead. He may have blacked out briefly. The defendant was taken to the emergency ward and given stitches above his left eye. He subsequently experienced on-going symptoms including pressure inside his head and periodic headaches. Two years after the accident, he still appeared to be symptomatic and reported feelings of intense disorientation and complained of significant impairment to his short-term memory. At trial, the defendant agreed that in July 2002 he reported to a neurologist that he had a bad mood and a short fuse to his temper. He explained that people could say things that would make him lose his temper. In that context, he referred to his supervisor at the hospital and how the supervisor had no right to tell him how to perform his work.

[74] After September 29, 2002, the defendant took a short term disability leave from work and began to receive unemployment insurance benefits. In January 2003, he completed a claimant’s statement in support of an application to receive long-term disability benefits. In this form, the defendant described his condition as including severe depression, panic attacks, extreme fatigue, vertigo, memory loss, disorientation, head pressure, some hallucinations, dissociation, difficulties remembering words and names, and allergies. He reported that because of his problems he was not able to drive. The defendant’s family doctor, Dr. D, completed a physician’s statement of disability which was submitted as part of the defendant’s disability application. The primary diagnoses she noted was depression, delayed bereavement reaction, and post-traumatic headaches. The defendant testified that he did not agree with the aspect of her diagnosis pertaining to delayed bereavement over his first wife’s death.

[75] In February 2003, Dr. D referred the defendant on an urgent basis to the local mental health services unit. Her notes indicate that the reason for the referral was because the defendant was suicidal and depressed. The defendant did not agree that his physician’s referral note accurately described his condition at that time. He testified that he was experiencing a great deal of physical pain and had told her words to the effect that if the pain was going to continue for his entire life, then he would rather be dead, and that she had misinterpreted that comment as amounting to suicidal thoughts. The defendant’s claim for long-term disability benefits was approved.

[76] Starting in approximately April 2003, the defendant began receiving treatment from a psychiatrist. In July 2003, he completed another claimant’s statement in support of his continued claim for disability benefits. He agreed that he relied on his initial statement, which he had filled out in January 2003 as a baseline report upon which he measured his progress or deterioration for subsequent reports. Asked to describe changes in his condition since his statement of January 2003, the defendant wrote that he was still very depressed, physically fatigued, had body pain, that his memory and concentration were bad, that he was not capable of driving, and that the only improvement was that he was able to read about one page.

[77] In his third self-report submitted to the disability insurer in April 2004, just a few months before P was born, the defendant stated there were no changes to his condition since completion of his last report. He recorded that he experienced more memory difficulties in remembering names and now had knee joint pain. Under the heading of "Daily Routine" he referred to experiencing headaches and disorientation. His psychiatrist completed a physician’s statement in support of the defendant’s on-going disability. He described the defendant’s ability to perform activities this way:

Daily Living ─ limited

Self-care and hygiene ─ episodically

Household Chores ─ with time he can do that

Travel – housebound

Social Activities ─ none now

Recreational Activities ─ none now

[78] The defendant agreed that the psychiatrist’s above assessment was generally accurate. In cross-examination he confirmed that at least as of November 2004, he was basically “lying in his bed” as a consequence of his disability. He also testified that the physical pain made him feel like a “tiger in a cage” and caused him depression and prevented him from fulfilling his duties as a father and a man. However, at another stage in the trial, he denied being in bed a good part of the day, contrary to his evidence on discovery and the evidence he had given at trial. At yet another point, he testified that when he slept during the day, P would sleep with him.

[79] In a form completed by the psychiatrist February 2, 2005, he noted that there were no real changes to the defendant’s condition and that he remained depressed and was housebound. The defendant agreed that his psychiatrist’s description accurately described him at the time.

[80] In a subsequent questionnaire supplied by the disability insurer, the defendant was required to describe his daily routine as at October 1, 2004. He described a good day as follows:

waking up a different time of day usually 12:00 p.m. or 1:00 p.m. having tea. Taking some vitamin and herbal medicine. Some brief moments with family. Then going back to my Room. Some days shaving or shower. Usually a good day for me is a day with less pain.

In describing an average day the defendant wrote:

Try to stay in my Room More movement more physical pain more headaches more fatigue.

In terms of a bad day the defendant stated:

I do not leave my Room. Try to take more painkillers.

[81] The defendant reported that he had very few good days and experienced an average day a couple of days a month. He reported that most days of the month qualified as bad days. He further reported that his condition had generally deteriorated since he ceased working in September 2002, and that he was more depressed and extremely tired all of the time with more body fatigue and more headaches. He wrote that “sometimes I don’t leave my room for days”. The defendant reported that he could only walk for about ten minutes, and could not lift, carry, vacuum, do laundry, garden or do yard work. He reported that he could not stand or sit for very long and could only shop for a very short time.

[82] The defendant’s testimony about his depression was inconsistent. He repeatedly agreed that his diagnosis of major depressive disorder was accurate. He contended that his depression was severe enough to receive disability benefits, and yet at the same time, maintained that his depression and other symptoms did not interfere with his ability to care for P on a daily basis. The inconsistencies were never adequately explained or rationalized.

(g) Life with P

[83] By December 2003, the plaintiff was pregnant again and decided to carry the baby to term. She finished her residency in June or July 2004 and returned home. The parties' daughter P was born on August 11, 2004. The defendant was still not working and was on long term disability.

[84] The plaintiff testified that because of their financial crisis, the parties agreed that she should shorten her maternity leave and commence her medical practice in December 2004. Incredibly, the defendant denied that there was any financial need for the plaintiff to return to work after having P and denied that they had any kind of discussion about it. He claimed that their only debt problem was with the hydro bill. The preponderance of the evidence in no way supports the defendant's testimony. It was abundantly clear that the parties were having severe financial problems and that the logical course was for the plaintiff to start work as soon as possible.

[85] The plaintiff worked extremely diligently to build her medical practice. She described her typical work day as starting by taking her two youngest step-children to school, travelling to the hospital where she would conduct rounds and sometimes do consults, arriving at her office at around 10:00 a.m. where she would see patients all day, dictating reports, carrying out research as required in relation to patient needs, and often returning to the hospital on her way home sometime between 6:00 and 6:30 p.m. or later. In the early days she even acted as her own receptionist and accountant. Her work days were demanding and exhausting but she soon developed a successful, thriving medical practice.

[86] I find that the plaintiff, while sympathetic to his disability, tried to encourage the defendant to establish a hypnotherapy practice. She rented a large office space for her specialist practice, clinging to the hope that the defendant might be able to use one of the rooms for a hypnotherapy business. In response to the defendant expressing an interest in obtaining a Ph.D. in hypnotherapy from an institute in Hawaii, the plaintiff paid for his enrolment in the course and purchased the necessary text books. The defendant did not see it through. I find that, at most, the defendant sporadically saw a small handful of hypnotherapy clients, most of whom did not pay and conclude that he was not interested and probably not capable, given the severity of his disability, of pursuing that or any other gainful endeavour.

[87] The defendant testified that he was P’s primary caregiver. He claimed that he very much wanted to develop a hypnotherapy practice but was unable to do so because of the daily demands placed on him in caring for P. It is not possible to give credit to that assertion in the face of the defendant’s own reports on the extent of his disability which he largely confirmed at trial were true. Nor is it consistent with the fact that starting in February 2005, the parties hired the first in a series of caregivers and ultimately sponsored a live-in nanny who arrived from Hong Kong in October 2005. The defendant testified that the nanny was “fantastic” and worked from about 7:00 a.m. until 8:00 p.m. I conclude that these outside paid caregivers (none of whom testified) were required because, contrary to his evidence, the defendant did not take care of P on a daily basis during the plaintiff’s long days of work. He did not even take the Middle Daughter or his Son to school; that responsibility fell to the plaintiff. That is not to say that the defendant did not care for P; I believe that he did involve himself to some extent, but in a far more limited way than he indicated at trial.

[88] The defendant’s eldest three children adored their new little sister. She was like a fresh ray of sunshine in the home. The Eldest Daughter left for university within weeks of P's birth. I accept that the two other children pitched in and helped care for P as best they could given their ages and the fact that they attended school full-time.

[89] Though the plaintiff’s medical practice was burgeoning, her personal life was deeply unhappy. She testified that she felt she was forever walking on egg shells around her husband and made constant efforts to placate him in order to keep the peace. Still believing that he had connections with police and other organizations, she was too afraid to speak to anyone, even the police, about the defendant's poor treatment of her.

[90] In 2005, the plaintiff’s father paid for the plaintiff and P to take a trip to New Zealand to visit the plaintiff’s adored grandmother whose health was failing. It was a happy and positive experience for the both of them.

[91] In November 2005, the plaintiff was scheduled to attend a medical conference in Vancouver. It was often the case that her husband would insist on accompanying her to such events, however, this was one of the rare times that he did not do so. The plaintiff says that she took that opportunity to arrange to meet her father in Horseshoe Bay where she disclosed some of the truth of the nature of her dysfunctional relationship with the defendant. The father testified that he was concerned that his daughter could be at risk to be harmed. He suggested that they go see a family law lawyer for advice in order to determine what steps she ought to safely take, but that she was reluctant to do so. The father subsequently consulted a lawyer on his own. He testified that he was not sure what further action he ought to take at that time because, like his daughter, he believed the defendant’s claims of being connected with police and other authorities.

(h) Defendant’s Firearm Licence and Pilot Permit

[92] Sometime in January 2006, the defendant either completed a gun safety course or enrolled in one and also applied for a firearm licence. The plaintiff was signed as a reference on his application form. She testified that she felt it would be unsafe for her to refuse to do so. The plaintiff’s father also gave his name as a reference believing the defendant’s representation that he needed it to hunt deer.

[93] The defendant testified that in March 2007, he purchased two semi-automatic handguns and a pump action rifle. The defendant was proud of his marksmanship. He placed a bulls-eye target on the refrigerator in the Matrimonial Property. The plaintiff interpreted this as a strategy by the defendant to keep her in line. The defendant’s evidence, which lacked logic and I reject, was that he had posted the target on the fridge because he had been experiencing tremors in his hand and was “trying to encourage [himself] to be positive”. The plaintiff insists that in addition to the licensed weapons he acquired, the defendant had at least one unlicensed weapon and kept bullets in his bedside table. She testified that in 2006, he proudly made a pipe bomb, which he kept hidden in the garage.

[94] Page one of his firearm licence application warned in upper case and bold letters that it is an offence under the legislation to knowingly make a false or misleading statement when applying for the licence. Among other things, the application form asks whether in the past five years the applicant has threatened or attempted suicide or had been diagnosed or treated by a medical practitioner for depression, alcohol, drug or substance abuse, behavioural problems, or emotional problems. The defendant answered “no” to all. When confronted in cross-examination with the application form and his self-descriptions contained in the disability forms, the defendant tried to rationalize the inconsistency by stating that he had only been depressed because of his physical pain and, while he was aware that his psychiatrist had diagnosed him with major depressive disorder, he had not agreed with that diagnosis. He unsuccessfully attempted to further parse it out by stating that depression was merely one of his “symptoms” arising from his physical situation; that he was “just depressed about my situation”; and that he did not believe that he had a “depression disease”. For those muddled reasons, he said he believed that his answer “no” was accurate. The defendant’s purported explanation demonstrated a readiness to justify his clearly improper actions with implausible evidence. This trait came to define a considerable portion of his evidence on cross-examination. It also revealed that the defendant did not find it troubling to complete the form falsely where it suited his convenience to do so, even in the face of the bolded warning which he acknowledged he read.

[95] The defendant had followed a similarly misleading approach in filling out his Transport Canada medical declaration in August 2005, in support of the issuance to him of an ultra light student pilot permit. In that declaration, the defendant was required to declare that he had never suffered from a long list of conditions, including significant head injury, severe headaches or migraine, and any other physical or mental disability. He declared that he had not suffered from any such conditions even though, by his own admission in his disability claim forms, he was barely able to walk or drive and was severely disabled. When pressed in cross-examination the defendant defiantly refused to admit that any part of his declaration was inaccurate or misleading and testified that he would stand by it today. He attempted to justify the untruthful manner in which he completed the medical declaration by emphasizing that it was only in respect of a permit to operate a small ultra light plane, conceding that he would have answered it differently (presumably honestly) if he had been applying to fly a 747 aircraft.

(i) March 11, 2006

[96] The plaintiff somehow managed to squirrel away between approximately $6,000 - $10,000 without the defendant's knowledge. In or around February 2006, using the internet, she put a modest down payment in respect of the purchase of a small and inexpensive apartment in Cairo, Egypt.

[97] The breaking point in the relationship came on March 11, 2006. It was triggered by an off-handed remark about the plaintiff’s interest in or purchase of an apartment made to the defendant by a woman who worked at the local bank. It was a Saturday and the plaintiff was at home. According to the plaintiff, when the defendant arrived home he immediately confronted her with what he had heard and flew into an unbridled rage. She claims that he repeatedly threatened “I am going to break you ‘til you kill yourself”. She said that she was more terrified than ever before. In an attempt to calm him as he towered over her, the plaintiff told the defendant that she had purchased the apartment as a surprise for her father, even though that was not the case. She says that she just kept with that story when the police arrived because she continued to believe that the defendant and the local police chief had some kind of personal friendship or connection. The plaintiff testified that she had no actual intention to move to Cairo, but by that stage had become desperate to put something away as security for her future. I find that the plaintiff had told her parents about the apartment and had encouraged her mother to take a look at it during an organized trip to Egypt which, coincidentally, the plaintiff’s mother was enjoying that very week in March.

[98] The plaintiff had already agreed to collect the Middle Daughter from her job at the local pizza parlour that afternoon. While en route to do so, she received a call to carry out a consult at the hospital. While the Middle Daughter was in the car, the plaintiff telephoned her father. The Middle Daughter testified that she overheard her step-mother place the call and tell her father that she was worried the defendant was going to hire a hit man to kill them all. This daughter testified further that she did not register much of a reaction to what she was hearing because she did not believe the plaintiff's claim and so it did not worry her. The plaintiff returned home to collect P and the Middle Daughter agreed to go along to take care of P while the plaintiff conducted the consult. It is notable that the plaintiff was expected to take P with her to perform the consult and that it would fall on her shoulders to make arrangements for the care of P while she did her work.

[99] According to the plaintiff, after she dutifully carried out her consult at the hospital and returned home, the defendant was waiting for her and continued his enraged rant. The plaintiff testified that she began to feel a deep sense of dread and fear building inside her. She believed that she would be dead if she stayed that night and felt that she had no option but to call the police hoping that they would take her and P to safety. She placed a call to 911.

[100] The Middle Daughter’s evidence was that the confrontation between the parties occurred much later in the evening. She testified that she and the plaintiff returned from the hospital around 7:00 p.m. that evening and the plaintiff then announced she was tired and went to lay down with P. The daughter said that a few hours later her father calmly tried to speak to the plaintiff about the Cairo apartment. She testified that the plaintiff was belligerent and refused to answer why she had purchased the apartment and screamed at the defendant. But she also testified that her step-mother offered various explanations for wanting to purchase the Cairo apartment.

[101] In her direct evidence, the daughter described her father as keeping his cool and depicted the plaintiff as having lost control and screaming and crying. In cross-examination, however, she agreed that her father was also upset and agitated.

[102] The Middle Daughter also testified that during the exchange between the parties, the plaintiff handed over her cellular telephone and asked her to call the police if things “got out of hand”. The daughter says that she refused to do so and handed the phone back to her step-mother. The Middle Daughter recalled that the plaintiff telephoned the police and that the defendant disconnected the call.

[103] The Middle Daughter does not recall her father threatening to “break the plaintiff ‘til she killed herself” or words to that effect. However, she does remember the plaintiff complaining that she did not feel safe and that she felt pressure from others that they wanted her to kill herself.

[104] The Middle Daughter’s evidence about the plaintiff having a sleep after their return from the hospital is not consistent with the evidence of the plaintiff or of the police as it concerns timing. The police were contacted by a hang-up 911 call shortly after 7:00 p.m. and arrived at the scene at about 7:26 p.m.

[105] The defendant’s evidence is that while standing in a line-up at the grocery store, a woman he knew mentioned having seen the plaintiff doing some kind of transaction at the bank involving the sum of $6,000. The defendant said that he thought nothing of it. At one point he testified that the next day, as he was fixing the dryer, he asked the plaintiff about the $6,000. He says that she went pale, then red, and then appeared panicky. She told him that she had put a down payment on an apartment in Cairo, which she had intended to be a surprise for him. He said that later she changed her story and claimed to have wanted to purchase the apartment for her father. The defendant said he was angry because they were in tight financial circumstances and could not afford the purchase of an apartment in a far away land. In fact, he claimed that they were so broke that P had no diapers or milk. This was another example of the defendant plainly exaggerating his evidence. The notion that he raised the issue of the plaintiff’s expenditure of $6,000 rather nonchalantly the day after hearing about it was not believable in light of the parties’ tight financial circumstances. The defendant significantly modified his version of the event at another point in trial. He testified that the Middle Daughter had warned him that the plaintiff had been talking about taking P away where no one could find her, and that was the subject he broached with the plaintiff on March 11, which in turn, triggered the confrontation and her departure. In either case, the defendant denies that he became enraged that evening. He contends that he insisted that the plaintiff take her medication or he would inform the College that she was not fit to practise medicine. It was not clear in the evidence precisely what medication he was referring to. Having said that, there was evidence that the plaintiff had taken anti-depressants periodically during the marriage.

[106] The defendant testified that the marriage had basically been over for him for years, but he was sticking it out for the sake of P. He testified that on March 11 he told the plaintiff that as far as he was concerned their marriage was over. He agrees that he told her to leave and forbade her to take P. He denied threatening to break her down or to harm her, however, he stated that he felt that she would try to kill herself. The defendant also testified that he told the plaintiff that she was “breaking” and that she would kill her patients. There was no evidence that the plaintiff’s conduct had ever endangered a patient or even posed a remote risk of doing so.

[107] The Eldest Daughter was away at university at the time. Her evidence is that she spoke with her siblings and the plaintiff over the telephone on March 11. Her reaction to the situation purports to be strangely similar to that of her father namely, that she told the plaintiff she could do as she pleased but forbade her to take P away.

[108] The plaintiff’s father was very disturbed by his daughter’s call for help. He recalls that she told him that she was afraid she would “get a bullet in her head”. The father was at his cabin outside the lower mainland when he received his daughter’s distressing call. He went to the local police detachment, but it was closed. There was a telephone on the exterior of the police building, which connected him through to another detachment. According to the father, he outlined the situation to the police over the phone and was advised to get his daughter away from where they lived as quickly as he could. He immediately drove to Vancouver where he collected a female friend of the family for support and they headed to the parties’ home.

[109] Constable Ashford was one of the three attending officers dispatched to the residence that evening. When he arrived, the defendant was in his vehicle preparing to leave. The plaintiff was trembling and crying and the children were also crying. The defendant was detained in the back of the police car and was eventually arrested for uttering threats and taken to the station. The officer described him as being very compliant. Constable Ashford remained at the home for about an hour. In his view, the plaintiff was anxious and upset and appeared genuinely frightened. She told the officers that her husband had threatened to “break her down” and would not stop until she killed herself. She stated that he had told her that she could leave the home but had forbidden that she take P and stated that she was not prepared to leave her daughter behind. The plaintiff also reported that the defendant had threatened, as he frequently did, that he would tell the College that she was unfit to practice medicine if she did leave with P.

[110] At the plaintiff’s insistence the police searched the home for weapons. They located only an air pistol and ammunition and a ceremonial sword, which they seized. A representative from R.C.M.P. victim services attended the home that evening. Constable Ashford testified that he learned from that representative that there was no safe house available for the plaintiff in the area. He stated that he would suggest that the defendant be detained until after the first ferry departed the coastal community the next morning. The victim services representative put the plaintiff in touch with some transition houses in the lower mainland area. The plaintiff spoke to them over the telephone. She had expected that her involvement would be on a virtually anonymous basis, and was therefore surprised at the amount of personal information that they asked her to relay. The plaintiff testified that she became especially alarmed when one person to whom she spoke told her where the safe house was actually located. Based on her discussions, the plaintiff believed that it would not be difficult for the defendant to track her down and therefore felt it would not be safe for her and P to stay in any of those facilities.

[111] The victim services representative stayed at the home for a number of hours that evening while the plaintiff and her father went to her office to gather things that she needed. With her father’s help, the plaintiff collected her computer, professional certificates and other papers from her office. She testified that she and her father discussed possible courses of action and were not able to come up with many. They identified one option as the plaintiff and P travelling to New Zealand to stay with one or more members of the plaintiff’s extended family. Another option was to travel to Nova Scotia to stay with the father’s longstanding engineering friend. While at the plaintiff’s office, her father telephoned that friend to discuss the prospect and concluded it would not be a preferred course of action. The plaintiff and her father decided that the New Zealand option was the best one. The father, the friend who had accompanied him, the plaintiff and P left the area on the first ferry on the morning of March 12. The plaintiff’s father drove his daughter and grand-daughter directly to the airport. He gave the plaintiff all the cash he had on hand and bid good-bye. Using her New Zealand passport, the plaintiff and P travelled to New Zealand via Hong Kong.

[112] The defendant was released by the police in the early morning of March 12. It quickly became apparent to him that the plaintiff and P had left the area. He had no information about their whereabouts. Quite understandably he grew very concerned. His three other children were also distraught.

(j) Events after March 11

[113] On March 15, 2006, the defendant obtained an exparte Provincial Court order granting him sole custody of P. The order also stipulated that neither party was to remove P from British Columbia.

[114] The defendant was tenacious in his quest to locate P. With the assistance of his three eldest children, he created a flyer alerting readers to the abduction of P and distributed it throughout the lower mainland. He believed that the plaintiff’s parents knew of P’s whereabouts and, therefore, “put them under surveillance”. He and his Son, then aged 14, staked out the parents’ home in their parked vehicle, and watched it “day and night” using binoculars. The defendant also surveilled the parents’ recreational property. When the opportunity presented itself, he instructed the Son to rummage through the parents’ garbage. The defendant telephoned the father repeatedly, sent him accusatory e-mails and interrogated a mutual acquaintance who testified that he felt intimidated and threatened by the defendant’s demeanour and statements. I accept the evidence of the plaintiff’s father that the eldest children also telephoned him and spoke aggressively about their right to have P returned. The defendant also wrote to Transport Canada to advise that the plaintiff’s father had previously experienced a heart problem, which he may not have disclosed and that could impact negatively on his pilot’s licence. The plaintiff’s father testified that his own cardiologist had told him it was medically safe for him to fly after he had recuperated from his heart attack.

[115] The plaintiff’s father did know that the plaintiff and P had fled to New Zealand and did not tell the police of their whereabouts. The plaintiff’s father testified that he very deliberately did not receive any details of the goings on while his daughter was living in New Zealand and did not communicate with her during that time. He admitted that he had been untruthful in failing to tell the police that his daughter and P had flown to New Zealand. I find that he did so based on his genuinely held belief that his daughter was in danger and that revealing where she was could compromise her safety. For those reasons he was not forthright about this point with the police. I have taken this into account in assessing the credibility of the plaintiff’s father and have concluded that his less than truthful exchange with the police about his daughter’s whereabouts did not serve to impugn his credibility at trial. I found him to be a credible and reliable witness.

[116] On March 20, 2006, the defendant contacted the College stating that the plaintiff was bipolar and was hallucinating and “fabricating”. In a subsequent letter, he informed the College of the plaintiff’s consultation with Dr. S. many years earlier and reiterated that the plaintiff suffered from bipolar disorder and paranoia. At one point in trial, the defendant confirmed that he believed that what he told the College was true. The defendant notified the police and others such as the physician who had instructed the plaintiff while she was a resident, that the plaintiff was bipolar and used that as the main reason for his professed concern about P’s safety. Dr. M testified that she considered the defendant’s allegations to be “over the top” and that based on her close contact with the plaintiff over a four year period, the defendant’s assertions about her mental instability were hard to believe. She testified that she had seen no evidence of any bipolar disorder or any other psychiatric disorder during the plaintiff’s years of training as a resident. Dr. M had ample opportunity to observe the plaintiff in a highly stressful work environment over an extended period. I find her evidence about the plaintiff’s mental health compelling.

[117] By the end of the defendant’s cross-examination, he had retreated dramatically from his evidence on this point. He ended up saying that he never did believe that the plaintiff was actually bipolar and, attempting to distance himself from that diagnosis, claimed that he had only described her that way because he was merely parroting what he alleges her father had told him at the so-called intervention meeting in 1999. He testified that he believed that she suffered from some other unspecified mood or personality disorder. The defendant’s about-face on this matter and his purported explanation for it was both astonishing and unbelievable. He had evidently forgotten his testimony to the effect that the plaintiff herself had admitted to him that she was bipolar. This aspect of the defendant’s evidence spoke volumes about his character and credibility.

[118] Except for the testimony of the defendant from which he ultimately resiled, there was no evidence that the plaintiff was ever diagnosed as suffering from a bipolar disorder. I conclude that the defendant never believed his wife was bipolar and that after March 11, 2006, he borrowed the diagnosis pertaining to the plaintiff’s sister and applied it to the plaintiff as part of his deliberate campaign to defame her professionally, to discredit her in the eyes of the police, to punish her for her actions, to deflect blame from him for the events leading up to and on March 11, 2006, and as a means of promoting an unfounded notion that P was at risk when in the plaintiff’s care.

[119] Acting pursuant to the power of attorney given by the plaintiff, the defendant transferred her van to himself and then transferred it to his friend, Mr. A. The explanation for the transfer offered by Mr. A. and by the defendant were inconsistent and I reject both of them.

[120] In early May 2006, the Eldest Daughter provided a statement to the police concerning what she claimed was the plaintiff’s threat to poison her. The defendant drove his daughter to the police station to give her statement but was not present when she was interviewed. The Eldest Daughter claimed that years previously, while she and the plaintiff were watching a crime shown on television, the plaintiff mentioned that an easy way to “get rid of someone” was to poison them with potassium. The Eldest Daughter testified that at the time she asked her step-mother whether an autopsy would reveal the cause of death and the plaintiff told her that by the time the autopsy was carried out, the potassium would have dissipated and the victim would have appeared to have died of natural causes. At some subsequent date, which was never clarified in the evidence, the Eldest Daughter claims to have located a printout in the plaintiff’s office about phosphate potassium and sodium with handwritten notations that purported to calculate the amount required to harm or kill an adult weighing 50 kilograms, together with a copy of the front and back of this daughter’s driver’s licence showing her weight at 50 kilograms.

[121] The Eldest Daughter testified that she did not tell anyone about the threat at the time even though she insists that she lived in fear of her life thereafter. Yet she agreed that after this alleged threat had occurred, she and the plaintiff continued to interact regularly and even travelled back east together to look at universities for the daughter’s possible enrolment. In cross-examination, the Eldest Daughter agreed that she did not think the local police were giving the search for P a sufficiently high priority. She was so displeased with their conduct that she inquired with authorities in Alberta to see whether they could be investigated. She testified that she decided to give her statement to the police in order to “fuel the fire”, by which she meant to better inform the police of the kind of person the plaintiff truly was so that they, in turn, would understand the urgency of the need to locate P. She also candidly admitted in cross-examination that she tended to exaggerate things. The Eldest Daughter’s evidence on this matter was not worthy of belief. I was left with the impression that at the urging of her father, she had fabricated this story solely for the purpose of intensifying the police investigation into the whereabouts of P. The police did not pursue an investigation of her claim and charges against the plaintiff were never laid.

[122] At one point the defendant testified that he dispatched a friend to look for the plaintiff and P at the apartment in Cairo. However, later in his cross-examination, he explained that he knew the plaintiff would never go to Cairo because she knew that he was aware of the existence of the apartment.

[123] Sometime in June 2006, the defendant or the Son found an e-mail of interest in the plaintiff’s parents’ trash. It was addressed to the plaintiff’s mother from Aunt R and indicated that the plaintiff and P were in New Zealand. The defendant testified it was a huge relief to learn that P was alive. He testified that when he learned of P’s whereabouts, he felt that all his pain was leaving him and that “the chains were breaking off” as though “a miracle had happened”. Thereafter, he took steps under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction for the return of P.

[124] On June 29, 2006, the plaintiff was charged with parental abduction under the Criminal Code.

[125] Starting around the end of March 2006, the defendant began repeated attempts to reach the plaintiff by e-mail. He did not know then that each time the plaintiff received an e-mail from him, she would forward it to her Aunt R without reading it on the understanding that Aunt R would tell her the contents only if they raised a matter of urgency. The plaintiff testified that she decided not to read the defendant’s e-mails because she knew that the tone would be unpleasant and threatening and she did not feel strong enough to subject herself to them. She did not respond to any of the defendant’s e-mails.

[126] Some of the e-mails appear to originate from the plaintiff’s previous e-mail address; however, she denies authoring them or having used that address to send them to herself. The evidence satisfies me that the defendant was the author of all of the e-mails in evidence including those that purport to be sent from an e-mail address at one time belonging to the plaintiff. I find that the defendant went so far as to create a false e-mail address for the plaintiff’s father and sent an e-mail to the plaintiff posing as her father in the hopes of engaging her in communication. This was another illustration of the defendant’s perception that he was entitled to transgress appropriate boundaries and distort reality for the greater cause of locating his daughter.

[127] In many of his e-mails, the defendant professed his love for the plaintiff and spoke of his willingness to forgive her. At trial, the defendant admitted that was merely a ploy to get the plaintiff to return P as he had not loved the plaintiff for some time. He often implored her to return with P and thereby avert criminal charges and possible imprisonment. He often expressed anger at the plaintiff and in reference to her parents, especially her father, whom he believed were acting in a complicit manner. He exaggerated that the FBI and Interpol were all involved in the case and threatened that her parents would be criminally charged. He likewise overstated that there were three special officers working in Egypt on the “apartment case”. He informed her that she had been charged with “child negligence (25 witnesses), threat to kill (you will find details in court) and child abuse. Your medical history is out.” In later e-mails, the defendant told the plaintiff that he had informed the organization of Doctors without Borders and the College of her actions and of the fact that she was mentally unfit. He sternly warned her of the legal consequences that he believed she was creating for herself as a result of taking P.

[128] Much of the content of the defendant’s series of e-mails does not amount to more than the writings of a deeply distraught parent. However, there were components of the e-mails that extended well beyond the plea of a desperate parent for the return of his daughter, and contained a menacing undercurrent, especially when evaluated in the context of the parties’ relationship. For example, early on the defendant referred to the state of affairs as a “war” and warned that if the plaintiff chose war he would “not stop till total destruction… I’ll never give up you know me”. He cautioned the plaintiff that there was “no where to hide”. He repeatedly accused the plaintiff of being paranoid and mentally unstable and accused her of cheating on him with another man.

[129] At trial, the defendant disavowed any belief of or involvement in the concept of remote viewing and dismissed it as a supernatural nonsense that was featured in a television show that he and the plaintiff had seen. He suggested that the plaintiff’s belief in the existence of such a power was further support of her fractured mental condition. Yet, in two of his e-mails he very explicitly referred to remove viewing. In his e-mail dated May 23, 2006, he stated, “Remember I do have biggest tools in the world hypnosis and remote viewing”. In another e-mail he wrote, “You should know about remote viewers: I recorded one session on the tape and I will show it to you when they bring you back here and you will be shocked to see how accurate they are. Is there anywhere to hide?” In cross-examination the defendant was confronted with his evidence at his examination for discovery where he, in effect, acknowledged his remote viewing ability. He denied having answered that way and demanded to scrutinize a copy of the “tape” of the discovery so that he could verify its accuracy.

[130] Some of the more overtly threatening communications expressed in the defendant’s e-mails include the following:

I want to quote from a movie called “DEVIL’S ADVOCATE”: devil says to the boy: “NO MATTER HOW GOOD YOU ARE, DON’T EVER LET THEM SEE YOU COMING. THAT’S GAFFE MY FRIEND…and I am telling you: WE DON’T LET YOU SEE WHEN WE ARE COMING…that is Gaffe”.

Another threatening remark appeared in his e-mail dated August 10, 2006 where the defendant speaks of P and then says:

Enjoy these moments with her as much you can. Because you are going down…Soon you will understand what it mean [hell]. Do not ever underestimate me. You made your choice to live and die in disgrace and be the biggest cause of humiliation for yourself and everyone.

Another sample can be found in his e-mail referenced, “Silence”, sent August 15, 2006:

There is an old saying…danger is hidden in silence. Look, eagles dive very silently to catch a bird. Tigers move quietly to hunt and lions, too. In military they teach you to be scared when the other side is silent. They are cooking something. Life is all about learning, and sometimes it’s about learning the hard way. Depends on your choices.

[131] The defendant sent these particular e-mails at a time where he was fully aware that the plaintiff and P were residing in New Zealand.

[132] Like his Eldest Daughter, the defendant believed that the police were dragging their feet and not pursuing the case with the necessary level of priority and vigour. He believed that the R.C.M.P. victim services representative who had attended the home on March 11 knew that the plaintiff would be leaving the country and actually knew where P was.

[133] The defendant testified that he hired a private investigator in New Zealand, by the name of Hector, to find out where the plaintiff and P were and “what was going on”. He said that Hector informed him that the judge assigned to the Hague Convention proceeding in New Zealand had been a top member of the “Steiner cult”. The defendant felt strongly that the judge was therefore in a conflict of interest. He says that Hector informed him about one week before a scheduled court date in New Zealand that a different judge had been assigned to the matter. He seemed to suggest that this new judge was particularly stern and that because the plaintiff had lied to New Zealand immigration, she would be given no choice but to return to Canada and that this lead to her return. The defendant either did not have an accurate understanding of the events that facilitated the return of the plaintiff and P to British Columbia (as explained below) or refused to acknowledge them.

[134] The defendant also spoke about the fact that he was prepared to retain a company in Europe, which employed retired British special services agents and CIA operatives, to fly a private jet to New Zealand and “recover” P if the proceedings in New Zealand did not “go the right way”. He understood that the operation would cost him about $100,000. He clearly had no money of his own to cover such an expense and testified that friends would loan or give him the necessary funds. He said that it would take “45 seconds” to get P into the private jet. He testified that “one way or the other” he would bring P home. It is difficult to know if the defendant appreciated how implausible his evidence sounded.

[135] At various times during trial the defendant testified that his depression had eased up or had essentially cleared up altogether. However, that is not what he was reporting to his psychiatrist or his disability insurer. In his self-report to the insurer prepared on January 25, 2007, the defendant noted that he had experienced no changes in his condition since his last report in 2005. In cross-examination he agreed that was the case. The defendant’s psychiatrist also completed the accompanying physician’s form. In it, the psychiatrist noted that the defendant’s progress had retrogressed. At trial, the defendant agreed that he was getting worse physically. The defendant had also completed forms in support of an application to receive Canada Pension Plan disability benefits in which he recorded complaints along the same lines of those described in the forms he completed in support of his other long-term disability benefits. His entitlement to CPP disability benefits was approved.

(k) Life in New Zealand

[136] The plaintiff has an extensive extended family support system in New Zealand. Upon the plaintiff’s arrival in March 2006, her paternal Aunt R found her accommodation and quickly put her in touch with a lawyer experienced in the Hague Convention protocol. With the help and support of her Aunt R and other family members, the plaintiff found herself and P a family doctor and enrolled P in an early childhood education program. Eventually, the plaintiff took a part-time job at a coffee house. Shortly after arriving in New Zealand, the plaintiff sought psychological counselling from Dr. Ratcliffe. Dr. Ratcliffe’s notes were received and referred to by the medical experts called by the plaintiff as well as by the section 15 investigator. However, for the purposes of this trial, those notes are hearsay and not admissible for their truth.

[137] Mr. PM testified on behalf of the plaintiff. He was educated in law but did not practice as a lawyer, opting instead for a career in business in New Zealand. The spouse of the plaintiff’s Aunt R is a long time friend of Mr. PM and is a prominent lawyer in Auckland. Mr. PM explained that Aunt R and her spouse had planned to testify at this trial, however, the trial date was adjourned to a date where the spouse would be on a sabbatical which had been years in the planning, and Aunt R was also committed to be elsewhere.

[138] Mr. PM testified that as soon as the plaintiff and P arrived in New Zealand, Aunt R established a social and support network for them. She invited Mr. PM to be part of that network. He testified that he and the plaintiff got on easily and so he visited her and P frequently. They took walks, shared cups of tea and engaged in other pleasant and casual socializing. He testified that P was always at the focus of the plaintiff’s attention. He observed that the plaintiff took her daughter to parks, pushed her on the swings, ensured that she interacted with other children, played with her, and read to her.

[139] Mr. PM testified that other members of the support network included other relatives and friends of Aunt R and her spouse. He explained that many of those individuals, including Aunt R, owned beach front properties which the plaintiff was welcome to visit and enjoyed with P on many occasions. He testified that the support group gathered furnishings, books, DVD’s and the like for the plaintiff and P to help them establish a cosy little home. In around September 2006, the plaintiff and P moved into a lovely view home owned by the plaintiff’s cousin who is a medical specialist at Auckland Hospital. Mr. PM confirmed that the support to P and the plaintiff would continue were they to return to New Zealand.

[140] Mr. PM explained that in New Zealand the school holidays are quite extended. The winter holiday begins one to two weeks prior to Christmas and runs until the first week of February.

[141] Mr. PM was not cross-examined by the defendant’s counsel. He was a credible witness. I accept his evidence, which I found to be consistent with the plaintiff’s testimony, which I also accept, about the pleasant and nurturing time she and P spent together while in New Zealand.

(l) P’s Return to British Columbia

[142] In January 2007, Crown counsel stayed the abduction charges against the plaintiff and vacated the arrest warrant. On January 22, 2007, the plaintiff returned to Canada to address the issue of the future custody and residency of P. Two days later she obtained an order from the Provincial Court allowing her to provide the primary residence for P until March 14, 2007, at which time a further application would be made. During that timeframe, the defendant was allowed access to Pm, which gradually worked up to access from mid-day Thursday until 4:15 p.m. Sunday. That arrangement was extended until April 23, 2007 by further court order. In both of those orders the collection and delivery of P was facilitated through a third party paid for entirely by the plaintiff. By the close of trial those expenses had exceeded $7,600. On April 23, 2007, when it appeared as though the trial would proceed that July, the parties were awarded interim joint custody of P without prejudice to their respective rights to seek sole custody at trial and the defendant’s access regime was undisturbed. Counsel for the parties also established a communication protocol through a shared book, which eliminated the need for the parties to communicate about P with the objective that it would minimize the potential for conflict.

[143] Since returning to British Columbia in January 2007, the plaintiff and P have participated in several activities at the local community centre, including group story time and parent and tot swimming. She also enrolled P in an early childhood development program and spends considerable time with her from Sunday to Thursday. Her parents see P regularly and I infer that their involvement in her life is positive. The plaintiff has not sought employment pending the outcome of this trial. She has relied on the generosity of her parents. She testified, and I accept, that it would be next to impossible for her to work as a specialist from Thursday to Sunday while P is with her father. The plaintiff stated that she did not wish to be working in a hospital while awaiting the outcome of this trial as she believes that the defendant would find her. He has not been told where the plaintiff is living in the lower mainland.

[144] The plaintiff testified that, if she chooses to do so, she is able to obtain a licence to practice medicine in British Columbia, but believes that the defendant did damage to her reputation in his dealings with the College, and she feels there is no guarantee that he would not try it again were she to practise medicine here. She plans to become qualified in New Zealand to work part-time as a senior registrar, which is equivalent to a medical resident, or as a consulting internal specialist. She understands that she would earn in the range of $70,000 - $80,000 in the former job. She would like to work 3 days per week, but is not yet clear whether this will be financially possible in the short term. The plaintiff testified that while in New Zealand she and P felt surrounded by healthy and loving support. She wishes to live there with P. She maintains that she still does not feel safe when in proximity to the defendant.

[145] The defendant acknowledges that P loves the plaintiff. However, he testified that he feels that P will be mentally and physically abused if she stays with the plaintiff. In terms of his activities with P since her return, the defendant says they go on walks and look at animals and partake in other activities. He recalled taking her to a new pool but she did not wish to swim.

[146] The defendant gave evidence to the effect that after P’s return, she demonstrated symptoms of severe separation anxiety. He gave examples of her trying to hide when the phone rang or when someone knocked at the door. He also said that she did not like to travel. He claims that P did not enjoy the daycare she attended in New Zealand and that she asked the defendant to teach her, rather than her having to attend daycare here. Although the defendant expressed these worries and stated that P needed “to work with a counsellor”, he had clearly done nothing about arranging for her to see a doctor or counsellor to address those concerns.

[147] The plaintiff did not report such behaviours on the part of P, and nor did the third parties who transported P every week to facilitate access. Indeed, one of those third parties, who was called as part of the defendant’s case, credibly testified that P was a joyful, vivacious child who was full of love, and showed no evidence of anxiety. I do not find the defendant’s assertions credible.

[148] The defendant is unforgiving of the involvement in the events of March 11 and 12 and thereafter, on the part of the plaintiff’s father. He explained that he does not want the father to be in close contact with P. He did not allege that there were any negative features to the relationship between P and her grandfather nor explain why prohibiting that relationship could possibly be in the best interests of P. I find the defendant is prepared to terminate all contact between P and the plaintiff’s parents as a means of punishing them for their complicity in helping the plaintiff take P to New Zealand.

[149] The Eldest Daughter is approaching the age of 22 and has completed two years of post-secondary education. She currently lives in Vancouver and works in marketing and public relations in the movie industry. She testified that she has future plans to attend journalism school in Toronto or finish her undergraduate degree and then perhaps apply to law school. As yet, she has not taken any concrete steps in pursuit of either goal.

[150] The Eldest Daughter accused the plaintiff of being very manipulative. She stated that the plaintiff would weave elaborate lies about her aimed at deprecating the Eldest Daughter in the eyes of her father. She referred to her as “my disease”. The Eldest Daughter shared her father’s view that the plaintiff’s sister seemed relatively normal and “okay” to her. She recalled also that the plaintiff had on occasion expressed “paranoid thoughts” to the effect that she believed the defendant was controlling her. She claimed that the plaintiff confided that she wished to live elsewhere and, at one time, even mentioned moving to New Zealand. The Eldest Daughter also gave implausible accounts of P sobbing and begging her not to let “them” take P away, and indicating that she, a little 3 year old girl, wanted to speak to the Judge about this case.

[151] The Middle Daughter graduated high school in June 2007. She turned nineteen this month. She moved away from home to live with her older sister in the lower mainland. The Middle Daughter testified that she had not been employed for several months after high school but she recently got a job in retail sales and planned to save money and enrol at SFU next year. She confirmed that after the death of her mother, her older sister assumed the role of mother in the household. She stated that the children were very close and were not at all happy about the plaintiff moving into their home. The Middle Daughter testified that the plaintiff’s personality changed radically after the marriage. She says that the plaintiff began to suffer extreme mood swings and would change from being happy to being cruel and sobbing inexplicably. She said she had many traumatizing memories of the plaintiff which she chooses not to remember. The Middle Daughter testified that the plaintiff acted more like a friend than a mother and tried to discipline the children around housekeeping issues. She felt it acceptable to ignore the plaintiff’s directions to help out around the house, but acknowledged she would carry out chores assigned by her sister.

[152] The evidence supports a finding that the defendant empowered his children by his first marriage to disregard the plaintiff’s attempts to parent them.

[153] Both daughters were critical of the plaintiff as a mother to P stating that she lacked a “maternal instinct”. The daughters testified that the plaintiff slept a lot, did not appear to be very interactive with P and seemed desensitized to P’s needs. They echoed their father’s comments about P being in danger when in the care of the plaintiff, but, like him, offered virtually nothing in the way of specific evidence in support of such an extreme assertion. The event that both daughters ultimately identified as the primary incident, involved an occasion where they heard P crying loudly from upstairs. One or both of them went upstairs to investigate and found P screaming on the floor next to the bed where the plaintiff was deeply sleeping. At the same time, the Middle Daughter who, unlike her older sister, was still living at home after P was born, admitted that she also saw good interactions between P and the plaintiff. The Middle Daughter acknowledged that her father was usually at home but did not give evidence about any regular or positive caretaking of P on his part. She testified that at some stage the plaintiff confessed that she had post-partum depression. There was absolutely no independent evidence that the plaintiff ever suffered from that condition.

[154] The Middle Daughter claims that her step-mother told her weeks before March 11, that the defendant had her followed and watched even while she lived in the prairies. The Middle Daughter agreed that while her step-mother was “very convincing” about things at times, she did not believe her about being watched. The Middle Daughter also testified that before March 11, the plaintiff had confessed a desire to leave the defendant and move into her own place with P in a nearby small community.

[155] The Middle Daughter’s understanding of her father’s disability was either very superficial or she deliberately minimized it. She testified that he had sustained a head injury, had chronic body pain and was “depressed for a little while, a long time ago”. She testified that his depression had “passed” and that he was “fully functional”. These observations were incompatible with the defendant’s own observations of his condition at trial and those as recorded in the reports to his insurer.

[156] I find that the defendant has intimately involved his children in this custody dispute and encouraged his eldest daughters to give evidence that was distorted and less than truthful to support his case. I find also that some of the daughters’ evidence concerning past events in 1999 is simply not reliable given the passage of time and their relatively young ages at the time. There was much that they simply did not know about the dynamic between the parties.

[157] Both of the defendant’s eldest daughters were seen by a counsellor with the Ministry of Children and Family Development for a short time during their teen years when the plaintiff was residing in the prairies.

[158] The Eldest Daughter was referred to counselling by one of her friends in December 2003 when she was in grade 12. She insisted that she had not been seeking counselling to discuss her family, but rather to discuss her future after graduation. The Eldest Daughter was highly critical of the accuracy of the counsellor’s notes. Her criticism of the counsellor was personal. She variously described her as a woman in a small town who had not grown up beyond the walls of her little office; as being a bit slow and stated that her notes were mangled, distorted and nearly completely wrong. Yet, when probed in cross-examination, it was evident that she agreed with a great many of the counsellor’s notations. She agreed with the accuracy of notes that indicated that after the death of her mother, she and her siblings were left alone on their own and that she was expected to assume the role of the mother. She also agreed that the notes were correct when they described her as having poor concentration and memory, being distractible, sleeping excessively, having low energy, and experiencing a weight gain in or around December 2003. The referral information describes her as not eating, sleeping, or concentrating in school with a reference that she may have been previously diagnosed with depression at a medical clinic. She agreed that was a fair description of her state at that particular time. On the contact information portion of the notes kept by the Ministry there is an asterisk beside the home telephone number with the direction: “Don’t talk to her dad.” The Eldest Daughter acknowledged that she wanted the fact that she was seeking counselling to be kept quiet from her father. She also agreed with the accuracy at that time, of the note that stated that she and her father’s personalities collided and that she avoided her father and had little respect for him.

[159] The counsellor’s records were notable for the small number of negative issues recorded about the plaintiff. The Eldest Daughter testified that this was due to the fact that she had been told (she did not say by whom) that if she mentioned the plaintiff to the counsellor then any notations made about the plaintiff would automatically be sent to the medical authorities. The explanation was not believable.

[160] In April 2004, the Middle Daughter was referred to the Ministry by a school counsellor because of depression and suicidal ideation. She had attempted suicide months earlier in September 2003 by ingesting an excessive amount of Advil. The Middle Daughter saw the counsellor until mid-July 2004. It was clear that the defendant had no idea that either daughter was seeing a counsellor and like her sister, the Middle Daughter did not want him to know.

[161] In reviewing the notes of their sessions, the Middle Daughter found that her feelings had not been fairly described by the counsellor and in many instances were outright inaccurate. For example, she did not agree that the counsellor’s notations to the effect that she felt abandoned and uncared for by her older sister and her father were accurate. She would neither agree nor disagree with the counsellor’s notation to the effect that she was experiencing a great deal of conflict with her father at that time in her life. However, she did agree that the counsellor got it right in recording that the daughter considered the plaintiff to be an evil step-mother.

[162] The defendant testified that the Son was totally devastated when P left. He says that he has observed many changes in his Son since then. He stated that the Son has growing anger and wants to come to court and play a part in P’s safety. The defendant was worried that if his Son was not permitted to testify at the trial (and he did not), his compressed anger might erupt and stated, “I don’t want him to get a gun and shoot everybody”.

(m) The Plaintiff’s Experts

(i) Dr. Wade

[163] The plaintiff tendered expert evidence from Dr. Allan Wade on the issue of spousal abuse. As part of his assessment, he interviewed the plaintiff on August 1, 2007, and obtained further information concerning the chronology of matters. The information that Dr. Wade had about the defendant came almost entirely from the plaintiff.

[164] Dr. Wade offered a number of useful insights into the dynamic of what he termed as wife assault. He noted that it is unilateral in nature, consisting of violence and abuse by one person against the will and the being of another. He pointed out that it is often wrongly characterized as a fight, argument or relationship problem. Dr. Wade was critical of those characterizations because they suggest that the parties are co-combatants and yet, with rare exceptions, it is one party who is solely responsible for the violence and abuse. He explained that the dynamic is not one of combat between equals, but is violence by one party and resistance on the part of the other.

[165] Dr. Wade stated that those who perpetrate wife assault use specific strategies that are well described in the clinical and research literature. The strategies are functionally specialized to suppress a victim’s ongoing resistance. He cautioned that because violence is concealed and resistance is covert, outsiders, including professionals, can easily reach false conclusions about the perpetrator and the victim. He noted that even when outsiders learn some of the facts about the abuse, they may wrongly conclude that the victim is submissive or acquiescent and is, therefore, a co-accomplice. He stated that the research shows that this ill-founded and deeply prejudicial view of victims is still widely represented in various forms of professional and public discourse.

[166] In his report, Dr. Wade described many but not all forms of what he characterized as the plaintiff’s responses and resistance to what he described was the abuse committed by the defendant. He identified aspects of the plaintiff’s background, which provided a context for understanding her responses. From the influences of her stable Christian home in which she was raised by parents who remain committed to one another in a long-term marriage, Dr. Wade found that the plaintiff developed a strong belief in the permanency of marriage and the often peaceful nature of men. She also developed a strong drive to achieve her professional goal of becoming a physician. He identified the stigma surrounding the bipolar illness of the plaintiff’s younger sister which motivated the plaintiff to isolate herself from colleagues, potential friends and even her sister. Dr. Wade believes that exposure to the philosophy of Rudolf Steiner sheltered the plaintiff, made her naive about so-called mainstream mores including intimate relationships, and made her open to the possibility of paranormal perception such as remote viewing and mind control through hypnosis.

[167] Relying on what the plaintiff told him about the defendant’s conduct, Dr. Wade identified a number of strategies used by the defendant which he classified as classic features of wife assault. Among them was his understanding that the defendant initially built trust with the plaintiff and fostered a sense of safety in the early stages of the relationship and that once the plaintiff appeared committed to the relationship, there was a sudden onset of abusive and threatening behaviour. Other hallmark elements highlighted by Dr. Wade included what had been described to him as the defendant’s attempts to take control of the plaintiff’s behaviour after they started living together. These attempts included controlling her movements and with whom she associated, as well as the defendant’s alleged highly unpredictable behaviour which forced the plaintiff to be constantly alert and carefully manage the smallest aspects of her personal conduct to avoid a confrontation.

[168] Dr. Wade pinpointed isolation as one of the most powerful and, from the point of view of the perpetrator, the most effective strategies. He noted that based on what the plaintiff told him, she was relatively socially isolated and emotionally vulnerable when the defendant pursued her initially, in that her contact with her family was already sporadic, she tended to avoid her sister and had just been rejected by her fiancé. She had no friends to speak of and remained detached from her colleagues from whom she feared negative judgment. He noted that, according to the plaintiff, the defendant monitored her phone calls and made racist comments about Caucasians and other demeaning comments about her family with the result that she distanced herself from them to keep the peace. Dr. Wade noted that perpetrators of wife assault often use racism and misogyny to isolate and debase the victim. As an example, he referred to the plaintiff’s allegation that the defendant told her more than once that her father should get a hit man to kill her mother.

[169] Based on what the plaintiff told him, Dr. Wade considered the following, which he assumed to be true, to be additional hallmarks of wife-abuse: that the defendant threatened the plaintiff on a regular basis and that the threats took many forms including threats to discredit her in the medical profession (a threat he followed through on when she did leave); that he created a climate of fear by boasting about his powerful connections and expertise with weapons and physical violence; and that he claimed to be an expert in surveillance and would be in a position to know all of the plaintiff’s activities no matter where she went. Dr. Wade’s interpretation of the plaintiff’s account of the defendant was that he affronted her dignity and humiliated her sexually. A powerful point made by Dr. Wade is that, in many cases, physical assault is the least harmful form of wife abuse. He was extremely critical of the fact that Dr. S. did not meet alone with the plaintiff during his consultation in December 1999.

[170] Dr. Wade referred to the existence of a large body of evidence that shows that spouse abuse can result in intense and lasting distress in the children.

[171] Based on his interview of the plaintiff and review of collateral material, Dr. Wade formed the opinion that by using a number of widely acknowledged strategies, the defendant entrapped and then physically and psychologically violated the plaintiff over the course of their common law and marital relationship. In his opinion, P faces the risk of being used by the defendant to further violate the plaintiff, and to the extent that might occur, is at risk of psychological abuse with profoundly harmful consequences.

[172] In cross examination, Dr. Wade was questioned extensively about false abuse claims. He stated that he is ever mindful that people fabricate claims of abuse. In his view, the key ingredient in evaluating whether a claim is real is the level of detail given about events and the consistency of responses by the victim to the alleged actions of the perpetrator and whether or not they seem connected. He also considers whether what the victim is reporting is compatible with the features of the pathology reported in the literature. Dr. Wade explained that the level of detail he is looking for is very difficult to manufacture. In his opinion, the plaintiff provided a credible level of detail and her account of the relationship was consistent with the known dynamics of wife assault.

[173] Dr. Wade’s opinion was not challenged in any meaningful way on cross-examination. Many of the underlying facts, assumptions pertaining to the defendant’s conduct which Dr. Wade classified as being emblematic of wife-assault and upon which Dr. Wade based his opinion, were proved to my satisfaction at trial. I conclude that many of the toxic features of wife-assault as described by Dr. Wade were present in the parties’ relationship. I conclude also that the incidents in late 1999 were completely out of character for the plaintiff and were symptomatic of an emotional unravelling and erosion of self-esteem that she experienced in consequence of a confluence of factors including the defendant’s persistent menacing and abusive conduct directed at her and the questionable medications prescribed to her by Dr. S.

(ii) Dr. Jeanette Smith

[174] The plaintiff also filed an expert report of Dr. Jeanette Smith. Dr. Smith has practised psychiatry since 1984 and has been specializing in medicolegal and forensic work for nearly twenty years.

[175] Dr. Smith assessed the plaintiff on May 8, 2007 for the purpose of determining whether she suffers from a major mental illness as alleged by the defendant. She based her opinion on her examination of the plaintiff and certain collateral documentation. A portion of that documentation comprised unidentified excerpts from affidavits sworn by the defendant’s two eldest daughters, an affidavit sworn by the Son and other affidavit material that was not before the court at trial. In reading Dr. Smith’s report in its totality, I find that she referred to the facts that she considered of importance in relation to her opinion. Accordingly, this is not an instance where the court is hampered in its assessment of the value of the expert opinion because it cannot distil the assumptions on which it was based.

[176] In Dr. Smith’s opinion, the plaintiff’s mental state at the present time is quite clearly normal with no evidence of depressive or anxiety symptoms, mood instability, hypomania, mania or psychosis. It is Dr. Smith’s opinion that the plaintiff has never suffered from a major mental illness such as bipolar disorder or schizophrenia and that any depressive or anxiety symptoms she has experienced have been in response to situational stress and have not impacted on her functioning as a physician.

[177] Dr. Smith was a credible and persuasive witness. As did Dr. Wade, she answered questions posed in cross-examination in a balanced and forthright way. There was no indication of any bias on her part, or intention or tendency to advocate the plaintiff’s position. In my view, the validity of her opinions remained unassailed after cross-examination.

[178] Dr. Smith voiced criticism of Dr. S. In her view, the medications that he prescribed for the plaintiff following his consultation would have caused the plaintiff to act as though she were intoxicated. She regarded them as unusual to use as first-line treatment, given that Dr. S. seemed to have arrived at a preliminary diagnosis of social anxiety disorder and a “mood disorder that was not well defined”. The medications he prescribed raised issues in Dr. Smith’s mind about the legitimacy of Dr. S.’s overall assessment of the plaintiff. She also remarked that descriptions of the plaintiff in his notes were not typical of a major depressive disorder or a bipolar disorder.

[179] The defendant testified that the plaintiff had paid for Dr. Smith’s opinion and, therefore, it was obtained by “bribery”. He considered her opinion to be “medical garbage”.

(iii) Dr. Michael Elterman

[180] The plaintiff tendered the opinion of Dr. Elterman, a clinical and forensic psychologist, in response to certain conclusions about her mental stability drawn by the author of the section 15 report. His opinion is discussed below in the context of evaluating the section 15 report.

(n) The Section 15 Report

[181] A section 15 custody and access investigation resulting in an extensive written report spanning 34 pages was undertaken by Dr. Larry Krywaniuk in the period August 17-27, 2007. Dr. Krywaniuk's assessment consisted of interviewing the parties, the defendant’s three eldest children and other family members and acquaintances, visiting the parties’ current homes in the company of P, and reviewing documents, including the defendant’s e-mails, Dr. S.’s notes and letter, Dr. M’s letter, Dr. Smith’s opinion, and excerpts from various affidavits sworn in relation to the Hague Convention proceeding. He also administered history questionnaires and psychological testing to the parties.

[182] There was enormous emphasis in the section 15 report on the mental health of the parties. Dr. Krywaniuk purported to measure the personality and psychological factors of the parties, in part, through the administration of two tests: (i) the Minnesota Multiphasic Personality Inventory-2 (the “MMPI”), and (ii) the Omni-IV Personality Disorder Inventory (the “Omni-IV”).

[183] Dr. Krywaniuk concluded that the test results for the defendant indicated that he had good parenting knowledge although he may be somewhat optimistic about his parenting skills, which Dr. Krywaniuk thought may reflect cultural aspects. He described as a “testament” to the defendant’s parenting skills, the fact that his three older children were all doing well and have no problems in the community. However, Dr. Krywaniuk had not been made aware and was therefore not able to take into account, that both of the daughters had previously sought and received counselling.

[184] Dr. Krywaniuk concluded that other testing of the defendant was generally consistent with his reported medical condition and history of depression, physical injury and mild traumatic brain injury. The validity scales of one test indicated the defendant may have a somewhat naive or defensive approach, which Dr. Krywaniuk concluded called for caution in interpretation and suggested that second language factors may have been at play. The test indicated that the defendant may have expressed his internal distress through physical symptoms but may have limited insight into that connection. Other than that, Dr. Krywaniuk found no indication that the defendant had a significant personality disorder or on-going psychological problems. Specifically, he found no indication of anxiety, cynicism, or anger on the part of the defendant. Using another testing instrument, Dr. Krywaniuk found that the validity scale showed inconsistency in the defendant’s response pattern and, again, offered second language factors as a possible explanation. He concluded that at face value the defendant’s clinical profile fell within normal boundaries.

[185] A test designed to explore variables associated with the potential for child abuse suggested that the defendant approached the task defensively. Dr. Krywaniuk speculated that the reason may be the defendant’s rather significant sense of unhappiness which he thought was probably due to the current situation. The test results of the MMPI also showed that the defendant was experiencing tension, was frequently worried, and experienced a mild level of dyspharia. The defendant reported to Dr. Krywaniuk that he had good memory and concentration skills, which was in direct conflict with the defendant’s description of his symptoms in support of his on-going disability.

[186] The defendant’s profile suggested to Dr. Krywaniuk that he is conventional and conforms to societal standards, but also expresses worries about his physical health consistent with having a psychiatric somatoform disorder. In Dr. Krywaniuk's experience, such a profile is often seen in individuals who have chronic, medical or physical difficulties. In reference to the defendant’s disability, Dr. Krywaniuk understood that the defendant initially presented with severe depression, fatigue, irritability, and other problems. He contrasted this with the defendant’s current psychological state noting that there appeared to be “episodes of distress or depression at least some of which are probably related to his current condition.” Dr. Krywaniuk did not have the benefit of reviewing the documents submitted in support of the defendant’s on-going claim for disability benefits. Consequently, he did not appreciate the current reported extent of the defendant’s persistent depressive disorder and symptoms and the defendant’s own description of the profoundly debilitating impact his condition has on his day to day life.

[187] The plaintiff’s test results indicated to Dr. Krywaniuk that she has very good parenting knowledge and seems quite realistic with regard to P’s characteristics and her abilities as a parent. He noted no indication of potential for child abuse with respect to the plaintiff. However, he found what he described as significant elevations in the testing of the plaintiff’s personality on a scale that reflects hypersensitivity and vigilance to the point of paranoia. He also concluded there were indications of the possibility of an underlying psychotic process or a very long-term “characterological” condition. The plaintiff’s test results suggested to Dr. Krywaniuk that the plaintiff sees the world as very threatening and that she feels misunderstood or unfairly blamed or punished and may be seen as reluctant to admit to the possibility that she has psychological problems. On other testing, Dr. Krywaniuk reported that the plaintiff showed a very high level of suspiciousness and an inability to trust others as well as an expectation she would be mistreated or harmed. He noted that the root of the plaintiff’s suspiciousness and paranoid tendencies could be the result of living in a threatening environment or, on the other hand, could have given rise to her perception that the environment is threatening. Dr. Krywaniuk pointed out that the incidents described by the defendant and his children and the fact that she was seen by Dr. S. in 1999 were supportive of the latter interpretation.

[188] In terms of comparing the test results, Dr. Krywaniuk determined that the plaintiff emerged as the one with more problems. He believed there was a general indication that she is likely to have a personality disorder, although he does not specify the disorder, and found a strong suggestion of underlying psychotic features. Dr. Krywaniuk interpreted the profiles which he obtained relative to the plaintiff as lending some support to the unfavourable picture of her painted by the defendant and his three eldest children. He acknowledged the difficulty in reconciling this very different view of her to those developed by Dr. Smith.

[189] Dr. Krywaniuk found it difficult to understand how the plaintiff would function as well as she did if her story of being brain-washed and having her belief system completely broken down by the defendant were true. He also regards the plaintiff’s escape back east and the shaving of her head as an unusual reaction to an “argument” and suggested it might be seen as a form of self-mutilation to get attention. It was not clear from his report whether Dr. Krywaniuk had been provided with the plaintiff’s account of what had transpired to precipitate her fleeing on that occasion, namely that the defendant had threatened to end her life, and not just their marriage.

[190] It appeared to Dr. Krywaniuk that P enjoyed a good relationship with both of her parents and with other family members. He found that she responded well to her half-siblings and did not show any discomfort in interacting with them. It was clear to Dr. Krywaniuk that all three of P’s half-siblings were very upset and adversely affected by the fact that P had been removed from the home by the plaintiff. Dr. Krywaniuk acknowledged that he was not able to resolve the vast differences in the versions of the background picture given to him by the parties. He did not consider the origins and extent of the parties’ marital difficulties to be particularly germane, except to the extent that they reflected enduring personality characteristics or psychological adjustment factors.

[191] The plaintiff told Dr. Krywaniuk that she was supportive of P’s relationship with her father and that if P moved with her to New Zealand, she would sponsor visits twice per year during school holidays to facilitate P maintaining a relationship with him and her half-siblings. The defendant reported to Dr. Krywaniuk that he had no interest in harming the plaintiff and was keenly aware that she is the mother of P, which he said is regarded as an important figure in his culture. He told Dr. Krywaniuk that he was now indifferent to the plaintiff and no longer loved her, but that he continues to care for her as a human being and hopes that she can get some treatment.

[192] Dr. Krywaniuk acknowledged that this case represents a very complex and difficult situation and created a clear challenge to the assessment process. He recited his perception of the advantages and disadvantages to P living with her mother in New Zealand and with her father in British Columbia. Dr. Krywaniuk reported that the defendant planned to earn income by means such as “the possibility of consulting on an international basis with regard to security issues or perhaps forming an investigative agency” in the coastal community, or “getting involved in the restaurant business”. Dr. Krywaniuk remarked that the defendant had expressed his belief that those options would allow him time to parent P and had contrasted that to the plaintiff’s plans which seemed to contemplate her working on a full-time basis. I found it disconcerting that Dr. Krywaniuk did not acknowledge the patently unrealistic nature of the defendant’s so-called future plans, the complete absence on his part of taking any concrete steps toward achieving any of them, and their incompatibility with his self-described chronic, debilitating disability.

[193] It did not strike Dr. Krywaniuk as immediately obvious that moving to New Zealand would offer P a clear advantage over remaining in Canada. However, he did not address the impact upon P of being separated from the plaintiff if her application were not granted. He noted that P has been travelling back and forth between her parents since January 2007. His belief is that if the plaintiff were to remain in British Columbia, she would probably be in at least an equivalent position with the defendant to have residency of P which would probably allow the parties to share guardianship if not custody. This was a somewhat surprising conclusion given his acknowledgement that it was clear to all concerned that there was no possibility of a convivial relationship between them. It was even more perplexing in light of Dr. Krywaniuk’s suggestion that the plaintiff suffered from an underlying psychological disturbance of some kind. Evidently, he did not regard the plaintiff’s psychological deficit to adversely impact on her parenting capabilities.

[194] The plaintiff took great exception to the conclusions drawn by Dr. Krywaniuk from the results of her psychological testing. She was also critical of his methodology and clinical approach overall. She obtained the opinion of Dr. Elterman, to review and comment on Dr. Krywaniuk’s interpretation of her test results and to conduct his own interview and testing of her.

[195] Dr. Elterman pointed out that Dr. Krywaniuk’s inferences of paranoia and the possibility of an underlying psychotic process or long-term characterological condition on the part of the plaintiff were drawn from the MMPI testing. He stated that where an individual shows an elevation on the paranoia scale of the MMPI, the examiner must consider the surrounding life situation in which the test is being taken. Both he and Dr. Smith noted that the paranoia scale is commonly elevated in custody cases. Dr. Elterman considered the fact that Dr. Krywaniuk did not mention this moderating factor nor interpret his findings in the context of the case, as a flaw in the section 15 report. Dr. Elterman suggested that if the context was taken into account, the inference of paranoia might well be downgraded to mere suspiciousness. He also complained that Dr. Krywaniuk failed to consider whether the plaintiff’s apparent paranoia is a general reaction or is isolated to one individual such as the defendant. In cross-examination, Dr. Krywaniuk basically admitted that the paranoid scale had been elevated on only two of several measures. One of the measures tested whether the plaintiff felt persecuted and that elevation was only modest or very slight. This should have been explicit in the report and not revealed only through a probing cross-examination.

[196] Of more concern to Dr. Elterman, however, was that Dr. Krywaniuk did not integrate his subjective clinical impressions of the plaintiff with the conclusions he drew from interpreting the test results. Dr. Elterman observed that Dr. Krywaniuk does not say that he found the plaintiff psychotic or personality disordered in his clinical impressions and seems to depend exclusively on interpreting the test results for that conclusion. Dr. Smith testified that if an individual is truly paranoid that would likely be revealed in the clinical presentation. She supported Dr. Elterman’s view that elevations of certain traits on MMPI testing do not translate into a diagnosis.

[197] Having previously conducted research into the legitimacy of the Omni-IV test, Dr. Elterman has formed the view that it does not have an established validity and probably should not be used for court purposes. He provided particulars of the perceived deficiencies of that test and described the choice of employing the Omni-IV test in this case as puzzling.

[198] Finally, Dr. Elterman suggested that where testing shows a high level of inconsistency, as was the case here particularly for the defendant, the test is essentially invalid, meaning that it cannot provide an accurate measurement of the client. He questions why Dr. Krywaniuk proceeded to interpret an invalid test.

[199] The plaintiff told Dr. Elterman about attending the Steiner schools, her mother’s struggle with an undiagnosed form of depression, and her younger sister’s bipolar disorder. She reported no abuse as a child or traumatic experiences growing up. The plaintiff described to Dr. Elterman the defendant’s claim that he possessed unusual powers including the ability to observe her no matter where she travelled (remote viewing). She told Dr. Elterman that in retrospect she believes that the defendant wanted to make her afraid to leave him by thinking that he was all powerful, and that the effect it had on her was to make her feel weak and ineffectual. Looking back she said that she can now see that she had no self-esteem when she met the defendant. The plaintiff pointed to the medications prescribed to her by Dr. S. as causing her to have a violent side-effect. She told Dr. Elterman that she had never been psychotic, but had taken anti-depressant medication on and off during the marriage, using it situationally and not currently. She reported no suicide attempts, threats, or ideation.

[200] Dr. Elterman’s impression was the plaintiff had grown up in a very sheltered environment and that even as a medical student and then a qualified physician, she was naive, unsophisticated, gullible, and suggestible. In his opinion, those characteristics made her vulnerable to being easily influenced and believing that another person had irrational powers to monitor and potentially harm her wherever she went. Dr. Elterman found no evidence suggesting a psychotic process or any diagnosable personality disorder of the plaintiff.

[201] Dr. Elterman’s criticisms raise concerns in my mind about the weight to be given to any conclusions reached by Dr. Krywaniuk about the psychological health of the parties. I conclude that it would be unsafe to accept the core opinions expressed by Dr. Krywaniuk in relation to the psychological health of either party. Specifically, I am not prepared to accept his suggestion that the plaintiff suffers from some kind of personality or other psychological disorder. As those conclusions plainly influenced Dr. Krywaniuk’s broader assessment of whether relocation would be in the best interests of P, the court must be most cautious in the treatment of his recommendations about custody.

[202] In my view, Dr. Krywaniuk glossed over the ominous messages expressed by the defendant in various of his e-mails. He did not see anything in the e-mails that indicated a direct threat to harm the plaintiff. However, when taken through a number of the e-mails on cross-examination, Dr. Krywaniuk admitted that some of their contents were menacing and imparted threats to the plaintiff. It is noteworthy that one of the menacing elements was the defendant’s explicit claim to remotely view the plaintiff from afar which were supportive of the plaintiff’s description to Dr. Krywaniuk of the defendant’s controlling behaviour and fantastic claims. The tone and content of certain e-mails ought to have triggered concern and were certainly deserving of greater critical evaluation by Dr. Krywaniuk. It was perplexing that despite acknowledging that some of the e-mails made direct threats to the plaintiff, Dr. Krywaniuk stood by his initial assertion that the e-mails were largely benign and merely reflected an understandable venting by the defendant.

[203] Another matter I found troubling is that Dr. Krywaniuk did not consider it sufficiently relevant to disclose in his report that he was aware of the defendant’s contingency plan to “rescue” P from New Zealand in the event that the court there made an order with which he disagreed. The defendant’s so-called back-up plan which he said he had already put into motion by hiring “Hector” to keep track of the progress of the proceedings in New Zealand, is revealing of a parent who either has a grandiose and distorted notion of his own resources and capability or exposes a man with a frightening disregard for judicial authority and an excessive zeal to ensure that his daughter returns to live with him come what may, or possibly both. Dr. Krywaniuk ought to have commented upon the implications of the defendant’s professed “rescue mission”, including the defendant’s perception that he was entitled to proceed with it, in relation to his assessment of the defendant’s psychological health and in making recommendations concerning the custodial arrangements for P.

[204] A further criticism is that Dr. Krywaniuk did not appear to sufficiently appreciate or direct his mind to the prospect that the kind of dysfunctional dynamic articulated by Dr. Wade in his report and described to him by the plaintiff, might actually be at play.

[205] For a section 15 report to be of assistance to the court, the investigator must be provided with as much of the relevant background as is reasonably possible. The investigator is expected to conduct a balanced and impartial investigation and tailor the report accordingly. I have reservations about Dr. Krywaniuk’s willingness to assess the information that he received from both parties in an even-handed manner. In the end, I was left with the impression that, for reasons unknown, there was an element of partiality in his assessment in favour of the defendant. I give little weight to Dr. Krywaniuk’s conclusions and recommendations.

[206] The defendant’s dishonesty in matters outside the courtroom is troubling. His lack of forthrightness and inclination to distort obvious facts in a manner that he perceived would be of assistance to his case, permeated his testimony at trial. He was obfuscating. His evidence was remarkable in the number of its internal inconsistencies, many on matters of importance, and the implausible explanations offered in respect of them. He repeatedly revealed grandiose notions of his own self-importance and capabilities, and was preoccupied with casting blame for all manner of things, including his own failings, the way of the plaintiff. He was not a credible witness.

III DISCUSSION

(a) Custody and Relocation

[207] The plaintiff seeks sole custody of P and permission to move her to New Zealand. The defendant opposes P’s proposed relocation. He submits that he be awarded sole custody of P or that, alternatively, the plaintiff should remain in British Columbia and they have joint custody.

[208] In terms of case law, the analysis pertaining to the relocation of the principal residence of a child begins and ends with the seminal decision of the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, 134 D.L.R. (4th) 321 [Gordon cited to S.C.R.]

[209] In Gordon, the custodial mother applied to move from Saskatchewan to Australia with her 7 year old daughter against the wishes of the father. The mother was granted permission by the trial judge and had relocated by the time the matter came before the high Court. The trial judge’s decision allowing the move was unanimously upheld by the Supreme Court of Canada, although the reasons were not unanimous and the parameters of access were modified.

[210] Madam Justice McLachlin (as she then was), writing for the majority of the Court in Gordon, stated the following at para. 9:

The principles which govern an application for a variation of an order relating to custody and access are set out in the Divorce Act. The Act directs a two-stage inquiry. First, the party seeking variation must show a material change in the situation of the child. If this is done, the judge must enter into a consideration of the merits and make the order that best reflects the interests of the child in the new circumstances.

[211] At paras. 49-50, McLachlin J. continued with a summary of the principles with respect to mobility applications:

1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[Emphasis in original].

[212] The “best interests” test endorsed by the Court in Gordon requires a full and sensitive inquiry. The inquiry must have regard to all the relevant circumstances relating to the particular child’s needs and the ability of the parents to satisfy those needs: Gordon at para. 49. Because the inquiry is highly individualized, it is recognized that other decided cases are of assistance only on the limited sense of illustrating the application and interplay of the governing principles. (see generally: Lowcay v. Lowcay (2000), 8 R.F.L. (5^th)313, 2000 BCCA 447, and Cousens v. Ruddy, 2002 BCSC 20, 28 R.F.L. (5^th) 255 ).

[213] As stated in Gordon at para. 20, the best interests of the child approach “stands as an eloquent expression of Parliament’s view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake”. The child’s best interest are not merely paramount, they are the only consideration in custody determinations: Gordon at para. 28.

[214] In Gordon, the Court rejected any legal presumption in favour of a custodial parent. That being said, it was careful to expressly acknowledge that the views of the custodial parent are entitled to great respect and most serious consideration.

[215] In Nunweiler v. Nunweiler, 2000 BCCA 300, 186 D.L.R. (4th) 323 [Nunweiler], the Court of Appeal held that the analysis in Gordon is applicable in an initial custody determination. That approach was affirmed in Kaler v. Dhanda, 2002 BCCA 631, 179 B.C.A.C. 1. In Nunweiler, Madam Justice Saunders clarified that the principles set out in Gordon, a custody variation case, would be somewhat modified in the context of an initial custody determination. At paras. 27-28 she said:

While the first stage inquiry (requirement of a material change in circumstances) clearly is not applicable to a case of an initial custody order, the discussion of the second stage determination of custody and access is, in my view, instructive, and the factors enunciated by Madam Justice McLachlin should be considered, with the appropriate modifications.

The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is, I consider, three-fold. First, the decision directs the court to consider the motive for a parent's relocation only in the context of assessing the parent's ability to meet the needs of the child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decision confirms the significance of the instruction, found in s. 16(10), to consider the willingness of a parent to facilitate contact, but notes that this consideration is subordinate to over-all consideration of the best interests of the child. Third, and more broadly, it approaches the issue of a relocation of residence from a perspective of respect for a parent's decision to live and work where he or she chooses, barring an improper motive.

[216] Section 16(8) of the Divorce Act provides that the best interests of a child are determined by reference to his/her condition, needs, means and other circumstances. Parliament has set out two specific directions to provide guidance in determining the best interests of a child. The first direction is found in s. 16(9) of the Divorce Act which states that a judge “shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child”. Accordingly, parental conduct, however meritorious or reprehensible, should not be considered unless it is related to the ability of the parent to meet the needs of the child: Gordon at para. 21. Gordon explicitly forbids the court to take into account a parent’s reasons or motives for moving except in exceptional circumstances, such as where the real reason for the move is to frustrate access, or to promote the alienation of the other parent, or is driven by some other bad faith purpose.

[217] It would seem, however, from surveying a sampling of the post-Gordon case authorities, that the trial courts do on occasion consider a parent’s reason for the move even in plainly unexceptional circumstances. I would suggest that those cases do not represent an outright rejection of the explicit direction given in Gordon, so much as they demonstrate the practical difficulty in disregarding the reasons for the move from the overall assessment of what may be in a child’s best interests, and reveal how often the reasons for the relocation can be bound up in that assessment and therefore be relevant.

[218] Factors related to the move are considered even if the rationale for the move is not. In Woodhouse v. Woodhouse, [1996] O.J. No. 1975, 29 O.R. (3d) 417 (Ont. C.A.) the court indicated that the economic benefits anticipated to flow to the children from the relocation may be relevant. (See also: Larose v. Larose, [2002] B.C.J. No. 1340, 2002 BCCA 366 and Swenson v. Swenson [2006] S.J. No. 247, 2006 SKCA 45). The notion of the potential positive effects on the children resulting from being cared for by a well-functioning and happy parent has also been treated as relevant: Bjornson v. Creighton, [2002] O.J. No. 4364, 32 R.F.L. (5^th) 242 (Ont. C.A.); Orring v. Orring, [2006] B.C.J. No. 2996, 2006 BCCA 523 [Orring].

[219] The second statutory direction is captured in ss. 16(10) and 17(9) of the Divorce Act which establish the principle that a child should have maximum contact with each parent as is consistent with his or her best interests. In Gordon, McLachlin J. remarked that this maximum contact principle is mandatory, but is not absolute: at para. 24.

[220] In the recent decision of Orring, our Court of Appeal made the following instructive observations about the maximum contact principle:

An underlying assumption in Gordon v. Goertz is that the “maximum contact” principle militates against relocation because the proposed move will usually adversely affect the access parent’s ability to see the child, which is contrary to Parliament’s stated intention of promoting maximum contact between the child and both parents. A court is therefore faced with having to balance the benefits of the proposed relocation against the child’s interests in maintaining maximum contact with the access parent and may decide against permitting the move: see Karpodinis v. Kantas (2006), 55 B.C.L.R. (4th) 90, 2006 BCCA 272; leave to appeal to S.C.C. refused (16 November 2006). The maximum contact principle is not an absolute one but it is a mandatory consideration when determining whether a proposed relocation is in the best interests of the child. There are cases where the other principles will outweigh the negative effects of decreased contact with one parent and thus the custodial parent is permitted to move. This Court’s decision in Lowcay v. Lowcay (2000), 8 R.F.L. (5th) 313, 2000 BCCA 447 is an example.

[221] In One v. One, 2000 BCSC 1584, 81 B.C.L.R. (3d) 315, Mr. Justice Burnyeat analyzed a mother’s application to vary a custody order to allow her to take her children in and out of the United States and Mexico for a period of two years. In addition to taking into account the principles articulated in Gordon and Nunweiler, Burnyeat J. also reviewed a number of other cases where there was an issue of whether the children should be moved if access would be made more difficult. He distilled from the surveyed cases, 12 main factors that have been considered in assessing what is in the best interests of the children, at para. 24:

(a) parenting capabilities of and children's relationship with parents and new partners: ...

(b) employment security and prospects of each spouse and, where appropriate, their partner: ...

(d) difficulty of exercising proposed access and quality of proposed access if move is allowed: ...

(e) effect upon children's academic situation: ...

(f) psychological/emotional well-being of children: ...

(g) disruption of children's existing social and community support and routines: ...

(h) desirability of proposed new family unit for children: ...

(i) relative parenting capabilities of either parent and respective ability to discharge their parenting responsibilities: ...

(j) child's relationship with both parents: ...

(k) separation of siblings: ...

(l) retraining/educational opportunities for moving parent: ...

[222] These factors have been applied in a number of other decisions of this Court. Recent examples include: Glase v. Glase, 2008 BCSC 387; Ligget v. Ligget, 2007 BCSC 1301; and P.V. v. D.B., 2007 BCSC 237.

[223] The defendant contends that the plaintiff’s departure with P on March 12 was a pre-meditated act and that she, with her father’s assistance, had hatched the whole plan at an earlier time. The evidence establishes the opposite. There was nothing calculated about the plaintiff’s conduct on March 11 or 12,2006; it was a genuinely spontaneous response by her to the dire surrounding circumstances as she reasonably perceived them to be at that time. I similarly reject the defendant’s assertion that the plaintiff’s depiction of his menacing and controlling conduct is a fabrication and the product of her disordered and/or paranoid mind. Indeed, as I have already mentioned, I find that many of the features of the wife-assault dynamic identified by Dr. Wade were present to one degree or another in the parties’ relationship. I find that while the plaintiff is an educated and intelligent woman and was not a “shrinking violet” or an entirely passive recipient of the mechanisms of control and intimidation foisted upon her by the defendant, she had been terrified of and manipulated by his conduct on occasions leading up to March 11, and was legitimately terrified by the defendant’s enraged demeanour and threats on March 11, 2006. For her, the defendant’s conduct on that particular day amounted to the back-breaking straw and, reasonably fearing for her safety, she reluctantly involved the police for the first time and called her father for help. I find that the plaintiff decided to travel to New Zealand more or less on the spur of that moment. She left behind her thriving medical practice which she had laboured so diligently to build. There was no evidence that she had made any arrangements in advance to attend to her patients or deal with any financial matters or even access or safeguard her funds or investment account at MD Management, or had undertaken any other tell-tale signs of advance planning.

[224] The plaintiff was proactive in taking steps to address the legal consequences of her actions nearly immediately upon her arrival in New Zealand. There was no cogent evidence to support a finding that she had any kind of improper motive or was otherwise acting in bad faith when she took P to New Zealand in March 2006, or that she is so motivated currently.

[225] The defendant continues to qualify as being disabled from any type of work by his disability insurer. Despite his attempts to significantly downplay the nature of his symptoms and the extent of their debilitating effect on his daily life, there is a bona fide question about the defendant’s capacity to parent based on his physical ailments and his major depressive disorder. He has tendered no reliable evidence that his physical or psychological conditions are improving or are no longer disabling. It is notable that he was asked on discovery to produce his most recent completed form submitted in support of his Canada Pension Plan disability benefits, and he refused to do so. The things that the defendant identified at trial and to Dr. Krywaniuk as potential employment prospects in the event that his condition were to improve, had no foothold in reality.

[226] It is perhaps understandable for the defendant to harbour negative feelings and resentment towards the plaintiff. However, his deep antipathy and seemingly relentless desire to punish her for what he perceives to be her “criminal conduct”, is overtly vengeful and consumes him. It is excessive and unhealthy. I apprehend that the defendant is prepared to go to extreme lengths, including defaming the plaintiff in P’s eyes and attempting to alienate her from the plaintiff, as a means of perpetuating his vindictive concept of justice. At trial, he very clearly conveyed his sense of entitlement to do so. I have a lingering concern also that the defendant will continue to enlist his children in his attempts to disparage the plaintiff to P and that the daughters would not only do so, they would of their own accord have little compunction about speaking of the plaintiff to their little sister, in belittling and disdainful terms. I have no parallel concerns in relation to the plaintiff’s future interactions with P.

[227] In his evidence, the defendant was preoccupied about what he believes are “his rights” concerning the custody of P, rather than articulating what he understands to be P’s desires and needs. I have no confidence that his perception will be altered in any meaningful way or that his conduct will settle down once this litigation comes to an end as was urged by his counsel. I am concerned that driven by his zeal to exact revenge against the plaintiff, there is a better than slim prospect that the defendant would periodically attempt to frustrate the plaintiff’s access to P. I have no such concern about the plaintiff’s conduct. In this regard it is worth noting that the plaintiff testified that she will take care to promote a positive relationship between P and her father. She says that she will also encourage P’s appreciation of the part of her heritage that is Iranian and will support P’s exposure to and involvement in Iranian culture. The defendant did not contradict this evidence. In any event, I believe the plaintiff.

[228] I have no doubt that the defendant and his three children by his prior marriage love P and enjoy a caring relationship with her. I believe that P’s half-siblings spend positive sibling time with P and have attempted to nurture her as best they know how. The two daughters no longer live at home with their father. The Eldest Daughter gave no indication that she plans to resume living with her father. Although the Middle Daughter testified that she intends to move back home and attend university, the happening of that event and the timing of it are far from certain. In this regard, I note that it is not at this stage even clear whether the defendant will be leaving the coastal community and setting up a household in the lower mainland where the Middle Daughter could reside were she to attend a local university. As things presently stand, the likely scenario would see the defendant and his Son residing together as a unit. If P were to live with them, the Son would be graduating from high-school about the time that P would be entering grade 1. The age difference is considerable.

[229] There was a noticeable lack of evidence about the involvement of the defendant’s extended family in P’s life or in the lives of the defendant and his other children. The only references were those made in passing to the defendant’s father, who resides in the lower mainland, and to some infrequent interactions between the defendant and his sisters, who do not reside in British Columbia. I contrast this with the evidence pointing to an established connection between P and her maternal grandparents. The plaintiff’s parents intend to spend considerable segments of each year in New Zealand. I find that they have developed a positive relationship with P and would continue to foster one if P were to reside in New Zealand. The defendant expressed most stridently that he wished to sever all contact between the plaintiff’s father and P. This is driven by his perceived entitlement to punish the father-in-law for his actions and is entirely blind to the issue of whether such segregation would be in P’s best interests – it clearly would not be.

[230] The plaintiff is much younger than the defendant. She is healthy and is not disabled. She longs to build a life for she and P in New Zealand where they would be welcomed and supported by extended family and a network of friends. As stated earlier, she plans to qualify professionally in New Zealand. I would expect that she would be able to find similar and perhaps even more remunerative employment in her profession were she to remain in the lower mainland. However, I do not consider that factor to be of relevance here. I fully expect that the plaintiff’s financial circumstances will be superior to the defendant’s circumstances long into the foreseeable future. The plaintiff has a track record of exposing P to enriching opportunities and age-appropriate, fun based activities. She appreciates the importance of P having those experiences and there is every indication that she will continue to ensure that P has them. I am not satisfied that would be the case if P were to reside primarily with her father.

[231] P is too young to reliably express any views on the matter of her custody, and given her tender years, it is not appropriate to even raise the topic with her. My impression was that these obvious points were lost on the defendant and the Eldest Daughter.

[232] All moves have an element of change, and change, in turn, necessarily has an element of disruption in the broad sense. I do not accept, however, that change is, of itself, a necessarily negative event for a child. A change of schools and playmates can as easily be a positive as a negative occurrence. A qualitative evaluation of the impact of the change or disruption on the particular child must be carried out in order to know the manner and significance of its affect on a child, and whether any negative repercussions can be ameliorated. In my view, there will be no disruption to speak of to P’s ties to the community or pre-school activities consequent on her relocation to New Zealand. There would, of course, be an enormous disruption to P’s contact with the defendant and her half-siblings. New Zealand is far away, accessible by aeroplane at a not insignificant cost. If P were to reside there and a reasonably generous access regime were implemented, the defendant’s access would still be severely curtailed from the current arrangement.

[233] In balancing the competing benefits and detriments at play, I conclude that it is in P’s best interests for the plaintiff to have sole custody and that she be granted permission to relocate to New Zealand with P. It is my opinion that this arrangement will provide P with the greatest likelihood of a stable and nurturing up-bringing.

[234] I am prepared to grant the parties joint guardianship, however, the defendant’s guardianship right is limited solely to the retention of guardianship on the death of the plaintiff, and otherwise he is not to share in any part of the bundle of rights ordinarily incidental to guardianship. For sake of clarity, the defendant has no decision-making authority nor is he entitled to be consulted on matters respecting P’s education, medical, dental or other health treatment, religious up-bringing or on matters associated with life-style generally.

[235] I have attempted to design a plan aimed at providing as much access as is reasonable given the distance between the defendant and P, and the financial means of the parties. This plan is subject to refinement as circumstances of importance change and if difficulties of implementation arise.

(b) Access

(i) Summer Access – 7 consecutive weeks: The plaintiff shall make reasonable arrangements to transport P to Vancouver, British Columbia for a consecutive seven week Summer Access period to commence on July 1 of each and every year. Pursuant to a separate court order pronounced after trial and pending judgment, P has spent the past several weeks visiting the plaintiff in New Zealand. Because she may be scheduled to return to Vancouver at the end of this month, the Summer Access period for this year only may commence on June 1, 2008. The plaintiff is at liberty to chose whether Summer Access this year will commence on June 1 or July 1 and is to inform the defendant of her decision via e-mail through her counsel no later than 6:00 p.m. (British Columbia time) Thursday, May 29, 2008. The plaintiff is solely responsible for the cost of transporting and escorting P in respect of every Summer Access period.

The plaintiff shall arrange for an escort to deliver P to the Robson Street entrance of the Vancouver Art Gallery between 12:00 noon and 1:00 p.m. on the commencement date of the Summer Access period and to collect P from the same location between 12:00 noon and 1:00 p.m. on the last day of Summer Access being the 49^th day of access. The plaintiff is to advise the defendant of the name and telephone contact number of the escort reasonably in advance of the commencement of Summer Access.

(ii) Winter Access – 4 consecutive weeks: The defendant shall make reasonable arrangements to transport P to Vancouver, British Columbia for a consecutive four week Winter Access period to commence on January 4 of each year. In this regard, I have relied on the evidence of Mr P.M. who testified that the winter school holiday in New Zealand runs throughout January and into February. The defendant is solely responsible for the cost of transporting P in respect of her Winter Access.

For the year 2009 only, before P is enrolled in Grade 1, her Winter Access may take place for four weeks in the month of March 2009, in order that she may have the opportunity of celebrating the Persian New Year with her father and half siblings. The decision as to whether or not the Winter Access for the 2009 year will occur in March as opposed to January belongs to the defendant. He is to communicate his decision in writing to the plaintiff’s counsel no later than October 31, 2008. I do not know whether once P is enrolled in elementary school in New Zealand, she will have a spring or Easter break in or around the time of the Persian New Year. In the event that she does, and if the defendant wishes it to be the case, I would strongly urge the plaintiff to agree that the Winter Access occur during such spring/Easter break from school.

(iii) The plaintiff is entitled to telephone access to P twice per week during Summer Access and Winter Access, respectively for up to 30 minutes, between the hours of 6:00 a.m. and 8:00 a.m. New Zealand time on Tuesdays and Thursdays at a telephone contact number which she is to supply. The defendant will be solely responsible for the payment of the plaintiff’s telephone access to P during the Summer Access and Winter Access.

(iv) In the event that the defendant needs to communicate with the plaintiff about an urgent matter relating to P during either the Summer Access or Winter Access periods, he may do so by contacting a telephone number to be supplied by the plaintiff.

(v) The defendant is entitled to telephone access to P two times per week for up to 30 minutes on Tuesday and Thursday evenings between the hours of 6:30 and 7:30 p.m. New Zealand time. The plaintiff shall provide a telephone number for the defendant to have such telephone access through her counsel no later than June 5, 2008. The plaintiff shall be solely responsible for payment of the cost of such telephone access.

(vi) The parties may communicate to and about P without limitation by sending e-mail messages and pictures to an e-mail address to be supplied forthwith to the defendant by plaintiff’s counsel. The plaintiff shall check this e-mail address at least twice per week until P is old enough to do so on her own and shall assist P in responding to messages from the defendant.

(c) Reapportionment

[236] Each party seeks reapportionment of the Matrimonial Property, which is the chief family asset. Reapportionment is available where the court determines that an equal division of the family assets would be unfair having regard to the factors enumerated in s. 65(1) of the Family Relations Act, R.S.B.C. 1996, c. 128. Those factors are:

(a) the duration of the marriage;

(b) the duration of the period during which the spouses have lived separate and apart;

(d) the extent to which property was acquired by one spouse through inheritance or gift;

(e) the needs of each spouse to become or remain economically independent and self-sufficient; or

(f) any other circumstances relating to the acquisition, preservation, maintenance, improvement or use of property or the capacity or liabilities of a spouse.

[237] The Court must determine not only entitlement to reapportionment, but also the extent of it, with exclusive regard to the considerations listed in s. 65(1).

[238] The majority of the considerations contained in s. 65(1) are reflective of the contribution made to the assets. The concept of contribution is to be viewed in a broad sense and the court should therefore not conduct a forensic accounting into the parties’ relative contributions: LeBlanc v. LeBlanc, [1988] 1 S.C.R. 217; Low v. Low, 2000 BCSC 947, upheld 2001 BCCA 574; Uchikoshi v. Suzuki, 2004 BCSC 1763. In general, the longer the marriage, the more likely that the family assets will be divided equally. A short marriage tends to elevate the importance of the relative contributions made by the parties to the acquisition of the assets. The marriage in this case is on the short end of the spectrum. In Jensen v. Jensen, [1994] B.C.J. No. 2603 (S.C.) (QL), after surveying the authorities, Baker J. clarified that marriage is not an institution created to redistribute wealth and that a short marriage should not confer a financial windfall on one of the parties.

[239] Section 65(1)(e) stands out because, unlike the other enumerated factors, it focuses on the economic independence and self-sufficiency of each spouse and, in that way, incorporates the self-sufficiency objective articulated in the support provisions of the Divorce Act. The parties’ respective financial considerations are to be determined by reference to their standard of living prior to separation as well as their financial needs arising out of post-separation circumstances: Fong v. Fong (1983), 45 B.C.L.R. 222, 34 R.F.L. (2d) 337 (C.A.). While economic self-sufficiency is a consideration relevant to both apportionment and to a spousal support analysis, the authorities endorse the approach where the court first deals with the division of property, including reapportionment, before it goes on to determine entitlement to spousal support: Tedham v. Tedham, 2005 BCCA 502. As stated by the Court of Appeal in Foster v. Foster, 2007 BCCA 83, 64 B.C.L.R. (4^th) 259 at para. 50:

Combining the analyses tends to create confusion and to blur the distinctions between the factors relating to division of property (including reapportionment), and those relating to spousal support. It also creates a greater potential for double recovery.

[240] The plaintiff contributed the down payment in the amount of $105, 000. toward the acquisition of the Matrimonial Property. She had derived that amount from the sale proceeds of her apartment acquired prior to her relationship with the defendant. The defendant made no direct financial contribution to the $290,000 acquisition cost. Apart from that, there is very little evidence about each parties’ financial contributions in respect of the Matrimonial Property, including the mortgage (approximately $1,420 per month), property taxes and other maintenance and general upkeep costs. I infer that both parties contributed financially toward the mortgage and related costs prior to March 2006. Even so, it is clear that they were unable to keep on top of the paymentsm, as the property taxes were periodically in arrears before that time. The defendant says that since March 2006, he has been primarily responsible for payment of the mortgage, taxes and associated costs. I accept that he did make partial mortgage payments until August or September 2007. By then, the mortgage was in arrears. But I find that no property taxes had been paid for a considerable period and as at September 2007, they too were seriously delinquent. The defendant is critical of the plaintiff’s failure to contribute financially during this period. However, it is to be recalled that nearly immediately after the plaintiff left in March 2006, he made a concerted effort to impair her ability to earn income professionally by making groundless accusations about her ability to practise medicine. In terms of non-financial contributions, I find that the defendant did not maintain the upkeep of the home or yard during the many years of the plaintiff’s residency in the prairies in large part because his disability prevented him from doing so.

[241] Near the close of the trial, the parties agreed to the sale of the Matrimonial Property. I directed that counsel inform the court if the sale completed before reasons for judgment were issued. As it happens, the Matrimonial Property sold for the sum of $550,000 in the first week of May 2008. The anticipated net sale proceeds are roughly $295,000. Distribution of the amount of $25,000 has already been made to the credit of each party and the balance of the proceeds are being held in the trust account of the plaintiff’s counsel.

[242] In my view, there has been a significant imbalance of financial contribution to the Matrimonial Property on the part of the plaintiff. This imbalance has not been rectified by any financial or non-financial contributions by the defendant, even taking into account that his disability would have curtailed his ability to tend to the yard and general up-keep. At the same time, I recognize the defendant’s inferior economic circumstances. In weighing these and the other applicable factors, I conclude that at the end of the day, an equal division of the Matrimonial Property would be unfair to the plaintiff. Accordingly, I order that the Matrimonial Property be reapportioned in her favour 60%, leaving 40 % in favour of the defendant.

[243] Subject to the foregoing, each party is entitled to keep all other assets in his or her own name and shall be responsible for payment of all liabilities in his or her own name.

(d) Additional Orders Regarding Financial Matters

[244] The plaintiff is entitled to receive from the defendant, the sum of $1,400. Based on the imperfect evidence about value before me, I consider that figure to be reasonable compensation for her 50% interest in the van that the defendant transferred to his friend in the spring of 2006.

[245] It is my view that without the use of the paid intermediaries, the temporary shared custody arrangement would not have been workable. I consider it manifestly unfair in the circumstances that the plaintiff foot the entire bill to cover the implementation of access. I therefore order that she is entitled to receive the sum of $3,800 from the defendant for reimbursement of a portion of those costs.

[246] I order that both of the above sums are to be paid to the plaintiff directly out of the defendant’s share of the net sale proceeds currently held in the trust account of the plaintiff’s counsel.

(e) Child Support

[247] In his pleadings, the defendant seeks child support from the plaintiff in respect of the Middle Daughter and the Son: no claim is made for the Eldest Daughter. The Middle Daughter has now attained the age of majority. I am not satisfied on the evidence that she falls within the definition of “child of the marriage”. Consequently, I am not prepared to order that child support be paid on her behalf. It is open to the defendant to bring a future application to establish her entitlement should he choose to do so.

[248] Once the plaintiff secures gainful employment, she will be obligated to pay child support in respect of the Son, a point she conceded at trial. The plaintiff’s present employment status is unknown. In her submissions, she agreed to pay child support based on an imputed annual income of $70,000. Based on that income level, the plaintiff would be obligated to pay child support in respect of the Son in the amount of $654 per month, pursuant to the Guidelines. Working with the imperfect information before me, I order that the plaintiff pay child support in that amount to commence 30 days after she secures employment. I further order that in the event that she has not paid such support by August 30, 2008, the defendant is at liberty to seek directions or further orders of the court. The mode of payment is to be by way of a direct deposit or bank wire transfer by the plaintiff into an account, the particulars of which are to be conveyed by the defendant to the plaintiff’s counsel.

[249] Based on the defendant’s annual income of $27,600 he is obligated under the Guidelines to pay child support in respect of P in the amount of $257 per month. I order that he is to commence payment of that amount on June 1, 2008 and is thereafter to pay that amount on the first of each month to follow. The plaintiff is to open a separate bank account dedicated to receive those child support payments by way of wire transfer or direct deposit. Through her counsel, she is to communicate the details of the account to the defendant as soon as possible. Recognizing the defendant’s modest income, I order that the funds in that account from time to time are to be used toward defraying the costs incurred in transporting P in connection with her Winter Access. Any shortfall in relation to such costs (and I expect there will be one each year), is the sole responsibility of the defendant, pursuant to his general obligation to pay for Winter Access imposed above in the detailed access provisions.

(f) Spousal Support

[250] The defendant’s pleadings indicate that he is seeking spousal support. Perhaps understandably given the focus on the issue of P’s custody, the claim was not developed at trial. No submissions were made by counsel for either party other than the inclusion in the draft form of order proposed by plaintiff’s counsel, that the defendant’s claim for spousal support be dismissed. It may be that the defendant has abandoned his claim for support. In any case, given the state of the materials before me, I am not in a position to responsibly adjudicate the matter if the defendant intends to pursue it.

[251] The defendant (who is no longer represented by counsel) is to indicate whether he intends to proceed with a claim for support by letter to plaintiff’s counsel not later than June 16, 2008. If required, I will thereafter impose a schedule for the exchange of submissions.

(g) Divorce

[252] Subject to s. 12 of the Divorce Act, the parties are divorced from one another effective on the 31^st day after this order.

(h) Additional Orders

[253] This is an appropriate case for the court to grant a restraining order for an indefinite period, pursuant to s. 37 of the Family Relations Act. I therefore order that, until further court order, the defendant shall be restrained from molesting, annoying, harassing, communicating or attempting to do any of the above, with the plaintiff, except as expressly authorized in these reasons.

[254] Counsel indicated a desire to speak to costs after judgment. If the parties are unable to agree on costs, the plaintiff may file written submissions by July 31, 2008. The defendant will have 30 days after receipt of the plaintiff’s submissions to respond, and the plaintiff will have a further 14 days after that to file reply.

[255] Except where an urgent matter arises and I am unavailable, I am seized of all future applications in this matter.

“The Honourable Madam Justice Ballance”

June 3, 2008 – Revised Judgment

Corrigendum to the Reasons for Judgment issued advising that the following paragraph was inadvertently deleted from the final version of the reasons for judgment issued May 27, 2008. It belongs as a separate paragraph immediately following paragraph [175].

“[176] In Dr. Smith’s opinion, the plaintiff’s mental state at the present time is quite clearly normal with no evidence of depressive or anxiety symptoms, mood instability, hypomania, mania or psychosis. It is Dr. Smith’s opinion that the plaintiff has never suffered from a major mental illness such as bipolar disorder or schizophrenia and that any depressive or anxiety symptoms she has experienced have been in response to situational stress and have not impacted on her functioning as a physician.”

In addition, the word “design” is to be inserted after the word “to” appearing in the first line of paragraph [234] of the reasons for judgment.

Citation:	*H. v. K.,*
	2008 BCSC 660