2007 BCSC 1735 Blackmore v. Blackmore

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Blackmore v. Blackmore,*
	2007 BCSC 1735

Date: 20071203

Docket: 17814

Registry: Cranbrook

Between:

Joseph Roy Blackmore

Plaintiff

And

Teressa Blackmore

Defendant

Before: The Honourable Mr. Justice Melnick

Reasons for Judgment

Counsel for plaintiff	D.F. Collins
Counsel for defendant	R.S. Miles
Date and Place of Hearing:	November 8, 2007
	Cranbrook, B.C.

[1] Joseph Roy Blackmore (“Mr. Blackmore”), the father of three children with his former spouse, Teressa Blackmore (“Ms. Blackmore”), seeks an order that he be granted sole interim custody and guardianship of those children. He also seeks an order that Ms. Blackmore be required to return the children from the State of Idaho to British Columbia. Mr. Blackmore’s alternative position, although not expressed in his notice of motion, is that he would be content with an order for joint custody and joint guardianship provided Ms. Blackmore returns with the children to reside near his residence in Canyon, British Columbia.

[2] From Mr. Blackmore’s perspective, the issue before me is simply to deal with a mother who snatched their children from under his nose under the guise of having them for a summer holiday when she really intended to change their residence. Ms. Blackmore stoutly denies that Mr. Blackmore was not aware that she was changing the residence of the children. However, apart from that, to her the issue is not simply one of matrimonial relations. She claims the real issue is her desire to keep her children, particularly her two daughters, out of the clutches of the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS Church), the Mormon community connected with Bountiful in Southeastern British Columbia of which Mr. Blackmore continues to be a member, but which Ms. Blackmore has left. To Mr. Blackmore, the FLDS Church is a convenient red herring raised by Ms. Blackmore as a cover to justify what would otherwise be regarded as wrongful conduct on the part of a parent in denying custody and effective access to the other.

I. BACKGROUND

[3] The parties were married in July 1998. There are three children of the marriage: a daughter born in April 1999, a son born in May 2000, and another daughter born in June 2002. In the affidavit material filed by and on behalf of each party, they do not agree on much else with respect to their marriage and the events that led to Ms. Blackmore now residing in the community of Payette, Idaho other than at the time of, and throughout most of, their marriage they were members of the congregation of the FLDS Church that is located in and around Bountiful. It is also common evidence that theirs was a monogamous marriage.

[4] Mr. Blackmore presents a body of affidavit evidence suggesting that, prior to their final separation in June 2007, Ms. Blackmore had spent considerable periods of time away from him and the children, leaving him responsible to care for the children. He and others who filed affidavits in support of his position describe him as a loving, caring father who spends a lot of time with his children and who is quite capable of parenting them in the future.

[5] On the other hand, in the affidavit material filed by Ms. Blackmore and those who support her, while agreeing that Mr. Blackmore was a good parent, they describe him as a person who works long hours without a lot of parental contact, that responsibility having been largely left to Ms. Blackmore throughout the marriage. She describes her absences from Mr. Blackmore and, at times, the children as much less than he portrays. For example, what she says was an absence to go to the United States to assist her sister for a period of weeks after her sister gave birth to a child was described by Mr. Blackmore as a separation of months.

[6] Their disagreements include the events of the summer of 2007. It is clear that by June 2007, Ms. Blackmore decided to leave the marriage. She then established residence in Payette, Idaho where her sister, Becky Musser ("Ms. Musser"), and husband ("Mr. Musser") reside. She decided to leave the FLDS Church just as Mr. and Ms. Musser had already done. It is Mr. Blackmore’s position that Ms. Blackmore led him to believe that she was taking the children to Idaho for a vacation for the summer and that they would be returned to his custody in August. It is her position that he knew that she was taking the children to live with her in Payette and that, in her view, this whole action is about his having pressure put on him by persons in the FLDS Church to punish her because she gave evidence against Warren Jeffs, a prophet of the FLDS Church, at his recent trial in Utah. That, of course, was denied by Mr. Blackmore.

[7] In British Columbia, the children attended, or would eventually attend, a school run by the FLDS Church. In Idaho, the oldest child is attending, and the others will eventually attend, a public school. Ms. Blackmore claims that the children were not doing well in their studies in British Columbia, but are now doing well; Mr. Blackmore disputes this.

[8] Ms. Blackmore is presently living with a man by the name of LaDel Richards (“Mr. Richards”), himself a single father of a 12-year-old child of whom he does not have custody but to whom he does have access. Ms. Blackmore has obtained full-time employment in a job, which enables her to be largely self-supporting and to care for the children. It is her position that, until she obtained such a job, she was unable to have the children with her after she left Mr. Blackmore due to her financial circumstances.

[9] For his part, Mr. Blackmore, who until recently has worked in the forest industry, says that he now has access to a job as a custodian of certain properties, which would enable him to have very flexible hours in order to care for the children. He also says that one of Ms. Blackmore’s sisters, who continues to reside within the FLDS congregation, and other persons related to him, would assist him in caring for the children. That, says Ms. Blackmore, is exactly what she doesn’t want because she does not want her children exposed to the polygamist beliefs of the FLDS Church and does not want them to grow up being programmed to be a part of it.

[10] For his part, Mr. Blackmore says that because Ms. Blackmore is employed, the children are sometimes placed in day care. Accordingly, he suggests that they will not receive as family-oriented an upbringing as he can provide in Canyon.

[11] The children are apparently in good health and do not require any specialized medical attention or the like. Counsel for Mr. Blackmore points out, however, that the children are Canadian citizens and, as of January 2008, will require passports to cross the Canada/United States border, suggesting that that may pose an impediment to access if the children reside in the United States.

II. DISCUSSION

[12] As I indicated to counsel during the course of this hearing, a resolution of the substantial conflicts in the evidence put forward, and the credibility of those who gave evidence, will have to be resolved at trial. This is an application for interim relief. In making an interim order relating to custody and guardianship, I am governed by federal and provincial laws applicable to such applications:

[13] Section 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides:

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

. . .

Joint custody or access

(4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

Access

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

Terms and conditions

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

Order respecting change of residence

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

Past conduct

(9) In making an order under this section, the court 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.

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[14] Section 24 of the Family Relations Act, R.S.B.C. 1996, c. 128, provides:

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances:

(a) the health and emotional well being of the child including any special needs for care and treatment;

(b) if appropriate, the views of the child;

(d) education and training for the child;

(e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(1.1) The references to "other persons" in subsection (1) (c) and to "each person" in subsection (1) (e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2).

[15] Further, it should be pointed out that s. 293(1) of the Criminal Code, R.S.C. 1985, c. C-46, states:

(1) Every one who

(a) practises or enters into or in any manner agrees or consents to practise or enter into

(i) any form of polygamy, or

(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage; or

(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

[16] On any version of the evidence presented on this application, Ms. Blackmore has been the parent principally concerned with the rearing of their three children. Undoubtedly, she has been absent from the children for some periods of time either because Mr. Blackmore would not permit her to take the children with her as she suggests or because she simply left them behind with him to be cared for as he suggests. The children presently appear to be well cared for, in good health and achieving good results in school or pre-school programs. The children have family in Payette in the form of Mr. and Ms. Musser and their child or children (Ms. Musser was apparently due to give birth on November 22) although, because Payette is apparently a ten-hour drive from Canyon, and in another country, the children are a long way from Mr. Blackmore and various family members who reside near him.

[17] Undoubtedly, each parent has the capacity to provide for the nurturing and upbringing of the children although the context would be markedly different: in the case of Mr. Blackmore, it will be with the assistance of family members and others in the wider FLDS Church community and, in the case of Ms. Blackmore, it will be with the assistance of Mr. and Ms. Musser, Mr. Richards, and day care.

[18] It must also be recognized that if the children are raised by Mr. Blackmore, they will be raised within the FLDS Church of which he is an adherent. Ms. Blackmore, having left the church and therefore being regarded as an apostate, will clearly discourage the involvement of the children in the FLDS Church. In my view, it is beyond the scope of this application to deal with the wider legal and societal implications of the involvement of individuals in a religion or organization that practices polygamy. Suffice it to say that, whatever Mr. Blackmore may argue about the FLDS Church being irrelevant to this application, it is an elephant in the corner of the room of this proceeding that inevitably casts a shadow over it.

[19] On the evidence before me I am satisfied that, quite apart from the issue of the FLDS Church, it is in the best interests of the children that Ms. Blackmore continue to have custody and guardianship of the three children of the marriage. However, notwithstanding that Mr. Blackmore’s access to the children will be made more difficult by Ms. Blackmore continuing to live in Payette, I would not direct that, as a condition of retaining custody and guardianship of the children, she return to live near him. I accept her evidence that, as an apostate, she and the children will face ostracism by the FLDS Church community, which may well have a negative impact on the children. Maximum contact with both parents is inconsistent with the best interests of the children in this case.

[20] Ms. Musser made the following statements in her affidavit of November 7, 2007, which reflect her own experience with the FLDS Church:

15. I have a great deal of concern for any children being raised in the FLDS religion. I personally saw and heard the directive of Warren Jeffs to “clean up” the education system. By that, he meant that children could only be exposed to a very narrow education that was totally centered on the church’s teachings. The majority of what is taught is fashioned around their Priesthood history, its ideas, and teachings. Math is probably the strongest subject that is taught. There is little, if any, world history or science. English and Reading are taught only from stories written by FLDS followers.

16. I am greatly concerned about the education system currently in place for these young children whose parents follow the FLDS faith. Not only is the education curriculum compromised, but also the opportunities for the children are as well. Most of the schooling is done at home, with the mothers. In most situations these mothers are overwhelmed with caring for the responsibilities of very large families, and they have little time to follow through with the children’s “home” school. I am concerned that they neither have the time or energy, to not only work through a schooling program with the children, nor to nurture their education nor attend to any special needs that an individual child may have.

17. Children raised in the FLDS church have little to no opportunity to play in any organized sports or pursue any other talents that a student in a formal or “public” school system would have access to.

18. The focus for the FLDS people, its children, and education system is to prepare for the apocalypse, which they believe is coming any day. They openly teach that nothing else matters but to obey and serve God, their prophet and their parents. To pursue a “school” subject, or sport, or talent is only looked upon as a distraction, and is useless to their “salvation”.

…

20. For any children raised in this extremely controlled religious environment, employment is only what they are directed to do by their parents, or what those in a church authority position direct them to do. In most cases, women are not allowed to work outside the home, especially in the every day “world” environment.

21. It is rare for any child in the FLDS community to have anything more than an 8^th grade education, which tends to play a huge factor in the kind of job they may be able to get or like to get.

[21] These statements are challenged, to some extent, by Mr. Blackmore. I do not need to accept all the statements as fact to conclude that they raise sufficient concern that, in the best interests of the children, I will not grant an order for joint custody and joint guardianship. That is, I will not create a situation whereby Mr. Blackmore might, should the circumstances arise, automatically become entitled to sole custody and guardianship.

[22] Finally, the fact remains that while Mr. Blackmore and Ms. Blackmore had a monogamous marriage, Mr. Blackmore continues to be an adherent of the FLDS Church, which, according to the thrust of the evidence on this application, has as one of its principals or core values the practice of polygamy. By s. 293 of the Criminal Code that continues to be, as of the date of this judgment, a criminal activity in Canada. That is an activity to which these children would be exposed if in the custody and guardianship of Mr. Blackmore. That is just one more reason, apart from the others I have articulated above, why Ms. Blackmore should have sole interim custody and guardianship of the three children.

III. CONCLUSION

[23] Mr. Blackmore’s application is dismissed. Ms. Blackmore will have sole interim custody and guardianship of the three children of her marriage to Mr. Blackmore and, until the matter is further dealt with on a permanent basis, she may continue to reside in Payette, Idaho with the children.

[24] Counsel may address the question of access at a time to be arranged although, if convenient, that question may be dealt with by another judge of this court. I indicated to counsel during the hearing that I considered myself seized only of the application for interim custody and not further proceedings in this matter.

[25] Counsel may also address the question of costs at a time to be arranged.

"Melnick J."