http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc359/2009bcsc359.html
There's the most recent case law entry for the www.justiceforsteffany.org matter from the court in BC. I am gonna wade through it, and provide some commentary.
DISCLAIMER: I am not a lawyer, judge, social worker or anything else. Just someone who can read, and who can Google, much like most of you. My comments are my own opinion, of which I am free to share. And of course most willing. I also think that the common public should take a read of case law occasionally to see what's going on both in extreme cases (such as this) and in regular rulings.
Grab a Tim Horton's, or some other caffeinated beverage, crack open that case law and let's get down to business.
[1] The parties are the parents Steffany. She was born in British Columbia on March 19, 1998.
Right, she was born in Canada. Enough said.
[6] After her return from access time in April 2004, there were allegations that the father had neglected, physically abused, and sexually abused Steffany. The father denied these allegations, and voluntarily suspended his access while the police and representatives of the provincial government ministry responsible for the welfare of children conducted an investigation.
Here is where the allegations of abuse begin.
[9] The investigations carried out by the police and social workers in British Columbia have established no basis for a belief that the father has neglected or in any way abused Steffany. Test results indicated that the father does not present a risk to the child. The British Columbia police have not recommended charges, and the provincial child welfare authorities have not ordered any measures to ensure Steffany’s safety while in the care of her father.
Ok, so through the regular course of the law and proceedings, they found that the abuse allegations were unfounded. What you'll later learn is that Steven actually voluntarily submitted himself to two rounds of polygraphs, and psychological testing. All which supported the fact that the abuse allegations were unfounded.
As such:
[11] The trial judge, Madam Justice L. Smith, awarded interim sole custody of Steffany to the father and his mother, Joan Lorenz, and ordered Susan Lien to return Steffany to British Columbia by March 31, 2008. The return of the child was required in order that a psychologist’s report on custody and access could be completed. Smith J. intended that the ultimate determination of custody would follow.
[12] Susan Lien did not return Steffany to British Columbia.
Ok. So you're told to bring your child back so that a thorough assessment can be completed, and you choose not to.
Following those sections is a bunch of back-and-forth where the mother is continually appealing to the Canadian and US courts to get the jurisdiction be handed over to Nebraska. The Canadian courts said no, the US courts said no. Repeatedly.
[22] In December 2006, the father applied to the Nebraska court to order the enforcement of his December access with Steffany. The mother applied once again to have the court exercise temporary emergency jurisdiction and suspend this access. The court once again exercised its temporary emergency jurisdiction, and suspended the father’s court-ordered Christmas access with Steffany. There is no indication that the Nebraska court had been informed of the measures ordered by Goepel J., in November 2004, that incorporated the father’s request that access with Steffany be supervised. On the evidence presented (it does not appear that any of the relevant evidence gathered in British Columbia was before the court) the court found that “credible and convincing evidence exists that Steffany is subjected to or threatened with mistreatment or abuse when she is in the care, custody or control of the [father] in Canada”. The father’s access was stayed, temporarily, pending “the issuance of an order by the Supreme Court of British Columbia following a hearing that addresses the allegations of abuse alleged to have occurred in August 2006 during Steffany’s parenting time with the [father] in Canada”.
So the 11th hour "temporary emergency jurisdiction" gets placed (for the second time) and the court orders that Steven can't see Steffany for Christmas. They also indicate that a previous measure by Goepel J., was ignored, where they had said that Steven would have supervised access. Then it goes on to say (and this makes me scratch my head a few times):
On the evidence presented (it does not appear that any of the relevant evidence gathered in British Columbia was before the court) the court found that “credible and convincing evidence exists that Steffany is subjected to or threatened with mistreatment or abuse when she is in the care, custody or control of the [father] in Canada”.
Wait a second, none of the evidence used up here in British Columbia was before court and they found "credible and convincing evidence" that Steffany was in danger? I'll let you roll that one around a bit. Go refill that coffee.
[24] The matter came back before me on August 10, 2007. The mother did not attend. After a review of the evidence, I wrote:
All of this leads me to draw an inference that what is escalating is the mother's campaign to marginalize the father and eliminate his parental role with [Steffany].
Dr. Koch's opinion that the mother is unlikely to facilitate access appears prescient in the circumstances that have since developed.
There is, in my view, ample evidence to arouse suspicion that [Steffany’s] allegations have been influenced by the mother, or generated by [Steffany] to resolve the ongoing anxiety that her mother has over the continued involvement of the father and his family in [Steffany's] life.
Now we have a judge who is making, with the support of Dr. Koch, a very important observation. Now let's move along a little bit and see what the second (or is it third? or how many times has this been before the US and Canadian courts? lost count...) judge says:
[30] Smith J.’s reasons include a lengthy discussion of the evidence adduced at trial.
[31] Smith J. concluded:
I am firmly convinced that the best way to further this child’s well-being is to order that she be returned to British Columbia so that the report by Dr. England can be completed. The evidence I have heard supports a conclusion that Steffany would be safe in the custody of her father without any conditions. The evidence I have heard supports a conclusion that Mr. Lorenz and his family members are decent people who are worthy of belief and who are not responsible for any abuse of this child. However, although the plaintiff’s non-appearance and non-representation at trial was a matter of her own choice, I take into account that I have not heard evidence from the plaintiff or from witnesses she might choose to call and that the witnesses who testified before me were not subject to cross-examination.
Therefore, I have concluded that it is in the best interests of Steffany that she be in the interim joint custody of her father, Steven Lorenz, and her grandmother, Joan Lorenz, and that the existing conditions on female persons being present while Mr. Lorenz is with the child be continued. I am satisfied that Steffany will not be at risk in that situation. In my opinion it is more likely that Steffany will be at risk if she remains with her mother without seeing her father and her paternal family and without the completion of the section 15 report.
Ms. Lien will have reasonable and generous access. I would consider imposing the condition that she surrender her passport and that of the child prior to the exercise of such access. I believe that such a condition would be appropriate given the history of this matter.
Ok, finally the judge is satisfied that the child is not going to be at risk, and puts reasonable safeguards in place for Steffany even though the only reason those safeguards are in place is because of a false abuse allegation. I think the judge is being well, judicious here. Kudos.
Now I will leave it to you to read sections [33] through [37] which involves this crazy legislation being passed in Nebraska. Note that the attorney who proposed this change, was in effect, Susan Lien's attorney. Yes, that's right, Steffany's Mom's attorney went and lobbied for a bill change. Once the change was in place, they immediately applied to the court under those exact changes, and they were granted.
I wish I could do that. Oh yeah, and when you hear references in my previous blog posting where they are referring to Steven "withdrawing" his motions, etc. in Nebraska. Don't think for a minute it wasn't because of:
[45] The father, due to lack of funds to retain counsel (his funds having been used up in his effort to secure the mother’s compliance with orders of this court which, by reason of its own orders, and orders by the District Court and Supreme Court of Nebraska, retains jurisdiction over the matter) was unable to defend. In the result, judgment by default was granted in favour of the mother. The judge’s findings of fact, based on the limited evidence adduced before him, are now set out as the grounds for the motion brought by the mother in the Nebraska court, now scheduled to be heard by Judge Merritt on March 20, 2009.
Right, he ran out of money. Not an uncommon thing when fighting over access, custody or defending yourself against heinous abuse allegations.
Now take a read of section [51], it's lengthy so I will just pull the last paragraph:
To the contrary, the mother has flouted the series of orders of this court that call for her attendance in British Columbia. Each of these orders made provision for supervision when Steffany is in the company of her father. I emphasize that the father requested this provision, not because he had any concern that he might act improperly, but rather to ensure that someone could bear witness if, after returning to her mother’s care, further allegations of misconduct were made. This includes the March 20, 2008 order of Smith J., which left the matter of permanent custody open pending the completion of the custody and access report that would be facilitated by the return to British Columbia of the mother and the child before March 31, 2008.
This saddens me, a father has chosen supervised access not because it's what's best for the child, but because he has to do this to make sure that more damaging claims aren't levelled against him.
Read section [52] it leads off by saying:
[52] It is not mere speculation that the mother may be acting to alienate the father contrary to the interests of the child. Evidence before this court in the various proceedings up to and including the trial before Smith J. included the following:
It leads into summarized testimony by 6 independant witnesses, that say that the mother is not all she makes herself out to be.
Now let's begin wrapping this up by examining the following:
[54] The mother’s avoidance of the opportunity to have this matter properly resolved, based on a full hearing, is plainly not due to a want of energy or resources. She has, by her attorney, participated in hearings before the Judicial Committee of the Nebraska Legislature. This, apparently, with such vigour that the Nebraska Legislature has seen fit to amend its child custody legislation. She has, in addition, commenced an action in the Nebraska District Court in which she purports to raise, ostensibly on Steffany’s behalf, the very allegations that have been raised in proceedings before Judge Merritt of the Nebraska District Court in her application for the exercise of a temporary emergency jurisdiction to stay the father’s “visitation” as ordered by this court. It is of considerable interest that she succeeded in obtaining findings of fact, in default of appearance by the father, as alleged in support of her application to Judge Merritt to invoke the court’s temporary emergency jurisdiction. It is in relation to those very allegations that Judge Merritt and the Nebraska Supreme Court expected a full hearing in the British Columbia Supreme Court. This strategic move on the mother’s part lays the groundwork for the circumvention of the findings of both the District and Supreme Courts of Nebraska that: (1) confirmed the jurisdiction of the British Columbia Supreme Court, and (2) contemplated that a full hearing would take place in this jurisdiction.
Yes, this says it all. Re-read it a few times. Let it sink in. She's more than willing to fight like crazy in Nebraska, to the point of getting legislation changed in her favor then using the newly changed legislation to her advantage.
But will she come to Canada where all of the evidence points to the contrary? Where our court has ordered that she return the child to Steven? Where independant assessments can be completed? Not on your life, no way, now how. More content to sit in Nebraska, use her lawyer to re-write the law as they see fit and make a joke out of our court system.
This is a tragic case, a case that we should all be aware of, and one that we should all respect. At a bare minimum, we should not be letting the State of Nebraska rewrite the rules that ultimately protect children of Canada, nor should they be allowed to dismiss evidence that our court and our legal system has firmly proven to be true.
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