T.F. v. S.H., 2023 BCPC 266

Citation: T.F. v. S.H. 2023 BCPC 266 Date: 20230919 File No: F-41717 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court BETWEEN: T.F. APPLICANT RESPONDENT ON COUNTER-APPLICATION AND: S.H. RESPONDENT APPLICANT ON COUNTER-APPLICATION AND: K.F. and D.T. RESPONDENTS ON ALL APPLICATIONS RULING (Guardianship Issue) OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for T.F.: L. Spencer Counsel for S.H.: M.D. Metzner K.F. and D.T.: No Appearance Place of Hearing: Surrey , B.C.

Dates of Hearing: Oct. 5, 2022; Jan. 19 and 20, June 12, and July 26, 2023 Date of Ruling on Guardianship Issue: September 19, 2023 INTRODUCTION [ 1 ] This is the continuation of the F. and H. family law matter, in which I rendered an oral ruling on June 12, 2023 regarding the jurisdiction issue (the “Jurisdiction Ruling”). After further submissions from, and discussion with, the parties’ counsel on July 26, 2023,

and in spite of my concern that it would be a piecemeal approach, it was agreed as follows: I would next rule on the guardianship issue – i.e. whether or not Ms. H.’s guardianship of Child R. should be terminated; and any issues, including child support, arising from my ruling on the guardianship issue (the “Guardianship Ruling”) will be addressed at the next court appearance, currently scheduled for October 13, 2023. [ 2 ] In addition to any

definitions and findings of fact I may make in this Guardianship Ruling, I rely on the

definitions, the background, and findings of fact I made in the Jurisdiction Ruling. For ease of reference, I have attached to this Guardianship Ruling as

Schedule I the Jurisdiction Ruling issued June 14, 2023 and the Corrigendum to the Jurisdiction Ruling issued June 20, 2023. [ 3 ] To provide context, I may repeat or refer to some of the evidence and discussion contained in the Jurisdiction Ruling. [ 4 ] By application filed January 18, 2022, Uncle T. seeks to have the Guardianship Order changed so that he has sole parental responsibilities, all parenting time, and primary residence of Child R. He also seeks retroactive child support from October 1, 2020, and prospective child support from Ms. H.

Although his application includes a claim for s. 7 expenses, Uncle T. abandoned this claim during the hearing on June 12, 2023. [ 5 ] In Ms. H.’s reply (filed February 18, 2022) to Uncle T.’s application, she agrees with Uncle T. having sole parental responsibilities, all parenting time, and primary residence of Child R. However, she disagrees with Uncle T.’s application for child support. By way of counter application (or cross-application) filed February 18, 2022, Ms. H. seeks to have her guardianship of Child R. terminated pursuant to s. 51(1)(

b) of the FLA , requiring a change to paragraph 1 of the Guardianship Order. [ 6 ] All references to

section numbers in my discussion are to the FLA , unless stated otherwise. All of the relevant legislative provisions are set out in the schedules to the Guardianship Ruling and the Jurisdiction Ruling. DISCUSSION Legal Framework [ 7 ]

Part 4 of the FLA contains eight Divisions, including the following: Division 1 – Best Interests of Child (ss. 37 to 38) Division 2 – Parenting Arrangements (ss. 39 to 49) Division 3 – Guardi anship (ss. 50 to 57) [ 8 ] Under the FLA , guardianship encompasses a full “bundle of rights”: A.A.A.M. v. British Columbia (Children and Family Development) , 2015 BCCA 220 , at para. 11 . [ 9 ] Section 51(1)(

a) states that on application, a court may appoint a person as a child’s guardian. Section 51(2) states that the applicant under s. 51(1)(

a) must provide evidence to the court respecting the best interests of the child as described in s. 37. [ 10 ] Section 51(1)(

b) permits the court, on application, to terminate a person’s guardianship of a child. Division 3, under which the guardianship provisions fall, does not specify what evidence the applicant under s. 51(1)(

b) must provide to the court, similar to what is provided in s. 51(2) with respect to an application to appoint a person as a child’s guardian. Test for termination of guardianship of a child [ 11 ] Ms. H.’s counsel argued that the best interests of the child test does not apply when considering an application to terminate a person’s guardianship of a child. She referred to the case of J.L.M. v. G.A.T. , 2013 BCPC 96 (“ J.L.M. ”), and in particular to para. 11, which reads as follows: [11] Ms. Dodds argued, in the alternative, that I could make an order under s. 51(b) [ sic ] terminating Mr. T.’s guardianship of K. While s. 51(2) provides that an application under (1)(

a) to appoint a person as a child’s guardian must be supported by evidence respecting the best interests of the child as described in s. 37, no such requirement is demanded of s. 51(1)(b). Nonetheless, Ms. Dodds led evidence through Ms. M. of the family violence. She further led evidence that Mr. T., apart from the brief time that the parties were reconciled - contrary to the criminal court order prohibiting such contact - has not had participation in the parenting of K. [ 12 ] Based on this paragraph, Ms. H.’s counsel submitted that it is not necessary for Ms. H. to lead evidence on the best interests of Child R., as s. 51(1)(

b) does not require the court to consider the best interests of Child R. in determining whether to terminate Ms. H.’s guardianship of Child R. [ 13 ] With respect, I disagree with this submission. Para. 11 in J.L.M. sets out the applicant’s counsel’s argument in that case. The court did not state that it agreed with that argument. In J.L.M. , the mother applied for sole guardianship of the child. The father did not file a reply. There was evidence of domestic violence in the relationship, and the father was facing criminal charges for assault of the mother.

He was placed on protective conditions to have no contact with the mother. [ 14 ] The court in J.L.M. appears to have considered the best interests of the child in granting sole guardianship to the mother. The court, at para. 12, said: [12] . . . Mr. T.’s absence and his failure to even file a Reply in these proceedings knowing that Ms. M. seeks sole guardianship of K. makes it clear that he has no interest in the outcome of these proceedings or the guardianship of K. I find that it is not in K.’s best interests to continue Mr. T.’s guardianship of her. I make an order under s. 39 providing that Mr.

T. is not a guardian of K. I would

make an order under s. 51 terminating his guardianship if I had not found that I had jurisdiction to make my order under s. 39. (my emphasis) [ 15 ] I disagree with the submission of Ms. H.’s counsel that “there is no ‘best interest’ test on removing a guardian,” as there is both legislative and jurisprudential support for the child’s best interests test. [ 16 ] The first

section under

Part 4 is s. 37(1), and it states: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [ 17 ] This

section is explicit in its wording in that it says, in making an order under

Part 4, which includes Division 3 – Guardianship, the court must consider the best interests of the child only . (my emphasis) [ 18 ] There are numerous cases, binding on this court, that state that the best interests of the child is the only consideration in determining whether to terminate a person’s guardianship of a child. For example, in S.J.S. v. Y.W.P. , 2017 BCSC 798 , at para. 60 , the court said: [60] Under the FLA , both the claimant and respondent are presumed to be the child’s guardians: see s. 39(1). The claimant has argued that the respondent’s guardianship should be terminated: see s. 51(1)(b) .

In contemplating such an order , or orders respecting parenting time or responsibilities, I must only consider the best interests of the child as defined in 37 of the FLA . It will rarely be in a child’s best interest to terminate guardianship and this may be ordered only in the most extreme situations: see D. v. D. , 2013 BCPC 135 , cited with approval in J.W.K. v. E.K ., 2014 BCSC 1635 at para. 23 . (my emphasis) [ 19 ] The following passages in J.W.K. v.

E.K. (at paras. 21 to 30 ) make it clear that the child’s best interests test is the proper test to apply in considering whether to terminate a person’s guardianship of a child: [21] The FLA sets up a presumptive approach to guardianship: parents who have lived with their children prior to separation remain guardians after separation (s. 39(1)). However, that presumptive status is not necessarily permanent, as the court may intervene: s. 39(2) states that “an order made after separation … may provide that a parent is not the child’s guardian”, while s. 51(1)(

b) provides that upon application a court may “terminate a person’s guardianship of a child.” The application for termination in this case was heard under s. 51(1)(b). [22] There have been a number of cases in the Provincial Court and the Supreme Court that have considered the concept of guardianship under the FLA , the test for termination, and the relationship between guardianship and parenting responsibilities. [23] In D. v. D. , 2013 BCPC 135 , Judge Merrick said that it will rarely be in a child’s best interests to terminate guardianship and thereby turn a parent from a guardian into a person with contact.

Where there are concerns about one guardian’s parenting capacity, the court should first consider whether a reallocation of parenting responsibilities can eliminate any risk to the child’s best interests arising from the parent’s continued guardianship. If so, the court should refuse to terminate. This approach allows the child to safely retain the benefit of a meaningful and significant relationship with their parent.

Judge Merrick said this: 24 When considering an application to terminate a parent’s guardianship, I am of the view that considering the factors enumerated in s. 37(2) of the Family Law Act , termination can only occur in the most extreme situations . The approach to be taken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian. If it is, guardianship should not be terminated .

It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children. 25 In my view, it will be rare when that is in the child’s, or in this case, the children’s best interests. 26 By first determining whether a parent guardian can remain a guardian by allocating or reallocating parenting responsibilities, parents will have the maximum opportunity to remain a significant part of the child’s life. [Emphasis added.] [24] In D. v.

D. there were serious concerns about the father’s parenting capacity and abilities -- he had committed more than one act of family violence -- but he also had a strong bond with the children, who wished to continue to have a “meaningful relationship” with him. Judge Merrick concluded that a severe restriction of the father’s parenting responsibilities would be sufficient to address these concerns. In that case, the reallocation of responsibilities was so extreme that the father only retained the right to receive information respecting the children’s health, education and welfare.

All parenting time was supervised and the father was prohibited from exercising even the responsibility over day-to-day decision-making during his parenting time. [25] The British Columbia Supreme Court has commented favourably on the approach set out in D. v. D. In M.A.G. v.

P.L.M. , 2014 BCSC 126 , Madam Justice Fleming cited the case with approval, referring to it as “persuasive authority” and summing up the decision as follows: [44]… The thrust of the decision is that by allocating or reallocating parental responsibilities to a more capable parent as opposed to terminating guardianship, a child may safely retain the benefit of having a parent remain a significant part of his or her life. [26] Applying that approach, she refused to terminate the father’s guardianship, instead allocating the majority of responsibilities to the mother (including day-to-day care decisions even when the children had parenting time with the father, at least so long as the father’s parenting time was supervised). [27] While D. v.

D. provides the most in-depth discussion on termination, there have been a number of other decisions that have

commented on the matter since the FLA came into force. The British Columbia Court of Appeal has confirmed, in British ColumbiaBirth Registration No. 2004-59-0201058 (Re), 2014 BCCA 137 at para. 60, that the “best interests” test (as set out in s. 37 of the FLA)applies to orders for termination under s. 51(1)(b). In P.N.K. v. C.L., 2013 BCSC 1856, at paras. 94-95 and 105-109 I refused terminationunder s. 51 on the basis that the children “are entitled to have the benefit of guidance from both their parents” (para. 108). [28] There are two other reported Provincial Court decisions. In the first, J.L.M. v.

G.A.T., 2013 BCPC 96, the court did ordertermination of guardianship. In that case the application to terminate guardianship was unopposed, as the father failed to file a reply tothe notice of family claim, thereby making “it clear that he has no interest in the outcome of these proceedings or the guardianship of”the child. Further, the father had been violent during the relationship -- he was facing criminal charges for assaulting the mother, whohad a “no contact” order against him -- and the child had witnessed that violence. [29] In S.H. v.

R.G., 2013 BCPC 114, the father sought to terminate the mother’s guardianship of the children.

Despite some concernsabout the mother’s parenting capacity, Judge Hamilton refused to order termination, emphasizing the statutory presumption ofguardianship under the FLA and commenting that, in enacting the statute, “the Legislature decided to put birth parents who have raisedchildren together before separation on more equal footing than they have been in the past.” The judge said that it appeared, from thescheme of the FLA, that the Legislature intended that orders to terminate guardianship would only issue in “very rare and the clearest ofcases where cancelling guardianship was clearly in the child’s best interests.” [30] The cases discussed above recognize that status as a guardian protects or promotes a meaningful or significant relationship betweenparents and children, post-separation.

In A.J.H. v. L.C.H., 2013 BCSC 900 at para. 8, the court stated that the loss of guardian status“effectively render[s] [the parent] no longer one of [the child’s] parents.” Symbolically speaking, a guardian is a person with the right toplay a parental role in a child’s upbringing. This is reflected in the FLA: absent guardian status, a parent is simply a person with contact -- a person who may apply to the court for “contact” with a child, which may not even be in person, but in writing, or by telephone.

Onthe other hand, a guardian has “parenting time” with a child (s. 42), even when they are not permitted to exercise parental responsibilitiesduring that time. [20] From these passages, it is clear that orders to terminate guardianship would only issue in very rare and the clearest of caseswhere cancelling guardianship is clearly in the child’s best interests. [21] While the guardians involved in these cases were natural parents, in my view, the child’s best interests test remains the same fornon-parent guardians as well, by virtue of the definition of the term “guardian” in the FLA (see

Schedule I). As the court in J.W.K. v.E.K., at para. 30, noted, “a guardian is a person with the right to play a parental role in a child’s upbringing.” [22] Section 37(2) states that to determine what is in the best interests of a child, all of the child's needs and circumstances must beconsidered, including the factors listed in s. 37(2)(

a) to (j). [23] Before turning to the non-exhaustive list of factors in s. 37(2), I will first address the submissions the parties made with respect totheir respective credibility. Assessment of Credibility of Witnesses [24] The parties each allege the other of not being a credible witness. [25] Ms. H.’s counsel submits that Uncle T. was emotional, had poor recall, minimized his aggressive behaviour towards Ms.

H.,exaggerated or embellished his evidence to portray himself as a victim, and his evidence was inconsistent in many respects with theevidence of the other two witnesses and the documentary evidence, and, in general, his evidence was self-serving. In light of theseconcerns, Ms. H.’s counsel urges the court to accept Ms. H.’s evidence over that of Uncle T., where there is a conflict in their evidence. [26] Uncle T.’s counsel, on the other hand, submits that Ms. H. exaggerated her evidence, in particular regarding the April 21, 2020incident, which led to the parties’ final separation. He says, Ms.

H.’s evidence, in general, lacks corroboration from other witnesses ordocuments, and, as such, calls her honesty and credibility into question. [27] The principles regarding assessing credibility are set out in the oft-cited passages from Bradshaw v. Stenner, 2010 BCSC 1398(aff’d. 2012 BCCA 296), at paras. 186 and 187: [186] Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Faryna v.

Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S.(R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)).Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a wholeand shown to be in existence at the time (Farnya at para. 356). [187] It has been suggested that a methodology to adopt is to first consider the testimony of a witness on a ‘stand alone’ basis, followedby an analysis of whether the witness’ story is inherently believable.

Then, if the witness testimony has survived relatively intact, thetestimony should be evaluated based upon the consistency with other witnesses and with documentary evidence. The testimony of non-party, disinterested witnesses may provide a reliable yardstick for comparison. Finally, the court should determine which version ofevents is the most consistent with the “preponderance of probabilities which a practical and informed person would readily recognize asreasonable in that place and in those conditions” (Overseas Investments

(1986) Ltd. v. Cornwall Developments Ltd. (1993), (AB QB), 12 Alta. L.R. (3d) 298 at para. 13 (Alta. Q.B.)). I have found this approach useful.

[ 28 ] I will use this approach in assessing the parties’ credibility. [ 29 ] The trier of fact may believe none, part, or all of a witness’ evidence, and may attach different weight to different parts of that evidence, rather than accepting or rejecting all of it: Gill Tech Framing Ltd. v. Gill , 2012 BCSC 1913 , at para. 28 . [ 30 ] Besides the parties, the only other witness was Ms. G., and her evidence was minimal. I have no concerns with her evidence and I accept it. [ 31 ] As I said, the parties accused each other of exaggerating their evidence to bolster their respective positions.

I do not intend to discuss every such allegation or accusation. I will discuss a few of them. [ 32 ] Uncle T. repeatedly alleged that Ms. H. unilaterally withdrew her guardianship of Child R. on the false and exaggerated premise that she was fearful of Uncle T., when in fact she was trying to avoid paying child support. He insinuated that her conduct was morally reprehensible, as she committed, at the time of her appointment, to being a guardian of Child R. for long term. [ 33 ] Uncle T.’s counsel, in his submissions, at paras. 25 to 27, writes as follows: 25.

That testimony [referring to the April 21, 2020 incident] was like many parts of [Ms. H.’s] testimony that should have had corroboration from other witnesses or documents providing corroboration but did not. And that lack of corroboration calls her honesty and credibility into question. 26. For example, [Ms. H.] said that prior to simply stopping coming to see [Child R.] on November 11, 2020, her lawyer sent a letter or an email to [Uncle T.’s] counsel. However, [Uncle T.’s] testimony was clear that he had no notice whatsoever and [Ms. H.] did not produce any such letter or email.

This is despite the fact that [Ms. H.’s counsel] would have such a document in her possession, if it existed. It clearly does not exist and this was just something that [Ms. H.] made up on the stand. 27. What is much more likely is that [Ms. H.] having become upset with [Uncle T.] not agreeing to her terms of the relationship (either her or him) having sole guardianship arrangement, on May 26 in her text messages[,] on May 29 made a false exaggerated report to the police and had him arrested, as a result of some type of upsetting incident on April 21, 2020 in their garage.

She then used that and the report to the Ministry to try and get guardianship solely of [Child R.]. When that failed then a few months later, after recommencing shared parenting time on July 5, 2020, on November 11 not getting her way about specific terms such as [Uncle T.] dropping [Child R.] off but driving away from the third-party person’s home, she then simply unilaterally left [Child R.’s] life. [ 34 ] Contrary to these egregious allegations, I found Ms. H. to be a forthright witness who generally provided clear, responsive answers to the questions she was asked.

I do not consider that she exaggerated her evidence or misled the court in any way. Ms. H. was honest in admitting when she could not recall certain details. She appeared to be confused about certain legal implications. While ignorance of the law is not an excuse, she appears to have blindly relied upon Uncle T. and the legal counsel who was assisting the parties in securing the Guardianship Order.

Her evidence was that she fully supported Uncle T. because she was in love with him at the time, and she wanted to get Child R. out of foster care, as it was deplorable. [ 35 ] I will point out a few exaggerations or mischaracterizations in the above submissions: Re para. 25

a) While corroborative evidence is helpful, it is not always available; or for that matter, is not always necessary if the oral testimony of the witness is credible and reliable. In this case, I have no concerns with the oral testimony of Ms. H. She did attempt to have a number of documents entered into evidence, including the transcripts of the threatening phone calls she received from Uncle T., which she handed over to the police. Re para. 26

b) There is email communication between the parties’ counsel, dated November 4, 2020 (Exhibit 12), wherein the concerns regarding Uncle T. not following the agreement the parties had with respect to the pick-ups and drop-offs of Child R., and not strictly following the no contact condition in his Release Order.

c) Ms. H. testified that it was only after Uncle T. failed to address these concerns that she stopped exercising her parenting time with Child R. (see Jurisdiction Ruling, paras. 47-49). She said the parties agreed, through their counsel at the time that Child R. would remain in Uncle T.’s sole care. She was under the impression that this arrangement terminated her guardianship and that this was confirmed in a letter from Uncle T.’s counsel.

d) I do not find that Ms. H. just made up something on the stand, as alleged. Ms. H. appears to have been confused about the arrangement the parties had come to regarding Child R. primarily residing with Uncle T., with him having sole guardianship of Child R. The evidence indicates that this discussion had been ongoing between the parties from about May 2020 to November 4, 2020.

e) I find that, at least as of November 4, 2020, Uncle T. was aware that Child R. would continue to reside with him, and that Ms. H. would not be exercising any further parenting time or parental responsibilities, as, after that date, there is no evidence of him asking her to do so, through his counsel or otherwise. The next interaction between the parties appears to have been slightly more than a year later when Uncle T. filed his application in January 2022. Re para. 27

f) Uncle T. implicitly admits that Ms. H. was not shying away from being a guardian of Child R. She was prepared to take on sole guardianship of Child R, which, no doubt, involves significant financial commitment on her part. Her main contention was that she could not be a joint guardian with Uncle T., due to his controlling and aggressive behaviour towards her.

g) To suggest that Ms. H. made a “false exaggerated report” to the police and had Uncle T. arrested due to “some type of upsetting incident on April 21, 2020 in their garage” is a gross minimization of what happened on April 21, 2020 and subsequently the hundreds of threatening phone calls that Uncle T. made to Ms. H.

h) Simply put, the police do not arrest anyone unless they have reasonable grounds to do so, and criminal charges are not laid against a person unless there is a substantial likelihood of conviction based on the evidence, and, among other factors, prosecution is in the public interest.

What is telling is that Uncle T. pled guilty on April 21, 2021 (see Jurisdiction Ruling, para. 51). [ 36 ] Uncle T.’s counsel, at para. 16 of his written submissions, states: In terms of the allegations of the assault and threats that [Uncle T.] pled guilty to, he described those as him blocking a doorway and making comments that would cause [Ms. H.] to be fearful. Since there was no evidence from the criminal proceedings before this Court, and as [Uncle T.] is a more credible witness, the Court should accept his version of events.

His description of what happened is consistent with the Court giving him a conditional discharge. [ 37 ] I disagree with the above submission that Uncle T.’s description of what happened is consistent with the court giving him a conditional discharge. There is no evidence as to what submissions were made to the court to support a conditional discharge. The gravity of the offence is only one of many factors a court would take into account in sentencing an offender.

Therefore, in my view, it would be a leap to conclude that just because Uncle T. received a conditional discharge, his description of what happened with Ms. H. is accurate. Uncle T. said, “the charges from April were for a relationship breakdown,” whereas the charges he pled guilty to were very serious, as the offences were against an intimate partner (Ms.

H.). [ 38 ] Based on the evidence before me, I find Uncle T. minimized not only the circumstances surrounding the April 21, 2020 incident (described in detail at para. 36 of the Jurisdiction Ruling), but also his aggressive behaviour (also described in detail in the Jurisdiction Ruling) towards Ms. H., and his past encounters with the judicial system (criminal and family). [ 39 ] On cross-examination, when asked whether he called Ms.

H. on April 29, 2020 and said, “if you dare report that first incident on April the 21 st to the police I’m going to come after you and kill you,” Uncle T. said, “I don’t recall.” He insisted that it is not possible that he would have said that. However, he pled guilty to (Count 4) “knowingly uttering a threat” to Ms. H. on April 29, 2020 “to cause death or bodily harm” to Ms.

H. [ 40 ] Then, when asked, why he pled guilty to the criminal charges on April 21, 2021, he said, “[b]y the time I went to court and I pled guilty it was because I had over 10 years ago a record when I was younger and I didn’t want to take the chance [in] bringing [Ms. H.’s] family to court.” He said, he only blocked the doorway to prevent Ms. H. from leaving the garage, but never assaulted Ms. H. at all.

However, he pled guilty to assault ( simpliciter ), as opposed to assault with a weapon. [ 41 ] He was also evasive about the seven entries (albeit expired) on the Protection Order Record Check, which he filed on July 5, 2019 in support of his application for the Guardianship Order. On cross-examination, when asked whether seven protection orders were registered against him, he said, “I’m not sure.” When questioned further about the protection orders, he said: I don’t know where they come from or what it could be. Is it a check that somebody runs without my knowledge. I never checked myself.

How can I be responsible for understanding that administrative document? [ 42 ] This response is extremely troubling, as this Protection Order Record Check was attached as Exhibit B to Uncle T’s Affidavit, which he filed on July 18, 2019, in support of his application for the Guardianship Order. [ 43 ] Protection orders are very serious matters. The following information about a protection order registry is publicly available: The Protection Order Registry is a confidential database containing all protection orders issued in B.C.

All safety-related orders made in B.C. go to the Protection Order Registry, including: o Family law protection orders o Protection orders made to protect children under the Child, Family and Community Service Act o Criminal Code peace bonds or bail conditions [ 44 ] In spite of seven entries on his Protection Order Record Check, Uncle T. told the court that he did not know anything about them. When pressed further by Ms. H.’s counsel, he contradicted himself, and said, “[a]ll those were from before . . .” [ 45 ] I find that Uncle T. was outright dishonest about these entries.

It is impossible to fathom how one would not know about seven protection orders against them. The person against whom such orders are made would, no doubt, have been notified, as that person would have to comply with the terms of those orders. Otherwise, the legislative purpose of having protection orders as a legal protective tool would be rendered meaningless. [ 46 ] Uncle T. was also not forthright about other key issues, including the length of his relationship with Ms. H. and his demands for child support from Ms. H. [ 47 ] Uncle T. was inconsistent about how long he had known Ms. H. He said he had known Ms.

H. in their longshore community for over 15 years and that he had met her before December 2018. At one point, he said he started dating Ms. H. in September 2018, but later said he was not sure of this date. However, in his Instagram communication with Ms. H. on December 26, 2018, he says, “. . . why have I never met you?” (Exhibit 10). He also said that he and Ms. H. started living together in a marriage-like relationship from December 2018. Ms.

H. denied these assertions and said that the first day she had any contact with Uncle T. was on December 26, 2018, and that they did not start living together in a marriage-like relationship until June 2019.

[ 48 ] Uncle T. grossly exaggerated the length of time he had known Ms. H., as the evidence of Ms. G. and the documentary evidence confirmed what Ms. H. said. I found as a fact in the Jurisdiction Ruling, at para. 28, that the relationship between the parties started on December 26, 2018, and they started living together in a marriage-like relationship on June 10, 2019. [ 49 ] Uncle T. testified that prior to filing his application on January 18, 2022, he asked Ms. H. “multiple times” to pay child support. He said the first time he asked Ms. H. to pay child support was in June 2020.

He then said, he had “many conversations in person in April and May” 2020 with Ms. H. about her paying child support to him. He said, “I asked her plenty for support.” [ 50 ] Ms. H. denies that child support was ever an issue. She said after the Property Agreement was concluded in January 2021, she never heard from Uncle T. until he filed his application in January 2022. She said the first she became aware of child support was when she was served with Uncle T.’s application in early 2022 seeking child support. She said, “I was just floored . . .

I didn’t know that he could . . . ask me for child support.” [ 51 ] Uncle T.’s evidence about when he asked Ms. H. to pay child support is troublesome in many respects. It is confusing to say the least. It is internally and externally inconsistent. Uncle T. says the first time he asked Ms. H. for child support was in June 2020, and then he says that he had many conversations with Ms. H. in person asking her to pay child support. This cannot be true as Uncle T. was on a no contact order since May 29, 2020, when he was first placed on a Release Order. The May 29 th Release Order was varied on June 12, 2020.

The June 12 th Release Order (Exhibit 8) was replaced with another Release Order on August 26, 2020. From May 29, 2020 until August 16, 2021 when Uncle T was placed on a Probation Order (Exhibit 11), Uncle T. was on a no contact order with certain exceptions. From May 29, 2020 to August 26, 2020 (during when Uncle T. claims to have first asked Ms. H. for child support), the following exceptions to the no contact order applied: As allowed by a family or child protection order made by a judge or master who has been given a copy of this bail order.

You must immediately file a copy of this order in any family or child protection proceeding in which you are a party or become a party; Through or in the immediate presence of a lawyer who has been given a copy of this bail order; Through court documents served by a third party, and during scheduled court appearances or case conferences but only with a sheriff present unless a master or judge waives this requirement. [ 52 ] There was no order made by a family court judge during this period allowing any contact, and Uncle T. did not file his Release Order in these proceedings.

Furthermore, Uncle T. testified that Ms. H. kept Child R. with her from May 29, 2020 to July 2020. Therefore, it is inconceivable why Uncle T. would ask for child support in June 2020 when he was on a no contact order, and Child R. was not even living with him at that time. [ 53 ] The evidence indicates, and I find as a fact, the following: (

a) from the date the parties separated on April 7, 2020 to April 21, 2020, Child R. resided solely with Ms. H. at her parents’ cabin; (

b) from April 21, 2020 to the date of Uncle T.’s arrest on May 29, 2020, the parties shared parenting time with Child R. (see Jurisdiction Ruling, para. 42); (

c) from May 29, 2020 to July 5, 2020, Child R. resided solely with Ms. H. (see Jurisdiction Ruling, para. 46); (

d) from about July 2020 to October 31, 2020, the parties shared parenting time with Child R. (see Jurisdiction Ruling, para. 47); (

e) the last Ms. H. saw Child R. was on October 31, 2020. [ 54 ] Given these facts, it is hard to understand how Uncle T. would have had any basis to ask Ms. H. “multiple times” for child support. I completely reject Uncle T.’s evidence in this respect. [ 55 ] Uncle T.’s evidence was inconsistent with that of Ms. H. in many other respects as well, including relating to whether he lived with Ms. H. at the 48A Street Property and the nature of the parties’ ownership of the 62 nd Street Property. [ 56 ] Ms.

H. testified that there were also other exaggerations or inaccuracies in the parties’ Affidavits filed in support of their application for the Guardianship Order. She said the Affidavits were prepared based on Uncle T.’s instructions to the lawyer who was assisting them with securing the Guardianship Order. Ms. H. did not correct these inaccuracies at the time. She cannot now say that she was deceived.

I have already addressed this issue at paras. 63 and 64 of the Jurisdiction Ruling. [ 57 ] However, what is clear from the evidence is that Uncle T. has a tendency to exaggerate or minimize, as the case may be, certain facts to suit his needs. He consistently cast blame on Ms. H. for the breakdown of the parties’ relationship, without taking any responsibility for his conduct. [ 58 ] Uncle T. testified that he and Child R. are the victims in all of this, without any insight or appreciation of how his behaviour has affected Ms. H. and her three children.

It is hard to reconcile his assertion of being a victim, when the evidence indicates otherwise. For example, in his text message to Ms. H. on May 1, 2020 (Exhibit 16), he says: You’re not for me. And [in] turn not for [Child R.]. He isn’t your proeblem [ sic ]. He isn’t your genes or blood. Same reason I wouldn’t see the twins. Your dad said it plainly. So if you are his step mom. And you aren’t my wife. I’ll be finding . . . a new step mom.

[ 59 ] And then in his text message to Ms. H. on May 14, 2020 (Exhibit 17), he says: Are you gonna sign him over And keep the bike seat? This is how stupid you are Sign him over So I don’t have to ask you for anything simple [ 60 ] Uncle T.’s threats I reference at para. 40 of the Jurisdiction Ruling are more violent and very concerning. I will discuss further examples of his concerning behaviour later in my discussion. [ 61 ] As I said, Uncle T. repeatedly admonished Ms. H. and accused her of “unilaterally terminating her guardianship” of Child R. since November 2020. This is factually and legally incorrect.

Factually, all she seems to have done is stopped exercising her parental responsibilities or have any parenting time with Child R since November 2020 for the reasons I have already discussed. Legally, she is still a guardian, albeit in namesake only. She has applied to this court to be terminated as a guardian. That is what this Guardianship Ruling is all about. [ 62 ] Furthermore, there were many other instances throughout the course of Uncle T.’s testimony where he was not responsive to the questions put to him. He had a tendency to get emotional and ramble on.

I had to direct him to focus, not interrupt, listen to the questions put to him, and answer them. [ 63 ] In light of these many concerns, where there is a conflict in the evidence between that of Uncle T. and Ms. H., I prefer to accept the evidence of Ms. H. [ 64 ] I will now turn to the factors listed in s. 37(2) in determining whether it is in the best interests of Child R. to terminate Ms. H.’s guardianship of Child R.

In doing so, I keep in mind s. 37(3) which states that an order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. I also keep in mind s. 37(4) which states that in making an order under

Part 4, a court may consider a person's conduct only if it substantially affects a factor set out in s. 37(2), and only to the extent that it affects that factor. Best Interests of Child R. (

a) Child R.'s health and emotional well-being [ 65 ] The parties did not lead specific evidence as to Child R.’s health or emotional well-being. From the evidence before me (including the photographs in Exhibits 5, 14 and 15), Child R. appears to have been a happy child while in the care of the parties. [ 66 ] There is no evidence that Uncle T. is not a good caregiver to Child R. Ms. H. testified that Uncle T. was “fine” with Child R., and she never felt Child R. was in danger with Uncle T.

She said she has no concerns with Uncle T. being the sole guardian of Child R. [ 67 ] I note from Uncle T.’s Financial Statement, filed January 18, 2022, one of the expenses he has listed is for “parenting coach counselling.” This proactive effort on the part of Uncle T. suggests that Uncle T. truly cares about Child R. and wants to be a good guardian to Child R. (

b) Child's R’s views [ 68 ] Child R. is too young to express his views, and there is none in evidence. (

c) The nature and strength of the relationships between Child R. and significant persons in Child R.'s life [ 69 ] Again, the parties did not lead specific evidence relating to this factor. From the evidence before me, I note that Uncle T. has been a significant person in Child R.’s life at least from the date of the Guardianship Order. [ 70 ] I would say that Ms. H. was also a significant person in Child R.’s life from August 6, 2019 to October 31, 2020. However, this was a very short period, when Child R. was a toddler. [ 71 ] Ms. H.’s counsel submits that Ms.

H. has not been involved with Child R. for almost three years, and Child R. likely has no recall of her at all. I agree. I surmise that Ms. H.’s absence in Child R.’s life will have no negative impact on him. (

d) The history of Child R.'s care [ 72 ] I understand that for much of the time from the date of Child R.’s birth until August 5, 2019, he was in foster care. From August 6, 2019 to October 31, 2020, he was in the parties’ care, with the assistance of their nanny. From November 1, 2020, he has been in the sole care of Uncle T. [ 73 ] In essence, Child R. has been in the care of Uncle T. for the better part of his young life.

(

e) Child R.'s need for stability, given Child R.'s age and stage of development [ 74 ] Child R. is currently five years old. There is no doubt he needs stability at this tender age and stage of development. He appears to have had stability while in the parties’ care, except perhaps during the period when the parties were experiencing difficulties in their relationship, and Child R. was being shuttled between them. [ 75 ] There is no evidence to suggest that Child R. does not have stability in the sole care of Uncle T. Uncle T. testified that he is able to care for Child R. on his own.

After all, Uncle T. is seeking all parental responsibilities and parenting time. [ 76 ] Uncle T.’s counsel argues that stability under s. 37(2)(

e) can include financial stability. He points out that Uncle T. testified that he was struggling to make ends meet. He urges the court to take judicial notice of the fact that “homes that receive child support are more financially stable than homes that don’t.” [ 77 ] While on first blush, this proposition seems reasonable, it cannot be accepted as a general proposition. Unless the homes that receive child support make proper use of that support, they cannot be said to be financially stable.

There could be many reasons why some homes may be financially stable even with limited child support, whereas other homes may not, even with substantial child support. [ 78 ] There is no denial that child support is the right of the child. However, financial support is only one of many factors that may affect a child’s stability and well-being. [ 79 ] In this case, if Ms. H.’s guardianship is terminated, Child R. would lose his entitlement to child support from Ms. H.

However, I am not concerned that this would affect Child R.’s stability and well-being for the reasons I discuss below. [ 80 ] If Uncle T.’s income was insufficient on its own to support Child R., Ms. H.’s financial contribution by way of child support could have the potential to improve Child R.’s quality of life. However, the Financial Statement Uncle T. filed on January 18, 2022 indicates his Line 150 income as follows: 2018: $233,205; 2019: $235,606; and 2020: $203,295.

He testified that his 2021 income was around $203,000, but that his current income was about one-half of that, as he no longer works as a supervisor, but only as a stevedore. His actual income for 2021 and 2022 is not in evidence. It appears that since Child R. has been residing solely with Uncle T. since November 1, 2020 and Uncle T. has abandoned his claim for s. 7 expenses, he has not updated his financial information. [ 81 ] I do not accept that Uncle T. is struggling to make ends meet. His Financial Statement indicates that about one-half of his expenses relates to his residence, the 62 nd Street Property.

This is essentially a more than $1.5 million dollar asset in which he is building equity. Uncle T.’s household consists of himself and Child R. Even if, as he claims, his current income is only one-half of what he made in 2021, it is still more than $100,000. This should be more than adequate to meet Child R.’s basic needs and provide him with additional comforts and opportunities, including extracurricular activities.

I am of the view that Child R. is not at risk of “going without” in Uncle T.’s care. [ 82 ] Furthermore, given Uncle T.’s recent pattern of earned income, I have no doubt he is capable of earning more than $200,000 per year, which should be more than adequate to meet Child R.’s basic needs, and more. [ 83 ] When Ms.

H.’s counsel specifically asked Uncle T. whether he would be able to support Child R. financially, he said, “yes.” He said he will “have to make serious cuts” but that he can support Child R. financially on his own. [ 84 ] There is also the potential that if the Mother’s circumstances improve, Uncle T. could look to her for child support (see s. 147(3)).

I understand from counsel that the Father passed away recently. [ 85 ] While it is generally in a child’s best interest to have more financial resources available to support them rather than less, this factor must be balanced against other considerations affecting the child’s well-being. [ 86 ] I am satisfied that Child R.’s stability, financial or otherwise, will not be compromised in the absence of Ms. H.’s contribution. [ 87 ] It is troubling that Uncle T. repeatedly cast moral indignation against Ms.

H., insisting that she is attempting to avoid paying child support, when Uncle T., a person of sufficient means and significant earning capacity, pursues Ms. H., a mother of three (including two minor children) and a person of lesser income, solely for financial support. This is particularly so, given the very brief and tumultuous nature of their relationship. [ 88 ] Uncle T. knows, and he has admitted, that he is capable of financially providing for Child R.’s needs. He knows that circumstances between him and Ms. H. have changed dramatically from the time that the Guardianship Order was pronounced.

That is why he is seeking primary residence of Child R. and all parental responsibilities and parenting time. That is also why Ms. H. is seeking to terminate her guardianship of Child R. [ 89 ] The FRA provides for remedies where circumstances in families’ lives have changed. For example, ss. 47 and 51(1)(

b) are relevant in the parties’ circumstances. I doubt anything can be set in stone in the family law context, as families are dynamic and circumstances can change. [ 90 ] In my view, Ms. H. is not after “money,” or is running away from her financial obligations, as Uncle T. alleges. As I noted in the Jurisdiction Ruling at para. 66, Ms. H. was more than willing to take on sole guardianship of Child R. She is not abandoning her commitment to Child R. Ms. H.’s counsel characterized Uncle T.’s claim for child support as a pure “money grab.” There may be some merit to this characterization. (

f) The ability of each person who is a guardian of Child R. to exercise his or her responsibilities [ 91 ] The evidence indicates that each of Uncle T. and Ms. H. independently has the ability to exercise their responsibilities as a guardian to Child R. However, the concern is they are not able to function as joint guardians of Child R.

(

g) The impact of any family violence on Child R.'s safety, security or well-being, whether the family violence is directed toward Child R. or another family member; and (

h) Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for Child R. and meet Child R.'s needs [ 92 ] The term “family violence” is defined in s. 1, and I have set out the full definition in

Schedule II. It includes the following factors, which are applicable in this case: (

a) physical abuse of a family member, including forced confinement . . . , (

c) attempts to physically . . . abuse a family member, . . . (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, . . . (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (

e) in the case of a child, direct or indirect exposure to family violence; [ 93 ] In assessing family violence, s. 38 states that for the purposes of ss. 37(2) (

g) and (h), the court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [ 94 ] I have already discussed at some length Uncle T.’s controlling and aggressive behaviour towards Ms. H., which led to the parties’ separation, and Uncle T.’s criminal convictions. The three main incidences occurred within a very short period, namely, February 2020 to April 2020. From April 2020 to the end of October 2020, the threats and taunting of Ms. H. and her children continued. There is no question that the emotional abuse of Ms. H. is evidence of a pattern of coercive and controlling behaviour directed at Ms. H. The family violence was not directed at Child R.

Child R. was likely exposed to the family violence between the parties, as he was shuttled between them during the relevant period. There is no evidence that Child R. suffered any harm to his physical, psychological or emotional safety, security or well-being as a result of the family violence. There is no evidence that Uncle T. has taken any steps to prevent further family violence from occurring. However, the parties have separated, and at least until August 16, 2023, Uncle T. was under a Probation Order, with conditions not to have contact with Ms.

H., with certain exceptions. [ 95 ] During this difficult period, Child R. was with one or both of the parties. Child R. would have been two or three years old at the time, and would have been too young to appreciate the impact of the family violence between the parties. [ 96 ] I suspect Ms. H.’s three children had some knowledge of the difficult relationship between the parties, as they were much older than Child R. Ms.

H. testified that the first incident between the parties in February 2020 occurred in front of the children, but fortunately, her children were not at the residence when the April 21, 2020 incident occurred. She said that she does not tell her children anything, except that they are not to talk to Uncle T., as he apparently approached the children at a store.

She said her family and Uncle T. live in the same small suburban community; therefore, she and her family have to watch where they go, and what they do, and when they go to the park, they have to make sure that one of Uncle T.’s vehicles is not there. [ 97 ] Ms. H. testified that she is extremely fearful and is worried about the safety of herself and her children. She said after the April 21, 2020 incident, she “didn't sleep very much for the next couple of months.” Ms. H. related two incidences of Uncle T. breaching his no contact order by following her and her children around.

Although Uncle T. was taken into custody on one of those alleged breaches, he was not formally charged. However, Ms. H. is genuinely fearful of him. [ 98 ] The following excerpts from Ms. H.’s testimony indicates her extreme fear of Uncle T. (also see Jurisdiction Ruling, para. 67 and Exhibit 13): I was begging to get off the phone and he was not letting me off the phone, threatening me if I got off the phone, . . . he would say, . . . you can’t do that . . . you’ll be in the ground for that. You can’t disobey me like this.

You can’t defy me like this. . . . in all the other text messages to do with [Child R.] . . . he’ll say . . . you can’t come pick him up unless you talk to me on the phone. . . . it just turned to be like a total nightmare of him just trying to force me to be on the phone and force me to listen to the things he had to say, and he would

say . . . I deserve this and you owe me this . . . and tell me that you love me . . . and say goodnight to me . . . it was crazy. . . . he had said . . . who are you going to tell if your jaw is wired shut? . . . you’re going to have an accident. . . .

I should put you in the ground for the way that you’re talking . . . he made reference many times to my kids won’t have a mom and that’s going to be your fault because you didn’t want to listen . . . . . . he, at one point, had threatened my kids. . . . he had said it would cost him $20 to have a crack head run my kids over because kids get hit all the time after school. Like crazy things. . . . it was . . . non-stop. And nobody would have believed me if I didn’t record a couple of phone calls . . . it’s terrifying and I believed him.

And at one point, I had even called his brother when we were using his brother as a go-between to try to figure out a figure for the house and I didn’t want any trouble with anything. And he’d already threatened, if you go to the police, you’re dead. . . . He said I will kill you. Ask anybody. . . . I’m still scared about this. What happens when my protection order’s up this year? . . . I have text messages where he says, you just wait, never forget this. You just wait. I’ll come for you. . . .

I do not feel safe. . . . he’s so cavalier when he talks to everybody else and like it’s hard not to believe him, I guess. I don’t know what to say but I don’t feel safe. And for sure, for sure, mark my words, he will come for me again. . . . he's making such a huge deal to make sure I'm at a specific address at a specific time after telling me he's going to kill me and he's going to make it look like an accident and he's got all this help and ask anybody and it's just -- it's horrifying. I don't need that in my life and I don't need to raise my kids like that. . . . I had said, . . .

I’m going to go to my sister’s and he says in the phone call, you’re not safe. You think you’re safe at your sister’s? If you’re really scared of me then you’d be doing what I tell you to do. You’re not safe at your sister’s. And he said, well, I guess you can go to Langley to your parents’ house but wait you’re not safe there either. If I decide you’re not safe, you’re not safe. . . . So I had said: If you need help with the baby, I will come and pick him up but I’m not going there alone to drop your stuff off. You made it clear I’m not safe no matter where I go.

Let me know if you want a break and I will come get him. Stop calling me. He said: Bring my things. Bring my things. Bring my fucking food and things here. I don’t care if you bring the Pope; bring my shit. I need a helmet. I need the stroller dropped off. I need my stuff dropped off. I need those things from you today and I’m not going to ask again. Safety is your excuse. I’m furious. Keep hiding from your responsibilities, . . . you fucking piece of shit. I said: I will take him every day, if you like. I’ll even stay there at the house with him, if you want. Whatever you want. I will not be there with you.

He said: If my frozen food is thawed, kill yourself. Fuck you. I’m done playing your games. Bring my things. Drop off the bike helmet and go cut your wrists. [ 99 ] It was after all these threats that Ms. H. went to the police and turned over the recorded phone calls. When asked why she waited until the end of May 2020 to go to the police when these threats were ongoing since April 20, 2020, Ms. H. said, “[b]ecause he said he was going to kill me.” [ 100 ] The family violence in this case was directed only towards Ms. H. Although there is some evidence of threats of potential violence against Ms.

H.’s children, there is none towards Child R. [ 101 ] There is no concern that Uncle T. is impaired in his ability to care for or meet Child R.’s needs. (

i) The appropriateness of an arrangement that would require Child R.'s guardians to cooperate on issues affecting Child R., including whether requiring cooperation would increase any risks to the safety, security or well-being of Child R. or other family members [ 102 ] The parties have indicated that they cannot jointly care for Child R. As I noted earlier, Uncle T. clearly said that Ms. H. is not for him, he will find a new step-mom for Child R., and he asked Ms. H. to “sign him over.” Ms.

H. is living in fear that Uncle T. “will come for her.” [ 103 ] When asked, “would there be any risk if you were to remain as a guardian [of Child R.],” Ms. H. said: Absolutely. . . . if I am tied to [Uncle T.] in any way, there’s a risk. . . . I can’t even say what [Child R.] would be exposed to 10 years down the road, five years down the road. We’d just be back in court a hundred times. . . .

I don’t want my kids exposed to this. [ 104 ] Given the extreme toxicity between the parties and the potential high risk for further family violence, it is, without a doubt, inappropriate to put in place any arrangement that would require the parties to co-operate with each other regarding issues affecting Child R. Even if Uncle T. were allocated all of the parental responsibilities, parenting time, and primary residence of Child R., as he seeks, it still requires the parties to communicate with each other regarding child support, which includes exchanging financial information on an annual basis.

Exchanging financial information between parents/guardians even at the best of relations is challenging, let alone in the context of these parties’ toxic relationship. [ 105 ] Any future interaction between the parties will no doubt increase the risks not only to the safety, security and well-being of Child R., but also to those of Ms. H.’s children. [ 106 ] It is important to keep in mind that one of the reasons Child R. was originally removed from the Mother was due to concerns that he was exposed to violence that the Mother found herself in.

If he were to remain in the joint care of the parties, and he is exposed to family violence, he could meet the same fate of being removed by the Ministry and placed in foster care once again. That is certainly not

in Child R.’s best interests. (

j) Any civil or criminal proceeding relevant to Child R.'s safety, security or well-being [ 107 ] There is no evidence of any civil or criminal proceeding relevant to Child R.’s safety, security or well-being. CONCLUSION [ 108 ] For the reasons I have discussed, I conclude that it is in the best interests of Child R. to terminate Ms. H.’s guardianship of Child R. In my view, compelling the parties to interact with each other will increase the risk to the safety, security and well-being of Child R.; and an order terminating Ms.

H.’s guardianship will, to the greatest extent possible, protect Child R.’s physical, psychological and emotional safety, security and well-being. [ 109 ] The parties agreed that, if the court were to terminate Ms. H.’s guardianship of Child R., November 1, 2020 would be an appropriate date from which the termination should take effect. I concur. [ 110 ] Ms. H.’s guardianship of Child R. is terminated effective November 1, 2020. Therefore, from November 1, 2020 onwards, Ms.

H. is not required to pay any child support to Uncle T. [ 111 ] In terms of any retroactive child support, the following are the periods when the parties had parenting time with Child R.: (

a) April 7, 2020 to April 21, 2020 – 14 days – Ms. H.; (

b) April 22, 2020 to May 29, 2020 – 37 days – shared; (

c) May 30, 2020 to July 5, 2020 – 36 days – Ms. H; and (

d) July 6, 2020 to October 31, 2020 – 117 days – shared. [ 112 ] Ms. H. had a total of 50 days and the parties shared 154 days. According to this schedule, Uncle T. may be required to pay child support to Ms. H. In 2020, Uncle T.’s income was $203,295. Although Ms. H.’s Form 4, Financial Statement, is under seal by court order, she testified that her income is around $150,000 per year. She is not seeking any child support or s. 7 expenses from Uncle T.

As I noted earlier, Uncle T indicated to the court that he is not seeking s. 7 expenses. [ 113 ] In light of my conclusion, I believe I can dispose of all of the issues in the parties’ two applications before me. However, if the parties are of the view that there are still issues that need to be addressed, they can appear before me on October 13, 2023. Otherwise, they are at liberty to notify the judicial case managers to vacate October 13, 2023, without having to appear before me again. ORDERS [ 114 ] I make the following orders: 1. Pursuant to s. 51(1)(

b) of the Family Law Act , Ms. H.’s guardianship of Child R. is terminated effective November 1, 2020. 2. Effective November 1, 2020, the Guardianship Order is varied to read as follows: a. Pursuant to s. 51(1)(

a) of the Family Law Act , T.F. is appointed guardian of the child, R.K.T., born [omitted for publication] (the “Child”), effective August 6, 2019; b. Effective November 1, 2020, pursuant to s. 40(3)(

a) of the Family Law Act, T.F. will solely have all of the parental responsibilities for the Child, as set out in s. 41 of the Family Law Act : i. Making day to day decisions affecting the Child and having day to day care, control and supervision of the Child; ii. Making decisions about where the Child will reside; iii. Making decisions respecting with whom the Child will live and associate; iv. Making decisions respecting the Child's education and participation in extracurricular activities, including the nature, extent and location; v.

Making decisions respecting the Child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the Child is an aboriginal Child, the Child's aboriginal identity; vi. Subject to s. 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health- related treatments for the Child; vii. Applying for a passport, licence, permit, benefit, privilege or other thing for the Child; viii. Giving, refusing or withdrawing consent for the Child, if consent is required; ix.

Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; x. Requesting and receiving from third parties health, education or other information respecting the Child, except in

relation to health care provided pursuant to s. 17 of the Infants Act ; xi. Subject to any applicable provincial legislation: 1. Starting, defending, compromising or settling any proceeding relating to the Child; and 2. Identifying, advancing and protecting the Child's legal and financial interests; xii. Exercising any other responsibilities reasonably necessary to nurture the Child's development. c. Effective November 1, 2020, T.F. shall have primary residence of the Child. d. In all other respects, the Guardianship Order shall remain in full force and effect. 3.

Effective November 1, 2020, T.F. shall have all the parenting time with the Child. 4. T.F.’s application for child support, retroactive and prospective, is dismissed. _____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia

SCHEDULE I to the Guardianship Ruling of the Honourable Judge V. Chettiar, dated September 19, 2023, in the matter of T.F. and S.H. v. T.F. and D.T. (File No. F-41717) Jurisdiction Ruling issued June 14, 2023 ( T.F. v. S.H. , 2023 BCPC 260 ) and Corrigendum to the Jurisdiction Ruling issued June 20, 2023

SCHEDULE II to the Guardianship Ruling of the Honourable Judge V. Chettiar, dated September 19, 2023, in the matter of T.F. and S.H. and S.H. v. T.F. and D.T. (File No. F-41717) The following are the relevant provisions of the Family Law Act :

Part 1 —

Interpretation

Definitions 1 In this Act: " family violence " includes, with or without an intent to harm a family member, (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence;

Part 4 — Care of and Time with Children Division 1 — Best Interests of Child

Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Assessing family violence 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. Parenting arrangements 40

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child. Changing, suspending or terminating orders respecting parenting arrangements 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. Division 3 — Guardianship Orders respecting guardianship 51

(1) On application, a court may

(

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act , terminate a person's guardianship of a child.

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court Family Rules, respecting the best interests of the child as described in

section 37 [best interests of child] of this Act. (3) Subsection (2) of this

section applies regardless of whether there is consent to the application under

section 219 [persons may consent to order being made] .