L. v. L. & M. Date:, 2013 BCPC 12

Citation: L. v. L. & M. Date: 20130118 2013 BCPC 0012 File No: 0518460 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: F.J.L. APPLICANT AND: J.S.T.L. M.M.M. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.O'C. WINGHAM Counsel for the Applicant: Gordon Teichroeb Counsel for the Respondent M.M.: Katrina M. Harry & Rhaea I Bailey Counsel for the Respondent J.L.: No appearance

Place of Hearing: Vancouver , B.C. Dates of Hearing: May 15, 16, 17, 18, July 31, Aug. 3, Sept. 27, Oct. 23 & 24, 2012 Written Submissions Filed: November 20, 2012 Date of Judgment: January 18, 2013 INTRODUCTION [ 1 ] This case involves the issues of custody of, guardianship of and access to 10-year-old I.J.L. who was born on --------------. [ 2 ] The parties to this proceeding are I.'s mother, M.M.A. (formerly M), I's father, J. S.T.L. and I.'s paternal grandmother, F.J.E. (formerly L.). [ 3 ] Although the father is a party he has not participated in this proceeding.

The dispute is between the paternal grandmother and mother. Ms. A. is seeking an order that she have sole custody of I. and that I.'s primary residence be with her. She also seeks an order that she and Ms. E. have joint guardianship, but that Ms. E.'s guardianship rights be limited. [ 4 ] Ms. A supports an order that Ms. E. have generous access to I. which would include weekend access and holiday access. [ 5 ] Ms. E. seeks an order that she have sole custody and sold guardianship of I. and that I.'s primary residence be with her. She agrees that the mother should have access.

BACKGROUND/HISTORY [ 6 ] On February 2, 2005 the grandmother obtained an interim order which provided that she have interim sole custody of I. The order provided that the parents were to have reasonable access.

That order expired on March 5, 2005. [ 7 ] On May 5, 2005 a further interim order was made granting sole custody of I. to the grandmother. [ 8 ] On June 14, 2010 and November 30, 2010 orders are made, by consent, which granted the mother access to the child. [ 9 ] On April 11, 2011 a consent order was made which provided that the parties share joint guardianship of I. on the Master Joyce model and provided for holiday and other access by the mother to I. The order also provided that a custody and access report be prepared pursuant to

section 15 of the Family Relations Act . EVIDENCE [ 10 ] Ms. A.’s evidence at trial consisted of her own testimony, the testimony of her spouse, D.A., and numerous documents which showed the efforts that she has made to change her life by freeing herself from drugs and by seeking and maintaining a trade and full- time employment. [ 11 ] The grandmother’s evidence consisted of her own testimony, the testimony of her spouse, F.E., and a number of documents concerning I.'s needs. [ 12 ] The court also heard evidence from Francis Hillier, the author of a s. 15 custody and access report, Dr.

Barbara Ellen Fitzgerald, a paediatrician, and J.B., I.’s grade five teacher. Circumstances of the Mother, M.M.A. [ 13 ] Ms. A. is 34 years old. She had a troubled upbringing. She witnessed her father physically abusing her mother. She did not see her father from the age of five until she was 18 years old. Her mother and her stepfather were heavy drinkers who abused pills and intravenous drugs. Ms. A. herself started abusing substances when she was 13 years old. [ 14 ] Ms. A.’s mother and stepfather often missed paying the rent and as a result the family had to move frequently. As a result, Ms.

A. attended at least five different elementary schools. [ 15 ] Ms. A. was apprehended by the Ministry and placed in a group home when she was 14 years old after her stepfather hit her. After going into the care of the Ministry Ms. A. was caught stealing cars and was sentenced to 27 months in youth detention. She was released a few months after her 16th birthday and was again placed in a group home. Subsequently she was moved to semi independent living and eventually to independent living. [ 16 ] Ms. A. said met F.E. at Ms. E's sister’s residence. She was a teenager at the time.

She said that she, S.L. and others would go to Ms. E.’s sister's house and drink beer and smoke marijuana. She described F.E. as being there and drinking as well. She said she

observed F.E. taking pills, including Valium, muscle relaxants and sleeping pills. She and her friends would buy Valium from Ms. E. She said that Ms. E. kept rubbing alcohol in her closet which she would mix with water and drink in order to deal with withdrawals. She described Ms. E. as belligerent, mean and nasty when she was drinking. [ 17 ] After Ms. A. graduated from high school she lived with S.L. She used drugs and alcohol with him. [ 18 ] Ms. A. testified that when she found out that she was pregnant she had been clean for months from cocaine and heroin and was on the methadone program.

She said that S.L. had just been released from prison and they were selling drugs. She said that during her pregnancy she relapsed three times on cocaine but she did not use alcohol during her pregnancy. [ 19 ] Ms. A. appears to have made a remarkable turnaround in her life. She attended and completed an intensive residential treatment program at Peardonville House from June 23, 2008 to August 29, 2008. From August 29, 2008 to December 22, 2008 she lived in Columbia Place, a halfway house operated by the Elizabeth Fry Society.

Documentation filed at trial shows that she participated fully in that Program and adhered to all of the house rules. [ 20 ] Ms. A. met her new spouse, D.A., in 2008 and began dating him in 2009. Both she and D.A. attended Narcotics Anonymous and Alcoholics Anonymous meetings and continue to do so. They also attend church weekly. They are both on the methadone program, but Ms. A. has reduced her dose to 20 ml. [ 21 ] She is currently employed as a journeyman roofer. She participated in the Women Working Wonders Program which is a government program to get women into the trades.

She has her Red Seal in that trade which means that she can work in Canada, the United States and Mexico. She also has her St. John Ambulance certificate which includes CPR and emergency first aid. [ 22 ] The last time that Ms. A. was charged with a criminal offense was in 2007. She received a sentence up to two years less one day and served 10 months of that sentence with the rest served on parole. It was for break and enter and related to her drug use. [ 23 ] Ms. A. testified that when she first began getting I. on regular access visits she noticed that I.'s reading was delayed.

She obtained funding from the (redacted) band and had I. assessed at Sylvan Learning Academy. When I. was assessed she was assessed at a grade one reading level. At the time she was finishing grade 3. Ms. A. obtained funding from the band to pay for the Sylvan program. I. has now caught up to her peers in reading. [ 24 ] Ms. A.’s evidence was that she plans to continue I. in the Sylvan learning program.

She has secured further funding from the (redacted) band to pay an additional $2500. [ 25 ] A speech language assessment report from the Vancouver School Board dated June 25, 2008 recommended that I. would benefit from continued support with her speech. The report indicates that in February 2008 I.’s speech sounds were judged to be moderately delayed with a number of sound substitutions. Ms. A. testified that she uses vocabulary from books which she purchases to assist I. with her speech. [ 26 ] Ms. A.’s evidence is that I. is asthmatic and has two inhalers.

Although I. does not need those inhalers everyday her lung capacity is not as good as it should be. She testified that F.E. told her that I.'s doctor said that I. was overweight. As a result of this Ms. A. began jogging and playing Frisbee and soccer and swimming with I.. [ 27 ] Ms. A. has facilitated access between I. and I.'s father, S.L. in the past. She plans to continue to do so in the future. She acknowledged the bond of love between F.E. and I. and is willing to facilitate ongoing access between them, as well. [ 28 ] Ms.

A. plans to enroll I. in the (redacted) Elementary School which is located in Coquitlam near to where she lives. She agrees that I. has learning needs that are greater than the needs of other children her age. Her plan is to continue I.'s involvement in the Sylvan learning program. She has called I.'s current school, (redacted) Elementary, for their recommendation. Their response, she said, was that they are not in the referral business. (redacted) Elementary School told her that they would assess I.'s needs and that they have afterschool programs. [ 29 ] Ms.

A. recognizes that it may be a hard transition for I. to change schools. She said that she moved Coquitlam because she could rent a nice two bedroom condominium apartment for $800 per month which is less than what she would have to pay in Vancouver. She also described her neighborhood as a nice neighborhood and expressed concern that there are a lot of drug addicts in the area of I.’s current school ((redacted) Elementary) in Vancouver. [ 30 ] Ms. A. said that she had not shown Dr.

Fitzgerald's report to the Coquitlam school because she does not believe that she I. suffers from fetal alcohol spectrum disorder as that report concludes. She reiterated that she did not drink alcohol when she was pregnant with I. She acknowledges that I. has issues and she wants to know why she has those issues. She said that she had been contacted by Sunny Hill Hospital about an assessment and stated that she was willing to follow up in order to get I. properly diagnosed. [ 31 ] Ms. A. is of aboriginal heritage. She is a member of the (redacted) band, which is located north of Prince George, British Columbia.

Ms. A. has placed I. into an aboriginal summer camp and recognizes the importance of her aboriginal heritage. [ 32 ] At the time Ms. A. testified she was attending night school for a certificate and then planned to get attend a four-year bachelor program at BCIT leading to a degree in construction management. If she attends school full-time she will receive a living allowance from the (redacted) band. [ 33 ] Ms. A. agrees that she and F.E. do not communicate very well. She said that she believes it is important that she and Ms. E. get along and share information concerning I..

She said that she was prepared to use a communication log as they have in the past as long as it is not used for “slinging insults” that her daughter could read. [ 34 ] Transcripts of text messages sent by Ms. E. and recordings of telephone messages that she left for Ms. A. confirm the conflict

that exists between the two. Those messages, which were sent during a long break in the trial were clearly abusive and were filled with vulgarities and profanities. Circumstances of D.A. [ 35 ] D.A. is the spouse of M.A. He is 32 years old and is employed as a registered roofing apprentice. He and Ms. A. met at the (redacted) Church. [ 36 ] Mr. A. is also a recovering heroin addict. He had been clean for one year before he and Ms. A. met. He said that early in their relationship he and Ms. A. attended a lot of NA and AA meetings together. [ 37 ] Mr. A.’s evidence was that he and Ms.

A. now go to meetings approximately once per week. Mr. A. met I. about one month after he met Ms. A. He described his role now in relation to I. as being more her buddy. He said that he told her that she has a dad. He acknowledged that she has a great relationship with her father and he allows Ms. A. to do any disciplining of I. He said he has no difficulty with I.'s father. [ 38 ] Mr. A. began using cocaine and heroin when he was 18 years old. His evidence was that he has been clean and sober for little over six years although he said he smoked marijuana while he was in jail.

With respect to his criminal history Mr. A. said that he has a record for theft and robberies. He said his record started when he was 18 or 19 years old and that the robberies were now 10 years ago. He said his last criminal offense was in 2002. He is still on the methadone maintenance program and provides regular drug screens. He has been working at R. Roofing for about eight months. [ 39 ] Mr. A. gave his original evidence early in the trial but was recalled in October 2012. At that time it became apparent Mr. A.’s evidence concerning his history of drug use in criminal activity was incorrect.

When asked on cross-examination about the discrepancies in his evidence he was somewhat evasive and defensive. On the previous occasion he was asked about his criminal record and said that his last criminal offense was in 2002. When his criminal record was put to him, and it that showed a more recent conviction relating to drugs his answer “I was never asked if I had charges about drugs". It was pointed out to him that the last conviction for theft was in 2004 although his evidence previously had been that it had been in 2002. He explained that at the time he thought it was 2002. F.E. [ 40 ] Ms.

E. is 55 years old. She was born on [DOB] in Rocky Mountain House. She was raised in Saskatchewan and is a member of the (redacted) Band. [ 41 ] Ms. E. has also had a difficult life. She attended residential school when she was eight years old and was there for three years. After that she went to school on the reserve and got as far as great seven. She then quit school in order to look after her mother. She described her life as hard. She said she was sexually and was physically abused as a child. She left home when she was 17 years old. [ 42 ] S.L. is Ms. E.’s only child.

She said she did not want to have a girl because she did not want her to end up like her. [ 43 ] Ms. E. moved to Vancouver approximately 30 years ago. She described herself as being an alcoholic since she was 17 years old. She lived on the downtown Eastside of Vancouver. She was an alcoholic when she had her son S. When she was asked about drug use Ms. E. said that she had tried "everything" but that she never got hooked. She guessed that alcohol was her problem. She agreed that she has drunk rubbing alcohol. She said that everything that she did in the past was before her granddaughter was born. [ 44 ] Ms.

E. testified that she stopped drinking about 10 years ago. She and her husband, F.E., did not obtain counselling or go to treatment; they simply quit drinking and stayed away from their alcoholic friends. [ 45 ] Ms. E. does not trust her son and Ms. A. She said that it will take her a long time to trust Ms. A. and her new husband. She described her son and Ms. A. as being partners in crime in the past. She said that when her son went to jail Ms. A. would come and stay with her. She said that despite that she just can't get along with her now. She considers Ms. A. to be a “selfish greedy woman”.

She agreed that the voicemail played in court with the vulgar and abusive language was her. She said that she uses that language when she speaks to Ms. A. because "I hate her". Despite those messages Ms. E. said that she does not always communicate with Ms. A. in that manner. She says that the children were not around when she spoke to her in that fashion and that she would not do so if the children were around. [ 46 ] Ms. E. said that I. came to live with her when her mother and her father, S.L., were arrested and went jail.

She said I. was taken into care by the Ministry and was placed in her home and she then applied for custody. She said she did not know how to look after a baby girl. She started to see a counselor herself. She testified that she believed that she would have to look after I. until she grows up as she would never trust her parents again. She said I. has been in art therapy and she has been seeing a speech therapist since she was four years old. [ 47 ] Ms. E. and her husband F.E. have taken programs concerning fetal alcohol spectrum disorder.

She said that they learned a lot from these programs and that she now knows that children who suffer from that disorder need strict structure and the same routine. Ms. E. also has two other of her grandchildren in her care. One of those children has also been diagnosed with fetal alcohol spectrum disorder and it is suspected that the other child suffers from that disorder. [ 48 ] Ms. E. acknowledged that the court proceedings and the conflict between her and Ms. A. upset I. She said that I. hopes that she and Ms. A. could be friends but that Ms. A. lies to her that she can't take that anymore.

She quoted I. as saying to her "if you win me can I still go to my mom’s?"

[ 49 ] Ms. E. described I. as improving a lot at school this year. She described her as having Bs and that she has only received one phone call from her teacher this year. That related to I. swearing at one of the girls in school. [ 50 ] Ms. E. said that I. has received speech therapy from the Vancouver School Board. She said that I. has friends that she has known since preschool and that they are very close. She described I. as being a little overweight and that her doctor told her that I. should go on a diet. Both Ms. E. and her husband speak Cree.

She described I. as understanding a lot of Cree and that she can speak Cree. [ 51 ] Ms. E. became very upset while testifying in court about when she learned that Ms. A. was going to be having a girl instead of a boy. She said "I don't trust S. or M. They lied about having a boy. It ruined my life." Ms. E. appeared to be worried that I. might suffer the same abuse that she suffered when she was a little girl. [ 52 ] Ms. E. acknowledged that she discusses court with I. all of the time. She says that she tells I. that her mother takes her to court and that she wants I. back.

In relation to her communication with Ms. A. she said "I hate her still. She pushed me so far away. I expect a thank you letter from her. She's nothing to me. She's just the mother of my granddaughter." [ 53 ] With respect to ongoing contact between I. and her mother, Ms. E. said that she would never deny I. her parents but that she does not know D. and it is going to take a long time for her to trust Ms. A. and D.A. [ 54 ] Ms. E. agreed that there are things that she wrote in the communication log between her and Ms. A. that her granddaughter I. should not read.

She said, however, that I. knows not to open the book and that she does not think that I. has read the book because it is not her book. She says she does not swear when I. is around. [ 55 ] Ms. E. testified that she takes marijuana pills, Valium, antidepressant pills and Oxazepam. She said she has been taking Valium since 2000 and that she takes it when she needs it. The prescription is for three times per day. She has been taking Oxazepam three times per day since 2000, as well. [ 56 ] Ms. E. admitted that Ms.

A. and her son were drug addicts and that alcohol was not a concern with them. [ 57 ] She agreed that Sylvan Learning had helped I. F.E. [ 58 ] F.E. is F.E.'s husband. Two of the grandchildren in his home, F.(1) and F.(2), are his son’s children. They were in the care of the Ministry before they came into his and Ms. E.’s care. Mr. and Ms. E. now have custody of those children under the Family Relations Act . Mr. E. said that the plan is that he will have F.(2) and F.(1) until they are 19 years old. F.(1) has been living with them for almost 6 years and attends the same school as I.

F.(2) is in preschool. [ 59 ] Mr. E. expressed concern that he only receives $278 per month from the government for the children which, he said, is "way less" than what foster parents received. He and Ms. E. and the three children live in native housing. Their residence is a four-bedroom residence and they have been there for three years. I. and F.(1) share a bedroom. [ 60 ] Mr. E. agreed that on May 16, 2011 he called the Ministry in reference to receiving only $125 per month per child. The Ministry worker could hear a woman's voice shouting and screaming in the background. The worker asked Mr.

E. if that was F.E. and he replied that it was. [ 61 ] Mr. E. testified that he and F.E. have been together for 10 years although they originally met in the 1980s. Mr. E. is aboriginal. He is from the (redacted) band in ---------, Alberta. He is 58 years old. He attended residential school when he was a child. [ 62 ] Mr. E. is a recovered alcoholic. He did not raise his son F.(3) as he was still drinking. It has been over 10 years since he and F.E. quit drinking. [ 63 ] Mr. E. testified that his alcohol problems began right after attending residential school.

He said he was 12 or 13 years old when he went to foster home from residential school. He began struggling with alcohol when he was 18 years old. He met Ms. E. in 1980. [ 64 ] Mr. E. has a criminal record with at least one serious offense. His criminal record consists of impaired driving in the 1980s, three assaults in the 1980s, and a manslaughter conviction in 1990 for which he was sentenced to four years in prison. He said that in total he has spent approximately 14 years of his life in jail. He says that the last time he was charged with an offense was over 10 years ago and he forgets what it was for.

He said all of his charges were alcohol related. [ 65 ] Neither he nor Ms. E. received counselling for their alcohol abuse. They simply quit drinking. Mr. E. said that he and Ms. E. do not permit any alcohol use in their home although he agrees that he and Ms. E. smoke medical marijuana outside on the balcony of their home. Both he and Ms. E. are members of the Compassion Club which dispenses medical marijuana for pain. [ 66 ] Mr. E. agreed that Ms. E. and Ms. A. swear at each other and that there is no respect from either side. He was resentful that Ms. A. has not helped financially with I.

He said he has never heard of her being grateful to him and Ms. E. for looking after I. J.B. [ 67 ] J.B. is I.’s teacher. I. is currently in grade 5. Ms. B. was I.'s teacher in kindergarten, as well. Ms. Bannister testified that because Dr. Fitzgerald has diagnosed I. as suffering from fetal alcohol spectrum disorder the Vancouver School Board has given extra resources in relation to I. in the form of money to hire more resource persons. She described I. as taking several months to transition to a new

teacher and said that that is one reason why I. has stayed in her class. Ms. B. said that it takes I. time to develop trust. She described (redacted) Elementary School as having more resources because it is an inner-city school. She said the school has an extra aboriginal resource teacher because there is a larger aboriginal population at the school. They also have an aboriginal support worker. There is one half resource teacher per class and one support worker per class. In addition, the classes are small. [ 68 ] Ms. B. is aware that Ms. A. has been taking I. to Sylvan Learning Academy.

She testified that things are now going better than ever with I. at school, certainly behaviorally, as there is less conflict with her peers. She also said that I. is working a lot harder and is doing quite well and described her as happy and that said that her confidence is up. [ 69 ] Ms. B. agreed that there will be a switch for I. at some point to another school and that she will have to get used to it. She said that she would do anything to make the transition smooth. She said the other school would have access to all of I.'s records and would have her support. Dr. Barbara Ellen Fitzgerald [ 70 ] Dr.

Fitzgerald was qualified as an expert in developmental pediatrics. She works at Sunny Hill Hospital. Three reports (dated January 10, 2008, April 30, 2009 and February 10, 2010) were prepared concerning I., Dr. Lopez prepared the first report, while Dr. Fitzgerald prepared the latter two. [ 71 ] Dr. Fitzgerald testified that she works almost exclusively with prenatal exposure to substances, mainly illicit drugs and alcohol. She teaches UBC medical students about fetal alcohol spectrum disorder.

Her evidence was that the four components to a diagnosis of fetal alcohol spectrum disorder are: (1) impaired growth; (2) specific facial features; (3) effects on the brain as the brain develops from day one of the pregnancy; and, (4) acknowledgment of prenatal alcohol exposure. [ 72 ] In considering whether to make a fetal alcohol spectrum disorder diagnosis she looks for subtle effects such as common sense and intelligence, the use of good judgment and cause-and-effect reasoning.

She said that evidence relating to this may not be obvious until the age of eight or nine years old as the brain really begins to change at that age. [ 73 ] On cross-examination Dr. Fitzgerald agreed that Dr. Lopez’ report dated January 10, 2008 indicated that the grandmother (Ms. E.) had reported that at the time of pregnancy I.'s mother was using heroin and cocaine but there was no history of alcohol abuse. Dr. Fitzgerald testified, however, that when she was preparing the April 30, 2009 report Ms. E. provided the information for the report which referred to M. is having a long-standing drug and alcohol habit.

She said that she has to assume that people are telling her the truth; that it is not her experience that people want to have a fetal alcohol spectrum disorder diagnosis made. [ 74 ] Dr. Fitzgerald agreed that there was a marked difference between her reports and the report of Dr. Lopez. She stated that all that she can say is that she takes her own history. She said that F.E. told her that S.L. and she had seen M. consume hard alcohol during her pregnancy with I. She was not concerned about the veracity of the information despite the custody battle between the parties.

She said, however, that "it is not so much the label that is important. It is getting the child's needs met”. She concluded that I. is a child with special needs (learning and socialization behaviour). [ 75 ] Dr. Fitzgerald said that in I.'s case it is difficult to say how much of her difficulties are related to early trauma, attachment and how much may be related to alcohol. She said that there is more testing to be done but that she does make the independent diagnosis that I. needs help and that it is not in her best interest not to get that help.

She concluded that if the mother says there was no alcohol during pregnancy she cannot diagnose fetal alcohol spectrum disorder. Despite that she said that she can write it so that I. gets the help she needs in any event. She will be continuing to see I. at Sunny Hill. Frances Hillier [ 76 ] Frances Hillier is a family justice counselor. She prepared a report pursuant to

section 15 of the Family Relations Act concerning the custody and access of I. That report was filed January 10, 2012. In preparing the report Ms. Hillier spoke with F.E., M. A., I., S.L. and D.A. She also reviewed various documentation including the Sunny Hill Health Centre reports. [ 77 ] Ms. Hillier reviewed the various factors set out in

section 24 of the Family Relations Act . With respect to the health and emotional well-being of I. she noted the findings of the Sunny Hill Health Centre reports concerning I.’s speech delays, her struggles academically and behavioral concerns. She noted that when she met with I. there were no signs of speech difficulties and that I. interacted with her in a manner normal for a nine-year-old.

She described I. as quietly friendly and willing to show her around her home and share with her what she was doing. [ 78 ] With respect to I.'s views she stated that while I. was happy to chat with her and was open to sharing her thoughts generally she did not want to have input into how she spends time with each family member. I. expressed being comfortable at her grandmother's residence but also getting along easily with her mother and her stepfather. She also related that she enjoyed spending time with her father and her new little sister. Ms.

Hillier concluded that I. does not want to make any decisions or choices between her family members. [ 79 ] With respect to education and training Ms. Hillier noted that I. is receiving help as a special needs student but that the school apparently has seven special needs students with a one half time assistant. She noted that Ms.

A. has been taking I. to Sylvan Learning for extra assistance during her weekend time. [ 80 ] With respect to love affection and similar ties she noted that I. has a number of important people in her life including her grandmother, the other two children in her grandmother's home and her mother and stepfather as well as her father and her new little sister (S.L’s child). She concluded that all of these relationships are important to I.

[81] With respect to the issue of parental capacity Francis Hillier was familiar with the social backgrounds of the various parties tothis dispute. She described the relationship between Ms. A. and Mr. A. as quietly supportive and that I. talks with both of them in apositive way. She noted that Ms. A. now appears to be taking a responsible course in settling her own situation and that the mainproblem has been that Ms. A. and Ms. E. have not been able to work well together to accomplish Ms. A. becoming more active in I.'scare and education. [82] Ms. Hillier noted that Ms.

E. has had I. in her care on a primary basis for most of I.'s life and that while it may not have beeneasy for her she has done it willingly and works with various services to try meet I.'s needs. She also noted that Ms. E. and her husbandhave two small children in their care in addition to I. and that both of these children have special needs that require considerable attention. [83] On the issue of capacity Francis Hillier concluded that both parties are currently providing an appropriate living arrangementfor I. and have a sincere wish to provide for I. [84] At pages 5 and 6 of her report Ms.

Hillier summarized the situation as follows: All family members have a history that has involved substance abuse, violence and general upheaval in family relationships. There hasbeen considerable involvement of various agencies such as MCFD, Sunny Hill Hospital and the school system as the family has workedthrough trying to provide for I.

Currently everyone appears to be in the most settled situation they have ever experienced……. …..Both are to be congratulated on working hard and achieving a tremendous improvement in their own lives so that they can offer I. andthe other small children a much better chance moving forward. I hope they can both recognize the need to work with the other positivelyso that I. can benefit from their love….. ……It would appear to me that there are good reasons both keeping the current arrangements and for changing them.

The child wouldprobably do fine in either location given the current level of support and concern that both M. and F. have for her. With good planning I.could handle an adjustment to her living arrangements. I see no reason why an interim adjustment should not occur that would give momsome of the week time responsibility around school and school work, while also allowing F. to have some relaxed weekend time with I..Moving the exchange time to perhaps Saturday night to Wednesday at school with F. and Wednesday after school to Saturday aftersupper with mom, would provide for this. [85] Ms.

Hillier notes that in Vancouver the change in school is at the end of grade 7 but where Ms. A. lives, in Coquitlam, theschool system has children changing schools at the end of grade 5 and attending middle school in grades 6 to 8. High school starts ingrade 9. Given those facts Ms. Hillier suggests that a change in school not occur before the end of grade 5. She notes that if there is to bea change in school for I. this would need to be accomplished with significant transfer between schools. [86] In her evidence Ms. Hillier agreed that it would be in I.'s best interest for Ms. E. and Ms.

A. to learn to work cooperativelytogether. LAW [87] In any proceeding involving issues of guardianship, custody and access to children, the focus of the court must be on the bestinterests of the child.

Section 24 of the Family Relations Act provides as follows: 24(1) When making, varying or rescinding an order under this part, a court must give paramount consideration to the best interests ofthe child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child'sneeds 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; (

c) the love, affection and similar ties that exist between the child and other persons; (

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 rightsand duties adequately. [88] The best interest test was considered by Mr. Justice McIntyre in King v. Low, (SCC), [1985] 1 S.C.R. 87

(SCC). At paragraph 27, Mr. Justice McIntyre stated: I would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other.

The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. ANALYSIS Health and Emotional Well-Being of the Child [ 89 ] In her report dated April 30, 2009 Dr.

Fitzgerald diagnosed I. as suffering from fetal alcohol spectrum disorder. In her evidence she made it clear that an important part of that diagnosis is evidence that the mother of the child consumed alcohol while pregnant. The information that Ms. A. had consumed alcohol during her pregnancy came from Ms. E. The reliability of that information is questionable given that Ms. E. is reported to have told Dr. Lopez, the author of the January 10, 2008 report that while Ms. A. had used illegal drugs during her pregnancy alcohol was not an issue.

The evidence at trial demonstrated that there is a great deal of conflict between Ms. E. and Ms. A. On more than one occasion in her evidence Ms. E. said that she hated Ms. A. The text messages and the voice recordings introduced in evidence at trial corroborate that fact. [ 90 ] Regardless of whether I. suffers from Fetal Alcohol Spectrum Disorder, the evidence indicates that she has special needs. Dr. Fitzgerald testified that if the mother says that she did not consume alcohol drink pregnancy she cannot diagnose fetal alcohol spectrum disorder.

She was clear, however, that it is not so much the label that is important is getting the child's needs met. She described I. as a child with special needs in both the areas of learning and socialization. [ 91 ] I. is in grade 5 at (redacted) Elementary School in Vancouver. She has been attending that school since kindergarten. The teacher there knows her and is aware of her needs. The teacher, Ms. B., described I. as taking several months to transition to a new teacher and that it takes time for her to develop trust. Ms.

B. said that the (redacted) Elementary School has more resources available because it is an inner-city school. [ 92 ] Ms. B. is aware that Ms. A. has been taking I. to the Sylvan Learning Academy. While she is not experienced with that Academy she said that things are now going better than ever with I. I.'s behaviour at school has improved and she has less conflict with her peers. She described her as working a lot harder and said that she is doing well and is happy. She also said that I.'s confidence is up. [ 93 ] Ms.

B. agreed that I. will have to make the switch to another school at some point and said that she would do anything to assist with that transition. [ 94 ] If I. remains at (redacted) Elementary School she will be there until grade 7 and after that she will be in high school. If she moves to a school in Coquitlam she will change schools at the end of grade 5 to attend middle school and then again after grade 8 she will change schools to attend high school. Ms. B.’s evidence was that I.'s designation as a special needs student will follow her to any school that she transfers to.

Provincial funding will then be allocated to that school to be used as that school sees fit. [ 95 ] I. is described as being somewhat overweight. Ms. A. has involved her in physical activity and Ms. E. has said that she is going to put I. on a diet. Views of the Child I. was interviewed by Ms. Hillier, the custody and access report author. It was clear from Ms. Hillier's report that I. does not wish to have any input into how much time she spends with each of the parties.

The report indicates that she is comfortable at her grandmother's residence and that she also gets along easily with her mother and her stepfather and she enjoys spending time with her father. Love, Affection and Similar Ties that exist between the Child and Other Persons [ 96 ] The evidence establishes that I. has a close and loving relationship with both her grandmother, F.E. and with her mother, M.A. There is clearly a bond of love and affection between her and both her grandmother and her mother.

In addition, she has a relationship with her grandmother's husband, F.E., and his two grandchildren who live in the same residence. She also has an ongoing relationship with her father, S.L., and she has established a relationship with her stepfather, D.A. [ 97 ] Whether I. resides primarily with her grandmother or with her mother I am satisfied that the evidence shows that both the grandmother and the mother recognize the importance of the other in I.'s life and will facilitate access to I. by the other party despite the conflict and bad feelings between them.

Education and Training for the Child [ 98 ] I. is now halfway through grade 5. She is receiving assistance after school and is being taught by a teacher who has experience with her. She has also been attending Sylvan Learning Academy when she has been visiting with her mother. Her teacher has noticed an improvement since she has been attending Sylvan Learning Academy, in particular in relation to her behaviour and her interaction with her peers. She is working harder and is doing well. Her marks have improved and her reading has improved. Her teacher describes her as

happy as having increased confidence. The Capacity of the Parties to Exercise Guardianship, Custody and Access Rights and Duties Adequately [99] Despite her history of alcoholism and her difficult upbringing Ms. E. has demonstrated that she is a caring grandmother capableof providing for the day-to-day needs of I. She has sought out the assistance of the Sunny Hill Health Centre for Children and she and herhusband have attended fetal alcohol spectrum disorder classes in order to better understand what they believe to be I.'s disability. Also,despite her negative feelings towards Ms. A., Ms.

E. has consented to orders in the past that Ms. A. have increased access to I. and sherecognizes the importance of Ms. A. in I.'s life. [100] Ms. E. has two other young, special needs children in her care. One of those children has been diagnosed as suffering from fetalalcohol spectrum disorder. The evidence of Ms. E. is that it is suspected that the other child also suffers from that disorder. Both Ms. E.and Mr. E. are aware of the difficulties in raising children who suffer from fetal alcohol spectrum disorder. [101] Mr. E. and Ms. E. are regular users of medically prescribed marijuana.

The reasons for that use are not entirely clear, althoughthere was a reference to it being for pain. [102] Ms. E. agreed that she also takes up to three Valium per day and three Oxazepams per day. [103] Ms. E. and Mr. E. have recently entered into a six month contract with the Vancouver Aboriginal Child and Family ServicesSociety which will provide them with regular respite from the children in their care. [104] Ms. A. has also had a difficult life. She had a difficult upbringing and has a history of drug addiction and criminal activityassociated with that addiction.

To her credit she has attended drug treatment and has remained clean from drugs for a number of yearsnow. She has pursued her education and obtained a Red Seal Journeyman certificate in roofing. She plans to attend BCIT to obtain herdegree in construction management. She has become actively involved in I.'s life and has shown great interest in assisting I. to deal withher difficulties. She has sought out funding from the (redacted) Band for I. to attend Sylvan Learning Academy where I. has apparentlythrived.

She has moved with her husband to Coquitlam into a two-bedroom condominium and has looked into schooling for I. in thatcommunity. [105] Ms. A. did not complain of any physical or other impediment to acting as a full-time parent to I. Despite her conflict with Ms. E.she recognizes the importance to I. of maintaining regular access to Ms. E. and is prepared to continue to facilitate that if I. comes to livewith her primarily. She is also prepared to facilitate access between I. and I.'s father, S.L. [106] The main problem appears to be the inability of Ms. E. and Ms.

A. to cooperate with each other to put aside their feelings ofmistrust and, in Ms. E.'s case, her strong dislike for Ms. A. in order to work together for I. CUSTODY AND RESIDENCY [107] Counsel for Ms. A. has referred to a number of decisions for the proposition that where other things are equal children belongwith one or both of their natural parents (see, Seymour v. Seymour (1994), B.C.J. No. 1970 (BCSC); Hardcastle v. Huculak (1978), S.J.No. 701 (Sask. C.A.)). In Chera v. Chera (2008), B.C.J. No. 1807 (B.C.C.A.) Smith, JA stated, at paras. 36 - 37: 36 The trial judge referred to the test outlined in A.L. v.

D.K., 2000 BCCA 455, 190 D.L.R. (4th) 108, where Newbury J.A., relying onthe earlier comments in King v. Low, (SCC), [1985] 1 S.C.R. 87, concluded that custodial claims by one or both parentsshould not be lightly set aside in favour of custodial claims by third parties (e.g., grandparents, adoptive parents) unless there is a clearreason why one or both parents cannot raise their child. 37 The trial judge found that after the grandmother, the child was most bonded to his mother. However, in weighing the child'semotional attachment to his grandmother against his long-term interests with Ms.

Chera, he concluded that given the child's young agehis interests would best be met by Ms. Chera assuming sole custody and guardianship of the child. This was particularly so, he found, inview of the unhealthy relationship between the child and the Grandparents who indulged the child and undermined and marginalized Ms.Chera's attempts to provide the child with an appropriate structure and discipline. [108] I. has lived for most of her young life in the primary care of her grandmother.

There is no question that she has a strong bond oflove and affection with her grandmother and she has established a similar bond with her mother since her mother has come back into herlife. [109] Ms. A. is now 34 years old. She has been clean from drugs for at least five years. She has gone through drug treatment and shetakes her recovery seriously. She is living a healthy and productive life, has ambitions to become a construction manager and wishes tobe an involved and active parent for I. [110] Ms. E. is 55 years old. She deserves credit for stepping forward and assuming full-time care of I. when Ms.

A. and I.'s father,S.L. were active in their drug addiction and their criminal activity. She and her husband care deeply for I. and have done their best toprovide for her needs since she has been in their care. [111] Both Ms. E. and Mr. E. a regular users of medical marijuana. The evidence indicates that that is for pain although there is noevidence as to why or what the source of that pain is. Ms. E. is also a daily user of Valium and another associated drug, Oxazepam.There was no evidence as to why she has been prescribed those drugs. [112] Both Mr. E. and Ms.

E. have responsibility for two other young children one of whom has been diagnosed with fetal alcoholspectrum disorder and the other is suspected of suffering from the disorder. They clearly have their hands full.

[113] Given all of the circumstances I conclude that I.'s best interests in the long term are to live primarily in the residence of hermother, M.A. I. is only 10 years old. Ms. A. has the energy and desire to do what is necessary to ensure that I.'s needs are met over thenext several years until she reaches adulthood. I. should have regular and frequent contact with her grandmother. Ms.

A. has made it clearthrough her words and her actions that she will take the steps necessary to ensure that I.’s needs are met including consulting with SunnyHill Health Centre, continuing with Sylvan Learning and facilitating the ongoing relationship between I. and her grandmother. Sole Custody v. Joint Custody [114] Ms. A. is seeking an order that she have sole custody of I. and that the parties share a modified form of joint guardianship. Ms.E. seeks an order that she have sole custody and sole guardianship. [115] There are no presumptions either for, or against, a joint custody order.

The only issue for a Court to consider when decidingwhether a joint custody order should be made is whether such an order is in the best interests of the child in question. (Robinson v. Filyk(1996), (BC CA), 28 B.C.L.R. (3d) 21 (B.C.C.A.); M.J.S. v. L.S., [2001] BCSC 820; L.E.G. v. A.G., [2002] BCSC970). [116] The ability of the parties to communicate with one another is not a determining factor in considering whether a joint custodyorder is appropriate, but it is an important factor to be considered. (See Massaar v. Klotild-Houser, [1999] B.C.J. No. 1960 (B.C.S.C.)). [117] In B.(T.I.) v.

B.(D.I.), 2008 BCCA 49 , [2008] B.C.J. No. 179 (B.C.C.A.), the Court of Appeal confirmed an order forsole custody in a case where the trial judge had found that the parties were unable to communicate. At paragraph 18, Huddart, JA stated: 18. The evidence is overwhelming that these two parents could not communicate sufficiently to permit them to co-parent two younggirls.

That inability to communicate, regardless of the reason giving rise to it, precluded an order for joint custody at the time of the trial,and made joint guardianship problematic. [118] Two examples of cases where the Supreme Court of this Province has held that an inability to communicate with respect to thechildren and animosity between the parents may make joint custody inappropriate are J.S. v.

G.J.S., [2005] BCSC 1373 and Enns v.Enns, [2007] BCSC 500. [119] In Enns the court considered a case where the father was found to have displayed an arrogant, high-handed and insensitiveapproach in his dealings with the mother.

In J.S. the court found that there was little prospect of co-operation, consultation and jointdecision-making and that joint custody would, in view of the animosity between the parties, increase the opportunities for conflictbetween the parties and expose the children to greater stress. [120] In this case, the evidence makes it clear that the parties are unable to effectively communicate concerning I.'s best interests. Alarge part of this arises from Ms. E.'s dislike for Ms. A. The text messages and voicemail messages that she left for Ms. A. were vulgar,obscene and insulting.

Some of the entries in the communication log were also inappropriate and there is a concern that I. could readthose despite Ms. E.'s belief that she would not. Even in her evidence Ms. E. was unable to restrain herself from showing her dislike forMs. A. [121] A joint custody order which requires cooperation and consultation between the parties would only lead to further conflict anddisagreement. Such an environment would not be in the interests I. [122] The best interests of I. lie with an order that her mother have sole custody of her.

GUARDIANSHIP [123] I am of the view that there should, however, be an order that there be a limited form of joint guardianship. This will give Ms. E.the right to obtain information which she desires concerning I.'s welfare and the opportunity to be aware of and attend important events inI.'s life. ACCESS [124] It is in I.’s best interests to continue her relationship with her grandmother. That can be maintained by regular and frequentaccess as well as extended access during holiday periods.

SUMMARY AND ORDERS Custody [125] There will be an order that the mother, M.A. shall have sole custody of I. Guardianship [126] Ms. A. and Ms. E. will share joint guardianship. Ms. E.'s guardianship rights will, however, limited to the following:

1. Ms. E. shall have the right to be informed of the names of all medical and dental and other healthcare practitioners who are involved in I.'s life; 2. Ms. E. shall have the right to contact any such medical dental and other healthcare practitioners and to obtain copies of I.'s medical and dental records; 3. Ms. E. will have the right to consult with alternative caregivers and teachers of I.; 4. Ms. E. will have the right to be informed of events at I.'s school or alternate care facility so that she may attend at any such events; 5. Ms.

E. will have the right to be informed of any parent-teacher nights so that she may attend; 6. Ms. E. shall have the right to be consulted with respect to any significant health issues relating to I. School and Residency [ 127 ] The evidence at trial indicates that it is in I.'s best interest that any transfer to a new school not occur until the end of the school year. I. is to continue attending (redacted) Elementary until the end of the current school year. [ 128 ] Until the end of the school year I. will reside at Ms. E.’s residence from Monday night to Thursday night and at Ms.

A.’s residence from Friday morning until Monday morning when school is in session. During Spring Break from school this year I. will reside with Ms. A. [ 129 ] At the end of the school year I.’s primary residence will be with Ms. A. Access [ 130 ] Beginning at the end of the school year Ms. E. shall have reasonable and generous access to I. which will include alternate weekends from Friday night until Sunday night, one half of the Christmas holidays from school, one half of the Spring break from school and one month every summer. Ms.

E. shall also have other access to I. as may be agreed between the parties. __________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia