B.C.H. v. J.D.R. Date:, 2012 BCPC 88

Citation: B.C.H. v. J.D.R. Date: 20120313 2012 BCPC 0088 File No: 09-1849 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B.C.H. APPLICANT AND: J.D.R. RESPONDENT EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Appearing on their own behalf: B.C.H. Counsel for the Respondent: J. M. Wilson Place of Hearing: Sechelt , B.C. Date of Judgment: March 13, 2012 [ 1 ] THE COURT: This is my ruling.

B.A.H. is the three-year-old daughter of B.H. and J.R. [ 2 ] Following a hearing on October 26, 2010, I granted Ms. H. sole custody of B. I further ordered that the parties share joint guardianship. With respect to access, I determined Mr. R.'s access to B. be supervised and that at least one visit per week be in Gibsons where Mr. R. resides, with Ms. H. being responsible for the transportation to and from the visits. [ 3 ] On January 10th, 2012, I granted Ms. H.'s application permitting her to move with B. to Washington State, but not before June 30th, 2012. I again ordered that Mr. R.'s access be supervised.

I further ordered one access visit each week be supervised by Mr.

Browning, a visitation access supervisor, and that this supervision reports be filed with the court. [ 4 ] My January 10th, 2012, order specifically notes that the goal with regard to access is that by this summer, access is to be unsupervised and by inference to include overnight access, as I expect B. will be living in Washington State this summer. [ 5 ] The parties have appeared before me on January 18th, 25th, February 8th, 22nd, and March 6, 2012, but have not been able to reach an agreement with respect to achieving the goal of unsupervised access by June of 2012.

Each party has filed a written proposal regarding access. [ 6 ] The issue before me is what is appropriate access for the months of March, April, May and June. Mr. R. seeks immediate

unsupervised access which would include overnight access commencing in May. [7] Ms. H. seeks to have the supervised access continue in March with unsupervised access beginning in April. She requests that theunsupervised access be in a controlled environment, that she has the final say on all visitation locations and that if at any time there arisesa cause for concern regarding the welfare of B. or Mr. R.'s behaviour, Ms. H. has the final say regarding the terms of the visit.

She alsoseeks an order that B. is not to be a passenger in any vehicle. [8] In order to determine what the appropriate access is, I will first review the legal principles that guide me in my decision. I willthen comment on each party's position and conclude with my ruling. [9] In C.T. v. J.T., 2007 BCPC 112 , my colleague Judge Skilnick paraphrased the applicable law in dealing with accessissues as set out in the Supreme Court of Canada decision in Young v. Young, (SCC), [1993] 4 S.C.R. 3: 1. The power of the custodial parent is not a "right" granted by courts for the benefit of that parent.

Instead, the child has a right to aparent who will look after his or her best interests. 2. The custodial parent [has] a duty to ensure, protect and promote the child's best interests. That duty includes the sole and primaryresponsibility to oversee all aspects of day-to-day life and long-term well-being, as well as major decisions with respect to education,religion, health and well-being. 3. Child placement decisions should safeguard the child's need for continuity of relationships and should reflect the child's (not theadult'

s) sense of time. This need for continuity generally requires that the custodial parent have the autonomy to raise the child as he orshe sees fit without interference with that authority by the non-custodian. 4. The right to access is limited in scope and is shaped and governed by the best interests of the child. The role of the party exercisingaccess is that of a very interested observer, giving love and support to the child in the background. 5. The right to access and the circumstances in which it takes place must be perceived from the vantage point of the child.

Whereverthe relationship to the non-custodian conflicts with the best interests of the child, the furtherance and protection of the child's bestinterests must take priority over the desires and interests of the non-custodian. 6. As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must becrafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose. 7.

Sources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship should be removedor mitigated. While caution may be had about the vulnerability of access rights by abuse of authority by a vengeful custodial parent,courts should not be too quick to presume that the access concerns of the custodial parent are unrelated to the best interests of the child. 8. When disagreements between parents do reach the courts, the judge must always draw the line in favour of the best interests of thechild, from a child-centred perspective.

The best interests of the child cannot be equated with the mere absence of harm. Courts mustattempt to balance such considerations as the age, physical and emotional constitution and psychology of both the child and his or herparents and the particular environment in which the child will live. [10] In Young v. Young, the Supreme Court further stated that the only test when discussing access is the best interests of the child. Inparagraph 24, the court noted: . . . the ultimate criterion for determining limits on access to a child is the best interests of the child.

The custodial parent has no "right"to limit access. The judge must consider all factors relevant to determining what is in the child's best interests; a factor which must beconsidered in all cases is Parliament's view that contact with each parent is to be maximized to the extent that this is compatible with thebest interests of the child. The risk of harm to the child, while not the ultimate legal test, may also be a factor to be considered. This isparticularly so where the issue is the quality of access -- what the access parent may say or do with the child.

In such cases, it willgenerally be relevant to consider whether the conduct in question poses a risk of harm to the child which outweighs the benefits of a freeand open relationship which permits the child to know the access parent as he or she is. It goes without saying that, as for any other legaltest, the judge, in determining what is in the best interests of the child, must act not on his or her personal views, but on the evidence. [11] In determining what is in B.'s best interest, I must also give consideration to the factors set out in s. 24 of the Family RelationsAct. [12] In Miller v.

McMaster, 2005 NSSC 259 , Justice Forgeron commented upon the situations in which it is appropriate torequire a parent's access to be supervised. Supervised access is not a long term solution to access problems which usually arise in high conflict custody and access cases wheredistrust and negative parental allegations abound. Supervised access is appropriate in specific situations, some of which include thefollowing: (

a) where the child requires protection from physical, sexual or emotional abuse; (

b) where the child is being introduced or reintroduced into the life of a parent after a significant absence; (

c) where there are substance abuse issues; or (

d) where there are clinical issues involving the access parent. Supervised access is not appropriate if its sole purpose is to provide comfort to the custodial parent. Access is for the benefit of the childand each application is to be determined on its own merits.

[ 13 ] I will now provide my comments with respect to each party's position. [ 14 ] On the first visit supervised by Mr. Browning, he noted a strong smell of marihuana in Mr. R.'s house. B.'s visit with her father took place at Mr. R.'s house. The marihuana smell decreased substantially on the next visit and had virtually dissipated by the third visit. Mr. R. says that what Mr. Browning was smelling was the odour from Mr. R.'s hockey bag and equipment. With respect, I find that it is more likely that the smell was marihuana as described by Mr. Browning. It is disappointing that Mr.

R. choose to expose B. to that environment. [ 15 ] Next, despite having the opportunity to exercise access to B. in Sechelt, Mr. R. has chosen not to. While he has provided explanations for this, once again, I find Mr. R.'s commitment to B. disappointing. [ 16 ] As well, pursuant to my access order of January 25th, 2012, Mr. R. was to confirm by 8 p.m. on the evening before his Sunday access visit that he would be exercising access the following day. Once again, Mr. R.'s conduct was disappointing, in that he did not call to confirm until 9 p.m. and as a result, Ms. H. cancelled the access visit. [ 17 ] Ms.

H. has stressed that her motivation regarding B.'s access with her dad is founded on B.'s best interest and ensuring that B. is safe and in a healthy environment. That said, I was disappointed by Ms. H.'s decision to cancel the access visit because Mr. R.'s confirmation call was late. I question whether Ms. H. is truly committed to the access goal of the continuation of the significant relationship between B. and her father.

After all, she chose to file the affidavit of J.B., who in the last paragraph of her affidavit deposes, "I could not in good conscience ever say J. would be a good father and caregiver for any child." [ 18 ] With all due respect, Mr. Browning's supervised access reports do not support such a statement. As Mr. Browning noted in his report of the February 12th access visit, despite B. having a cold, she was lively as ever, enjoyed herself playing with her father, and everyone remarked how fast the time had passed this visit. [ 19 ] Also, Ms.

H.'s desire to retain the final say on all visitation locations in terms of the access visit: while that may on its face appear to be appropriate custodial powers, it must be remembered that Ms. H. has emphasized and urged me to consider as a real and pressing concern that the minute, unidentified muskiness in Mr. R.'s home noted by Mr. Browning on February 12th, 2012, should be a reason for the access to remain supervised. [ 20 ] Balancing the factors that I have outlined, and considering B.'s young age, giving weight to my real concern about whether Mr.

R. is really prepared to fulfil his role as the access parent by being a very interested observer giving love and support to B., and tempering that concern by the significant concern I have about whether Ms. H. truly supports the continuation of the relationship between B. and her father, access shall be as follows: commencing March 18th, 2012, and continuing each Sunday thereafter, Mr. R. shall have unsupervised access to B. from 10 a.m. until 2 p.m. [ 21 ] Ms. H. shall be responsible for all transportation for the access visit. Drop-off and pick-up shall be at Mr. R.'s residence in Gibsons. [ 22 ] Mr.

R. is prohibited from smoking in his residence while B. is in the residence and in the 24 hours preceding the visit. Ms. N. shall not be present during these visits. [ 23 ] In my view, Mr. R. is further away from achieving his goal of unsupervised, overnight visits with B., than he was in January 2012. [ 24 ] It is in B.'s best interest to be able to spend weekends with her father and to have a significant meaningful relationship with her father. The question remains whether Mr. R. is prepared to fulfil that role.

I will be in a better position to answer that question in 10 weeks. [ 25 ] This case is adjourned to May 22nd, 2012, at 9:30 a.m., for access review. [ 26 ] Ms. Wilson is to prepare the order and forward it to Ms. H. for her approval as to form and her signature. Ms. H. is then to send the order back to Ms. Wilson, with Ms. Wilson ultimately filing it at the court registry. [ 27 ] THE CLERK: Can we have the time again, Your Honour, for the review. [ 28 ] B.H.: Yeah. [ 29 ] THE COURT: May 22nd at 9:30. [ 30 ] THE CLERK: Thank you. [REASONS CONCLUDED]