B.I. v. O.K. Date:, 2012 BCPC 286

Citation: B.I. v. O.K. Date: 20120703 2012 BCPC 0286 File No: 1124715 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: B.I. APPLICANT AND: O.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MEYERS Counsel for the Applicant: A. De Ciantis

Counsel for the Respondent: C. Ham, Articled Student (as Agent for B. Clokie) Place of Hearing: Vancouver , B.C. Date of Hearing: July 3, 2012 Date of Judgment: July 3, 2012 [ 1 ] THE COURT: T. is a little boy of six years old and he has, unfortunately, very severe autism and mom and dad are trying very hard to make him able to do the best that he is able to do. At this stage, nobody knows what that is and what ultimately will be the best that he is able to do. [ 2 ] Right now, T. is very uncommunicative.

He has, in the past, spent a lot of time exhibiting behaviour such as banging his fists together, banging his head against the wall, running around in circles and screaming.

It must be, for mom or dad or whoever is looking after T., just an incredibly difficult and heartbreaking thing to do. [ 3 ] The amount of effort that is required by mom or dad to put into making T. become everything he can become, is a tremendous amount and great credit has to go out to both mother and father, for being determined to give T. every opportunity in the world to allow him have a life that they believe will be the best that T. can be. [ 4 ] This is an Application where the father has opposed the mother's taking T. out of his special educational school which has special classes for kids with various disabilities including autism.

Dad's view is that the school provides a one-on-one educational assistance for T. There is a teacher who is specially trained with kids with disabilities.

There are some 26 kids in the class. [ 5 ] There have been speech therapists, behavioural therapists involved with T. and the dad says that that is an atmosphere where trained people, trained in working with disabled kids and also with autism (T.'s disability), will do the best in teaching and bringing T. from the stage where he is at now to a stage where, hopefully, he will be able to function better with speech. [ 6 ] My sense of it is that mother has allowed the schooling of T. to take place at the school - I think the school is called ------ Elementary School - hoping that the teachers and the staff and the input that they have there, would bring T. more and more improvement over time. [ 7 ] My sense of it is that probably, and I do not know for sure, probably at some point, somebody in the school system said to mother that, "I don’t think that T. will ever talk," and I might be wrong, but my sense of it is, is that once she heard that, she came to the conclusion that they really were giving up on T. and that they were not the place for T. to be because he needs lots of encouragement, lots of positive thinking, and somebody who is basically dedicating their life to making T. improve, including talking. [ 8 ] As I say, that may or may not have been the precipitating point which caused mom to say that unless everybody is trying as hard as they can, unless everybody is confident and positive, it is not going to happen.

Whether I am correct in what precipitated it or not, she finds that the people who teach at the school are not as good as they could be. [ 9 ] She says that there are better behavioural therapists and better speech therapists in the community that could, if she were in charge of education for T., be tapped into so as to give T. the opportunity to improve more than would be the case leaving him with the teachers at this school. [ 10 ] I do not have any evidence before me one way or another whether the teachers and therapists at the ------ School are excellent or poor.

I know that in any profession, there are some good professionals, there are some bad ones, there are some in the middle, there are exceptional ones and there are terrible ones. [ 11 ] At this juncture, dad says they are good, mom says they are not and I really am not in a position to either agree with dad or mom to say these people are extraordinarily good or extraordinarily ordinary or poor. [ 12 ] What the Application is all about though is mom says, because she has T.'s best interests at heart, and she thinks she can do a better job by having T. at home and give him everything he needs.

Dad, who also has T.'s best interests at heart, but he says, "No, she cannot." [ 13 ] I look at it objectively, as I have to, and I say I am told, first of all, that as long as T. is in the speciality school, there will be all kinds of money available for helping T. while he is in the school, be it payment for speech therapists, occupational therapists or educational assistants, but if he is not in the school, mom says she is still able to get the same amount of money to put into his schooling at her home. [ 14 ] Dad, on the other hand, says, "No," she would only get $500 a month to use towards the hiring of professionals.

Well, $500 a month would not go very far. I do not know whether she gets all the money or she just gets $500.

Neither side have shown me any policy or documentation that would let me know whether the full monetary assistance will be given to mom if T. is at home as opposed to at the speciality preschool. [ 15 ] One would think, but I do not know for sure, that likely the amount of money that would be available for mom to use for helping T. at home would be less than what has been and would be given for T. if he remained in the public speciality school. [ 16 ] I say I do not know, but I do know that mom has not been able, through either direct requests made to her own doctor or naturopath who both look after T., to ask for referrals to people who might be exceedingly well thought of in the profession of childcare and child development with respect to autistic kids, how much they would charge, would they come to the house?

[ 17 ] She has not, either through a direct request for referral, come forward with anyone who she has researched or talked to, or how much it would cost, or whether they would come, and she has not investigated to any degree, what money truly would be available for her to do it.

It is with only a hope, that she has said that if T. is allowed to be homeschooled, she would then ask for and get the referrals, she would then find out how much money would be available, and then she would proceed from there. [ 18 ] School starts though, in September and a lot of these inquiries in preparation for an Application like this, would have had to be made in advance, so the Court would be able to see, well, what is available at home to help T. versus what is available at school to help T. Right now, we are in a situation where I do know, that professionals are at school to help T.

I do not know whether mom will have some small budget, the same budget, or a larger budget, perhaps, to help T. at home. [ 19 ] I look at Ms. K.'s home situation and she is on social assistance, she has a one-bedroom apartment. According to the s. 15 Report, she hopes at some point, to be able to go back to school and get some specialized training so that she can hold down some kind of job. As I say, Ms. K. has a great heart and a great concern for T.

She wants to do the best for him. [ 20 ] I have no doubt about any of that, but I have to look objectively as to whether mom can do that and if she cannot, then it would not be, despite her most valiant attempts, in T.'s best interests, to remove him from the public school and put him into a home-schooling situation at home. [ 21 ] The apartment is small.

T.'s behaviour right now with the head banging, the fist banging, the screaming and the running in circles, to be with a child having those behavioural difficulties 24 hours a day, seven days a week, in a one-bedroom apartment, would be absolutely an incredible hardship for mom and no matter how much she wants to do it and thinks she can do it for T., it really would be just a matter of time when it became impossible for anyone, no matter that they have the commitment and the desire that Ms.

K. has for her son, they simply could not continue to do it. [ 22 ] I say that, knowing of the love and the care that she has for T. but also objectively, knowing that it just cannot happen. [ 23 ] I listened to the dad and he has a love for T. He wants the best for T. and he is more realistic in the sense that he has talked to the teachers, he has talked to the behaviourists, and he has come to the conclusion that the school where T. is now, has to be the one he continues at. [ 24 ] Would he develop substantially there? Would he develop as far as he could? Nobody knows at this juncture.

I personally do not like any teacher or therapist who would say a child is never going to speak. That is not what you tell a parent. That is not the right attitude for any behaviour therapist or teacher because there are no certainties in life and it is always a possibility that miraculous things happen with children or adults who have illnesses, and so it must be persisted with. [ 25 ] If that is the view of one therapist who told that to Ms. K., and I do not doubt when Ms.

K. told the Court that somebody did say that, that particular therapist may be not a good therapist for young T., but he is being attended to by other more positive and more professional therapists, at the school. [ 26 ] To remove mom's help for T. would be horrible. Mom has to continue as the primary place that T. is living and mom has to continue her enormous efforts in trying to teach and help T. be everything he can be.

She will have that ability during the times during the weekdays and the weekends that she is with T. and, as she has in the past, she will be expected to do the type of thing that she has been trying to with teaching and getting T. to speak by breaking down words into parts that T. can imitate. It sounds, from what mom has said, that she is determined to prove that therapist who said that T. will never speak is wrong. [ 27 ] Mom will have the summer, of course, but that will not be enough time to do everything for T. and everyone agrees with that.

But while T.'s life continues, she will have a great deal of time to spend with T. to teach him and help him, but the school days would also provide what is absolutely essential and that is some respite for mom. [ 28 ] No matter how strong she is mentally or how strong she thinks she is mentally and physically to look after T., it would have to take its toll over a period of time and no human being can be expected, no matter how strong their motives and their beliefs are, for 24/7 in a small apartment to look after the caring and training of a child with T.'s difficulties and challenges. [ 29 ] My final conclusion is that T. should be returned to full-time school at the -------Elementary School to attend the specialty classes for autistic students.

When I say "attend full-time", I should qualify that, by saying at first, the frequency of his attendance at the class, shall be at the discretion of the school principal, teachers, and therapists at the school. Mother will drop off and pick up T. at school. [ 30 ] In addition, other parts of the Order that I am making here, is that the mother and father only attend at the school with the consent in advance, of the principal or a teacher or a therapist at the particular school.

The idea is that neither should be dropping in unexpectedly. [ 31 ] Furthermore, both parents are not to attend the school simultaneously.

In other words, not at the same time. [ 32 ] Furthermore, and I do not think this is an issue, but I will put it in anyway, that mom is to use the $500 (or increased or decreased government grant) for hiring a behavioural interventionist or speech therapist and make every effort to keep the same one, unless there are some reasonable grounds to have to make a change in the particular behavioural therapist or speech therapist. [ 33 ] Both parents are to be noted on the school records as the contact person for calls for any emergencies and to be kept on school records, as an equal contact person for T., be it an emergency or otherwise. [ 34 ] Mom is to provide dad with all notices from the school and both parents are to advise the other if there is any upcoming appointment for T. with any consultant, doctor, psychologist, or teacher and that way, both are fully advised and apprised of what is going on with T. as time moves on.

[ 35 ] Both counsel have asked that the communication between both parents be by way of text messaging with the texting to the mother being from the father at 9:30 p.m. of every day should he wish, and the mother to be obliged to respond to the text message from the father within one hour of receipt of same. I made that provision as part of the Order. [ 36 ] Each parent has asked that they be the one who has the final decision-making process with respect to education and health for T.

I think the Order should, first of all, read that any decision with respect to T.'s education or health is to be discussed between both parents and each parent is to be open and reasonable to the suggestions of the other parent and that all communications be between the parties be in a written form so that there might be a record to look at later on, should there be an issue of who was being reasonable and who was not being reasonable. This will allow someone to look objectively at what is best for the child. [ 37 ] The parents disagree as to who should have the final say.

Counsel for the dad has cited a reference to a decision holding that, because the primary parent generally has that final say does not mean the primary parent always has to have that final say. [ 38 ] I agree with that, but in this case, it is my view that because T., for the time being certainly, is living with the mother on a full- time basis, with the dad having visits, I think, three days a week but no overnights yet with T., that the mom has to discuss with the dad any important decisions related to the education or health of T.

She has to take into consideration dad's views and she has to be open and reasonable in discussing it. All of that has to be in writing between them but the final decision rests with mother. This shall be a provision in this Order. [ 39 ] On the other hand, if dad believes that that decision is an unreasonable one, then dad has the right to request that both parties, mom and dad, go to a Family Justice counsellor to see if that decision can be mediated.

Failing that, then the dad is at liberty to bring an application to this Court, to ask the Court to make the decision in a situation where mom is definite that she wants a certain something for T. and dad wants something different. This shall be a provision of the Order. [ 40 ] I think I have covered everything. The agreement of counsel at the beginning, was that the matters of guardianship, custody, and maintenance, are to be addressed at a hearing in the future, on another date and time set by the parties. [ 41 ] So that is the final Decision. Have I missed anything, either counsel? [ 42 ] MS.

DI CIANTIS: No, maintenance has been addressed in the mediation. [ 43 ] THE COURT: Oh, you have got that. Okay. [ 44 ] MS. DI CIANTIS: It is just custody and guardianship, is what is left. [ 45 ] THE COURT: Custody and guardianship, okay. [ 46 ] MS. DI CIANTIS: Correct. [ 47 ] THE COURT: All right. It is a tough, tough case, a tough life for both of you and I cannot imagine what it is like. I know that you both care, you both try, and you know, it is tough but you need some help, because as much as you want to do it yourself, you know, it just cannot be done yourself.

You can do an awful lot, but you cannot do it all yourself. And it is the same for dad, you know. On dad's time, he has consulted with people and tried to figure out what the best way to deal with T. is. He needs help too, to help him along and he is going to do what he can do, but you know, there is a limit to what all of us as human beings can do for even for the children we love. All right. Good luck. [ 48 ] MS. HAM: Thank you, Your Honour. [ 49 ] MS. DI CIANTIS: I will draft. [ 50 ] THE COURT: Thank you. [REASONS FOR JUDGMENT CONCLUDED]