C.S. v. W.L. Date:, 2014 BCPC 102

Citation: C.S. v. W.L. Date: 20140529 2014 BCPC 0102 File No: 11531 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.S. APPLICANT AND: W.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. C. Kane

Counsel for the Respondent: Mr. J. Mariona Place of Hearing: Merritt , B.C. Dates of Hearing: January 25, 2013 and April 4, 2014 Date of Judgment: May 29, 2014 [ 1 ] This is an unfortunate case. C.S. is the maternal aunt of L.L. born August 13, 2002 to S.J. S.J. died in a car accident and L.L. now resides with her father, W.L. and her adoptive mother, R.G. Ms. C.S. now seeks contact time with L.L. Mr. W.L. is opposed to that contact time. [ 2 ] A Views of the Child Report has been prepared by Bruce Stevens, a registered clinical counsellor. L.L. was 11 at the time. I have considered L.L.’s comments to Mr.

Stevens in the context of the allegations made by both parties concerning what is in L.L.’s best interests. L.L. cannot recall her aunt being around during the years leading to her mother’s death. Now when she sees her aunt, L.L. reports that Ms. C.S. does not do anything with her but just seems to drop off her own 7 year old daughter, J., to play with L.L. [ 3 ] L.L. has several negative memories of prior experiences at Ms. C.S.’s home. She recalls visiting Ms. C.S. with her grandparents and having to be around “a bunch of drunk people on her couch”.

She also has a frightening memory with respect to a big dog that jumped over a gate and came after her. Finally, L.L. reported anxiety with respect to holes in living room and bedroom walls which Ms. C.S. told her occurred when she got into a fight with her boyfriend. [ 4 ] L.L. also raised concerns that she believes her aunt, Ms. C.S., tries to bribe her with candy to get her to visit more. She expressed her feeling that her aunt and she do not really know each other. She would like to continue with the supervised visits, rather than having visits alone together.

She would also like her aunt to phone once a week so that the two of them can get to know each other more before she considers unsupervised visits with her aunt. Finally, she does not want to go to her aunt’s home because of the bad memories she associates with it. She would prefer to go to the pool. [ 5 ] Ms. C.S.’s evidence often lacked specifics and her memory did not appear to be entirely clear. After her sister, S.J., was killed in 2006, she was permitted to see her niece, L.L., until about 2007. Around that time, an unidentified woman gave Ms.

C.S. photos of L.L. taken at Rotary Park which showed L.L in a bathing suit with bruises. Ms. C.S. took the photos directly to the Ministry of Child and Family Development. This launched a fracture in her relationship with Mr. W.L. and his partner that has not been repaired to this date. [ 6 ] Since then, Mr. W.L. has essentially denied Ms. C.S. access to L.L. He has told her to stay away from his daughter. Ms. C.S. says she has sent home birthday party invitations and left phone messages that have gone unanswered.

One would think that a parent would intend to teach their child proper social etiquette, such as returning phone messages and properly declining invitations. However, I am satisfied that Mr. W.L.’s evidence is credible that he has advised his daughter of the phone messages. He said the birthday invitation was declined because the birthday fell at the same time as L.L.’s friend’s birthday party. A proper response to that invitation could have avoided many of the hard feelings. [ 7 ] All that being said, it is for the guardians to determine what is in the best interests of the child.

It is only if it is clear by the conduct of those guardians that they are attending to their own best interests and not those of the child that the court should intervene. Mr. W.L. clearly has a good deal of animosity toward Ms. C.S. He believes he is justified because Ms. C.S. made the report to the Ministry of Child and Family Development. He is not justified for those reasons. It is the obligation of any member of the community who suspects a child has been abused to take the appropriate steps and report it to the authorities. [ 8 ] This child has come from tragic circumstances. She has lost her mother.

Now she appears to have lost an aunt. I accept the findings in the Views of the Child report that the child does not have any real past clear memories of her aunt. However, extended family can and should provide a supportive environment wherever possible. [ 9 ] There is the added complication that L.L. may well suffer from the effects of fetal alcohol spectrum disorder. The diagnosis cannot be confirmed because this requires Ms. S.J. to acknowledge that she consumed alcohol during her pregnancy. This cannot be done. This is complicated and confounded by the fact that Ms.

C.S. and her family are not only disputing the diagnosis but are quite confrontational about it. So long as this dynamic persists, conflict will continue between the families. This is not constructive or healthy for L.L. It is certainly not in her best interests. [ 10 ] In addition, L.L. has established very clear parameters for what she thinks is appropriate contact. She wants her aunt to call her once a week so that she can get to know her better. Mr. C.S. should ensure that he accommodates those telephone calls should they occur.

She has also said that she does not want to go to her aunt’s place for any visits and that should be respected if Mr. C.S. determines that unsupervised visits can occur. Finally, she prefers that any visits she does have be supervised at this time. This is a clear message that L.L. feels more comfortable if someone else is present during her visits and this must be respected. [ 11 ] It appears that both families are engaging in disparaging remarks about the other. It is not appropriate for anyone to engage in making disparaging remarks in the presence of or to L.L. about either side of her family. Ms.

C.S. has also been very obstructionist about Ms. R.G.’s role in L.L.’s life. Ms. R.G. is L.L.’s mother. Ms. C.S. cannot continue to undermine that relationship. It must be respected and honoured. To do otherwise is to be acting entirely contrary to L.L.’s best interests. [ 12 ] Should the court intervene and order that there be contact time for Ms. C.S.? Mr. W.L. is not acting in the best interests of the child if he is barring access to her mother’s family.

Nor is he acting against her best interests in ensuring that those who undermine his parenting, speak ill about him, or interfere with his wife’s efforts to obtain proper medical and educational attention for their daughter, do not continue to do so. Ms. C.S. shall have to earn back Mr. W.L.’s trust. She will not do that by remaining in constant conflict with him.

Mr. W.L. needs to put aside his defensive reactions and his fear about Ms. C.S. trying to become the child’s guardian. There is no evidence before me that Ms. C.S. has attempted to become L.L.’s guardian or intends to become her guardian. There is no foundation for that belief nor would such an application likely be successful. [ 13 ] I am satisfied that it is not in the best interests of the child for the court to determine who has contact time with the child where there is a perfectly capable guardian tasked with determining that.

While it is tragically unfortunate that these two families could not put aside their differences for the betterment of this child’s life, for me to order contact time for Ms. C.S. would be in Ms. C.S.’s best interests, and not necessarily the child’s. I urge the parties to work more cooperatively within the parameters wisely set by L.L., but this is not a case where a court order is appropriate. [ 14 ] I dismiss the application. ______________________________ S.D. Frame Provincial Court Judge