Director and B. Date:, 2014 BCPC 111

Citation: Director and B. Date: 20140605 2014 BCPC 0111 File No: 14446 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: L.J.B. , born [omitted for posting] H.W.B., born [omitted for posting] I.J.B., born [omitted for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: J.D.B. PARENT AND: D.H. PARENT AND: S.N. PARENT File No: 13683 Registry: Kamloops AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.D.N. APPLICANT

AND: D.H. RESPONDENT AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 File No: 14261 Registry: Kamloops BETWEEN: J.D.B./N. APPLICANT AND: S.N. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Director: Mr. Tom Weiss Counsel for the Parent, J.D.B.: Mr. Murray Armstrong Counsel for the Parent, S.N. : Ms. Brenda Muliner Appearing on his own behalf: Mr. D.H. Place of Hearing: Kamloops , B.C. Dates of Hearing: March 24 - 27, 2014 Date of Judgment: June 5, 2014 INTRODUCTION [ 1 ] J.D.B. has three children in the care of the Ministry of Children and Family Development.

The children are L.J.B. age 7, H.W.B. age 4 and I.J.B. age 2. The children were taken into care on June 27, 2012 due to Ms. J.D.B.’s struggles with her mental health, addictions and parenting. The children have been in foster placements in Kamloops since they were taken into care. Ms. J.D.B. currently lives in Slave Lake, Alberta where, by all accounts, her struggles continue. [ 2 ] D.H. is L.J.B.’s biological father. Mr. D.H. was not together with Ms. J.D.B. when L.J.B. was born and there were doubts about his paternity of L.J.B. When L.J.B. was four years old, paternity testing established that Mr.

D.H. is L.J.B.’s biological father and Mr. D.H. has had regular contact with L.J.B. since that time. Mr. D.H. currently lives in Camrose, Alberta with a new partner and her three children. Mr. D.H. is a foreman at a tire shop and also earns income through self-employment. Mr. D.H. has three other children from two previous relationships. Mr. D.H.’s other children live with their mothers but Mr. D.H. has regular contact with them. [ 3 ] S.N. is H.W.B. and I.J.B.’s biological father. He was married to Ms. J.D.B. when H.W.B. and I.J.B. were born. He resided with Ms.

J.D.B. when H.W.B. was born but was separated from Ms. J.D.B. when I.J.B. was born. Mr. S.N. has had somewhat limited contact with H.W.B. and I.J.B. since the separation consisting mostly of regular Skype and/or telephone contact. He has also had personal contact with H.W.B. and I.J.B. during the two occasions he has been in Kamloops for these court proceedings. Mr. S.N. currently lives in Windsor, Ontario where he works seasonally as a roofer. Mr. S.N. has one other child who lives with her mother in

Newfoundland. Mr. S.N. has not had contact with that child. [ 4 ] On October 16, 2013, the Director applied for a Continuing Custody Order for all three children under s. 49(5) of the Child, Family and Community Service Act , RSBC 1996, c. 46 (the “ CFCSA ”). The Director’s Court Plan of Care identifies that the Ministry will meet the children’s need for permanent stable relationships by placing the children for adoption “as soon as possible”. [ 5 ] All three parents are opposed to the Director’s application. Ms.

J.D.B. did not attend the trial and, through counsel, has acknowledged that she is not in a position to have the children returned to her care. Mr. D.H. and Mr. S.N. have each applied for sole guardianship of their children and ask for their children to be placed in their care. Mr. D.H. has also applied to cancel a previous order dated February 7, 2011 requiring that he pay child support to Ms. J.D.B. for L.J.B. Ms.

J.D.B. supports the fathers’ applications for sole guardianship and having the children returned to their care. [ 6 ] At the outset of the trial, I was informed that the Director no longer has protection concerns regarding Mr. D.H. and supports Mr. D.H.’s application for guardianship and L.J.B. being placed with him. The Director is opposed to Mr. S.N.’s application for guardianship of H.W.B. and I.J.B. and to the placement of H.W.B. and I.J.B. with him. The Director is concerned that Mr.

S.N. has not established a significant relationship with his children, lacks parenting skills and is not sufficiently emotionally or financially stable to parent two young and fragile children with attachment and behavioural issues.

ISSUES [ 7 ] The main issues are whether it is in the best interests of the children to: 1. grant sole guardianship orders to their biological fathers and place the children with them; 2. place the children in the continuing care of the Ministry; or 3. make a “last chance” order to give the biological fathers an opportunity to demonstrate that they are capable of having the children placed in their care. [ 8 ] Inherent in the determination of whether I should grant sole guardianship orders to Mr. D.H. and/or Mr. S.N. is the question of whether I should terminate Ms.

J.D.B.’s guardianship of her children. [ 9 ] Secondary issues arise if I return any or all of the children to their father’s or fathers’ care. If I do, then I will have to determine what parental responsibilities and parenting time or contact time Ms. J.D.B. should have with her children. [ 10 ] A final issue is whether I should cancel the order that requires Mr. D.H. to pay child support to Ms. J.D.B. for L.J.B. ANALYSIS [ 11 ] Because virtually all of the decisions I must make turn only on what is in the best interests of the children, there will be considerable overlap in my analysis of each issue.

To provide some analytic coherence, I will first set out the statutory framework for guardianship applications and continuing custody orders. I will then tackle the issues affecting L.J.B. before I tackle the issues affecting H.W.B. and I.J.B. As the guardianship applications set the foundation for my disposition of the Director’s continuing custody applications, I will deal with the guardianship applications before turning to the continuing custody applications.

The Statutory Framework for Guardianship [ 12 ] The Family Law Act , SBC 2011, c. 25 (the “ FLA ”) and the Provincial Court (Family) Rules , BC Reg. 417/98 (the “ Rules ”) outline a number of considerations and requirements that are relevant to guardianship applications. [ 13 ]

Section 39 of the FLA deals with the status of parents as guardians and provides, in part, as follows: Parents are generally guardians 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. …

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies: (

a) section 30 [parentage if other arrangement] applies and the person is a parent under that section; (

b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; (

c) the parent regularly cares for the child. … [ 14 ]

Section 51 of the FLA deals with guardianship applications and provides, in part, as follows: 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]. … [ 15 ]

Section 37 of the FLA provides that, in making a guardianship order, the court must consider only the best interests of the child and sets out a non-exhaustive list of factors the court must consider in determining what is in a child’s best interest. Where family violence is an issue, s. 38 of the FLA sets out further considerations which the court must take into account before making a guardianship order. I reproduce ss. 37 and 38 in full below: 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. [ 16 ] The term “family violence” is defined in s. 1 of the FLA . Of relevance to this case, the definition provides, in part, as follows: "family violence" includes (

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, … (

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, … (

e) in the case of a child, direct or indirect exposure to family violence. [ 17 ] Finally, Rule 18.1 of the Rules sets out certain requirements regarding guardianship applications and orders. Rule 18.1 provides, in part, as follows: Guardianship affidavit required

(1) When an order is sought appointing a person as the guardian of one or more children, the applicant must (

a) file with the court the original and 3 copies of an affidavit in Form 34 that complies with subrule (4) and serve a copy of that filed affidavit on the other parties and on any other person who may be affected by the orders sought, and (

b) provide to the judge any other evidence the judge considers necessary. Interim order may be made

(2) A judge may make an interim order for guardianship without an affidavit in Form 34 having been filed if the judge is satisfied that it is in the best interests of the child that an interim guardianship order be made before that affidavit is filed. Duration of interim order

(3) An interim order under subrule (2) must expire within 90 days after the date of pronouncement unless renewed by a judge. … The Statutory Framework for Continuing Custody Orders [ 18 ] Sections 49(4) to (10) of the CFCSA set out the court’s powers when faced with an application for a continuing custody order (“CCO”). These sections provide as follows: Continuing custody hearing and orders … 49

(4) The court must order that the child be placed in the continuing custody of the director if (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

b) a parent is unable or unwilling to resume custody of the child.

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. Mr. D.H.’s Application for Sole Guardianship of H.W.B. [ 19 ] On September 20, 2012, Mr. D.H. applied for “sole custody” of L.J.B. under the predecessor legislation to the FLA but the parties approached the application as an application for sole guardianship to be determined under the FLA . I agree that Mr.

D.H.’s application must be determined under the current legislation. [ 20 ] The concepts of custody, guardianship and access under the former legislation have been replaced in the FLA by an expanded concept of guardianship coupled with assignments of parental responsibilities and parenting time to guardians and contact with children to non-guardians. [ 21 ] In analysing Mr. D.H.’s application, I must first determine whether Mr. D.H. should be a guardian of L.J.B. and then whether to terminate Ms. J.D.B.’s guardianship of L.J.B. Mr.

D.H. will be L.J.B.’s sole guardian only if I make him a guardian and terminate Ms. J.D.B.’s guardianship. [ 22 ] Ms. J.D.B. is L.J.B.’s guardian by operation of s. 39 of the FLA . Mr. D.H., however, was not living together with Ms. J.D.B. at the time of L.J.B.’s birth and, though he has had contact with L.J.B. of up to several weeks’ duration, Mr. D.H. has never “resided” with nor “regularly cared for” L.J.B. as those terms are used in s. 39 of the FLA . There is also no formal agreement by all of L.J.B.’s guardians (which, by virtue of s. 47 of the CFCSA , includes the Director) to make Mr.

D.H. a guardian of L.J.B. It is for these reasons that Mr. D.H. is not a statutorily defined guardian of L.J.B. and now seeks an order to be L.J.B.’s sole guardian under s. 51 of the FLA . [ 23 ] As noted above, both Ms. J.D.B. and the Director support Mr. D.H.’s application to be declared a guardian of L.J.B. Based on the evidence I heard, I reach the following conclusions regarding Mr. D.H. and his guardianship application: 1. Mr. D.H. represented himself at the hearing. He handled himself extremely well. His testimony was on point and presented coherently. His cross examinations were succinct and effective.

In short, Mr. D.H. impressed me as being a bright,

calm and clear thinking person. 2. Immediately after his paternity of L.J.B. was established, Mr. D.H. took an active role in L.J.B.’s life. He began visiting L.J.B. in Kamloops and paying child support to Ms. J.D.B. 3. L.J.B. was taken into care about one year after Mr. D.H.’s paternity was established. This had nothing to do with Mr. D.H.’s interactions with L.J.B. and was entirely due to Ms. J.D.B.’s struggles. Even after L.J.B. was taken into care, Mr.

D.H. maintained his relationship with L.J.B., including by regular telephone calls, Skype communications and a number of visits with L.J.B. in both Kamloops and Alberta. Mr. D.H. also filed his guardianship application promptly and worked with Ministry social workers to satisfy himself that L.J.B. was being well cared for. 4. L.J.B. has stayed with Mr. D.H. for up to three weeks in Alberta without incident. Mr. D.H.’s interactions with L.J.B. in Kamloops have been observed by Ministry social worker, Freda O’Dell, and by L.J.B.’s foster parents. None has raised any concerns regarding Mr. D.H.’s parenting of L.J.B.

In fact, Ms. O’Dell testified that Mr. D.H. has established a strong relationship with L.J.B., that L.J.B. loves his father and that she has no protection concerns regarding Mr. D.H. 5. Mr. D.H. has three other children by two different mothers. Mr. D.H. regularly visits all three of his other children and pays child support to their mothers. L.J.B. has met his half-siblings on his father’s side and interacts well with them. 6. Mr. D.H.’s current partner has three children and L.J.B. also interacts well with these children. 7. Mr. D.H. maintains an amicable relationship with the mothers of his other children.

These relationships have not been marred by domestic violence. 8. Mr. D.H. is hard working. He has steady employment in the tire industry and earns additional income through consulting work. Even though he has made some monetary sacrifices in order to be a better, more present, parent, he has been able to meet his financial obligations. 9. Mr. D.H. has never been a drug user and does not abuse alcohol. 10. Mr. D.H. understands that L.J.B. is an energetic child who has attention and attachment difficulties. Mr.

D.H. knows that L.J.B. needs and deserves love and attention and has demonstrated an ability to provide both. 11. Mr. D.H. does not resort to corporal punishment to discipline children in his care. Rather, he takes time to speak with children in his care, including L.J.B., to deal with any poor or inappropriate behaviours. 12. Mr. D.H. is willing to access support services if necessary to deal with L.J.B.’s behaviours. 13. Mr. D.H. has provided negative criminal record and Alberta Government Intervention Record checks. [ 24 ] I have three concerns regarding Mr.

D.H.’s guardianship application. [ 25 ] My first concern is that L.J.B. has attachment issues and needs stability in his life. If I grant guardianship to Mr. D.H. and return L.J.B. to him, L.J.B. may be negatively affected by being separated from H.W.B. and I.J.B. As well, to date, Mr. D.H. has not maintained a stable intimate relationship for any prolonged period of time. Though I have no reason to think that Mr. D.H.’s current relationship will not last, if that turns out to be the case, L.J.B. may be negatively affected by a further loss of important relationships. [ 26 ] In response, Mr.

D.H. has expressed his willingness to foster and maintain contact, including visits, between L.J.B. and H.W.B. and I.J.B. Mr. D.H. has also expressed that, regardless of the status of his intimate relationships, he will provide a stable, safe and loving home for L.J.B. I accept that Mr. D.H. will both maintain contact between L.J.B. and his siblings and provide a safe and loving home for L.J.B. In my view, greater attachment concerns would arise if L.J.B. were to be placed in the continuing care of the Ministry and put up for adoption.

If that were to occur, L.J.B. would also stand to lose the close bond he has formed with his father. Attachment concerns do not stand in the way of a guardianship order in favour of Mr. D.H. [ 27 ] My second concern is that Mr. D.H. was not forthright with the Director concerning his current relationship and living situation. Because Mr.

D.H. did not inform the Director of his current relationship and living situation, the Ministry was unable to coordinate a home visit by the child protection agency in Alberta. [ 28 ] At the conclusion of submissions, I understood that the Ministry would be in touch with the child protection agency in Alberta to coordinate a home visit in short order. I also understood that if any concerns were identified, I would be informed prior to the release of my decision. No concerns have been brought to my attention so I conclude that Mr.

D.H.’s current partner and living situation do not give rise to any child protection concerns that would interfere with Mr. D.H.’s guardianship application. [ 29 ] My final concern is that Mr. D.H. has not filed an Affidavit in Form 34 in support of his guardianship application as required by Rule 18.1. Affidavits in Form 34 must be supported by criminal record, child protection and British Columbia Protection Order Registry checks. These checks provide the court with objective evidence about a potential guardian before the court exercises its important jurisdiction to grant a guardianship order.

The filing of an affidavit in Form 34 is a relatively easy to complete form of due diligence which helps the court achieve the policy goal of granting guardianship orders only when it is safe and appropriate to do so. [ 30 ] Section 51(2) of the FLA makes it mandatory for a guardianship applicant to provide evidence in accordance with the Rules and Rule 18.1(1) makes it mandatory for a guardianship applicant to file and serve an affidavit in Form 34.

In the absence of an Affidavit in Form 34, Rules 18.1(2) and (3) limit the court to making an interim guardianship order of up to 90 days’ duration. [ 31 ] In spite of the mandatory language in the FLA and Rules , Rule 20(2)(

c) allows a judge to “permit any other means of proof

instead of that required by these rules.” (Emphasis added.) In D. v. D., 2013 BCPC 135 , 2013 BCPC 0135, the HonourableJudge Merrick held that an affidavit in Form 34 is not required where the evidence at trial establishes the required information. Thispractical

interpretation of the Rules accords with the purpose of the Rules “to allow people to obtain just, speedy, inexpensive andsimple resolution of matters arising under the (FLA)….” and I agree with Judge Merrick’s

interpretation. [32] In my view, Mr. D.H. has substantially complied with the requirements of Rule 18.1 by providing testimony addressing thetopics covered by Form 34 and by submitting negative criminal record and Alberta Government Intervention Record checks. He has notprovided the results of a Protection Order Registry search but I am satisfied that Mr. D.H. has never resided in British Columbia nor beenin a spousal relationship with a resident of British Columbia. The only possible file that could contain a protection order regarding Mr.D.H. is the file that is before me and it does not contain any such order.

I conclude that a Protection Order Registry search wouldnecessarily be returned negative. [33] In the circumstances, I do not require Mr. D.H. to go through the formality of submitting an Affidavit in Form 34. [34] For all of the reasons outlined above, I find that it is L.J.B.’s best interest to declare Mr. D.H. to be his guardian. [35] I must now consider whether to terminate Ms. J.D.B.’s guardianship of L.J.B. [36] The court has not made any previous guardianship order regarding L.J.B. but Ms. J.D.B. is L.J.B.’s guardian by operation ofs. 51 of the FLA.

Terminating any mother’s guardianship of her child is clearly an extraordinary remedy. In considering the issue, Iagain take guidance from the decision of Judge Merrick in D. v. D. where Judge Merrick had this to say: [23] There are no specific criteria listed in s. 51 of the Family Law Act with respect to termination of guardianship, but asthat

section is within

Part 4 of the Family Law Act, an order to terminate guardianship must only be granted when it is in the bestinterests of the children to do so. [24] When considering an application to terminate a parent's guardianship, I am of the view that considering the factorsenumerated in s. 37(2) of the Family Law Act, termination can only occur in the most extreme situations. The approach to betaken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the childrenthat the parent remain a guardian. If it is, guardianship should not be terminated.

It must be remembered that once aparent 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 parentingresponsibilities, parents will have the maximum opportunity to remain a significant part of the child's life. [37] As set out in the Introduction, Ms. J.D.B. did not attend the trial.

She was, however, represented by counsel. Based on hercounsel’s submissions, I accept that Ms. J.D.B. loves and wants nothing but the best for her children. In spite of that, I have reached theunfortunate conclusion that this is one of the rare cases when a mother’s guardianship of her child ought to be terminated. [38] Through the course of the trial, I heard evidence from social worker O’Dell, Mr. D.H. and Mr. S.N. which reliablyestablished that Ms. J.D.B. is simply not able to responsibly exercise any of the parental responsibilities listed in s. 41 of the FLA.

Giventhat she supports sole guardianship being granted to the fathers, I see no need to detail Ms. J.D.B.’s substance abuse, emotional andparenting struggles. Ms. J.D.B. has acknowledged that she is not in a position to be a guardian and I terminate Ms. J.D.B.’s guardianshipof L.J.B. The Director’s Application for a CCO for L.J.B. [39] At the outset of the trial, the Director signalled support for Mr. D.H.’s guardianship application and a return of L.J.B. to Mr.D.H. For the reasons outlined above, I conclude that: 1. Mr. D.H. is willing and able to take custody of L.J.B.; 2. Mr.

D.H. had nothing to do with L.J.B. being taken into care; 3. Mr. D.H. will be able to meet L.J.B.’s needs; 4. No protection concerns arise from Mr. D.H.’s care of L.J.B. or other children. 5. The Director’s plan of care to put L.J.B. up for adoption is no longer warranted; and 6. It is in L.J.B.’s best interest to be placed in the care of his father. [40] Accordingly, under s. 49(7)(

a) of the CFCSA, I dismiss the Director’s application for a CCO for L.J.B. and order that he bereturned to the custody of Mr. D.H. Given that L.J.B. will be putting down permanent roots in Alberta, in my view, L.J.B. should betransitioned to his father’s care as soon as practicable. The benefits associated with putting L.J.B. in his father’s care essentiallyimmediately outweigh, in my view, any negative effects associated with changing schools prior to the end of the current school year.

Ms. J.D.B.’s Right to Contact with L.J.B. [ 41 ] Because I have terminated Ms. J.D.B.’s guardianship of L.J.B., she is not entitled to exercise any of the parental responsibilities outlined in s. 41 of the FLA nor spend “parenting time” with L.J.B. under s. 42 of the FLA . The rights to exercise parental responsibilities and to spend parenting time with a child are reserved only for guardians. Ms. J.D.B., however, requests that she have contact with L.J.B. [ 42 ]

Section 59 of the FLA empowers the court to grant contact with a child to any person who is not a guardian. Because s. 59 is in

Part 4 of the FLA , the decision whether to grant contact with L.J.B. to Ms. J.D.B. must be determined to be in L.J.B.’s best interest. [ 43 ] It goes without saying that it is in a child’s best interest to have a safe, close, nurturing and loving relationship with his or her mother. Mr. D.H. acknowledges this fact and is open to L.J.B. having contact with Ms. J.D.B. Mr. D.H., however, has some well- founded concerns about Ms. J.D.B. having contact with L.J.B. due to her substance abuse issues and emotional volatility. [ 44 ] The evidence supports the conclusion that L.J.B. is not very attached to Ms.

J.D.B. and that he has increased behavioural issues after having contact with her. Mr. D.H. testified that it would not be in L.J.B.’s best interest to have any contact with his mother until he has had a chance to settle into his new life with his father in Alberta. After that, Mr. D.H. testified that it would be in L.J.B.’s best interest to have contact with Ms. J.D.B. only if she is “clean” and only if the contact is supervised. I agree. [ 45 ] Commencing October 1, 2014, I order that Ms. J.D.B. have reasonable contact with L.J.B. in a manner and supervised at the discretion of Mr. D.H.

The contact may consist of telephone calls, Skype communications or personal visits and may be supervised by Mr. D.H. or any third party as agreed by Mr. D.H. and Ms. J.D.B. I also order that Ms. J.D.B. not consume, possess or be under the influence of alcohol or drugs, except medications used by Ms. J.D.B. in accordance with a prescription issued to her by a licensed physician, during her contact with L.J.B. Mr. D.H.’s Application to Cancel Child Support [ 46 ] On February 11, 2011, the Honourable Judge Frame made a consent child support order that Mr. D.H. pay Ms. J.D.B. $395 per month for the support of L.J.B.

The amount of child support was determined in accordance with the Federal Child Support Guidelines , SOR/97-175 (the “ Guidelines ”). L.J.B. was taken into care on June 27, 2012 and, on September 20, 2012, Mr. D.H. applied to cancel the child support order. [ 47 ] Section 152(1) and (2) (

a) of the FLA empower the court to terminate a child support order prospectively or retrospectively “when a change in circumstances, as provided for in the child support guidelines, has occurred since the order respecting child support was made”.

Section 14 (

a) of the Guidelines , allows for variations of child support where there has been “any change in circumstances that would result in a different child support order…” [ 48 ] In this case, the fact that L.J.B. was taken into care on June 27, 2012 is the type of change in circumstance contemplated by s. 14 (

a) of the Guidelines . As of that date, Ms. J.D.B. no longer had L.J.B. in her care and was not entitled to child support payments from Mr. D.H. Accordingly, I cancel the February 11, 2011 Order of Judge Frame effective June 27, 2012. Mr. S.N.’s Application for Sole Guardianship of H.W.B. and I.J.B. [ 49 ] On April 25, 2012, the Honourable Judge Rohrmoser made an order granting sole interim guardianship and sole custody of H.W.B. and I.J.B. to Ms. J.D.B. Mr. S.N. did not attend the court hearing though he had been served with Ms. J.D.B.’s Application and Notice of Motion. Judge Rohrmoser also ordered that, if Mr.

S.N. did not apply to set aside the order within 30 days of having received notice of the order, the order would become final. [ 50 ] There is nothing on the court file nor was any evidence given to establish when Mr. S.N. received notice of Judge Rohrmoser’s order but Mr S.N. applied on March 4, 2013 to cancel Judge Rohrmoser’s order and to have that order changed to grant him sole custody and sole guardianship of H.W.B. and I.J.B. [ 51 ] Mr. S.N.’s application was filed under former legislation but I will be determining the issues under the FLA .

The FLA has provisions dealing with the transition from the former legislation to the FLA . Under s. 251 of the FLA , Judge Rohrmoser’s order means that Ms. J.D.B. currently has sole guardianship and, therefore, sole parental responsibilities over and parenting time with H.W.B. and I.J.B. I will be dealing with Mr. S.N.’s application as an application for sole guardianship. [ 52 ] Because of Judge Rohrmoser’s order, Mr. S.N. is not a guardian of either H.W.B. or I.J.B. so he must meet the requirements of s. 51 of the FLA and Rule 18.1 of the Rules . In order to grant Mr.

S.N. sole guardianship, I also have to decide whether to terminate Ms. J.D.B.’s sole guardianship of H.W.B. and I.J.B. [ 53 ] While Ms. J.D.B. supports Mr. S.N.’s application for sole guardianship of H.W.B. and I.J.B., the Director is opposed. The Director’s objection to Mr. S.N. having guardianship of H.W.B. and I.J.B. is based on the children’s circumstances and the Director’s view that Mr. S.N. is not capable of meeting his children’s needs. I will, therefore, first outline the children’s circumstances and needs and then analyse the Director’s concerns about the suitability of Mr.

S.N. to become their guardian. [ 54 ] I.J.B. was born on March 9, 2012. She was just over three months old when she was taken into care on June 27, 2012. Social worker O’Dell testified, and I accept, that I.J.B. was developmentally delayed as a result of lack of stimulation when she was taken into care. [ 55 ] I.J.B. was assessed on June 18, 2013 by Crystal Hegarty of the Kamloops Infant Development Society (“KIDS”). I.J.B. was 15 months old at the time. According to the KIDS assessment, I.J.B. is in the expected range of development in the areas of fine motor

and adaptive development while she is slightly behind in the areas of gross motor, language and personal-social development. The KIDS assessment sets out a number of recommended strategies to support and encourage I.J.B.’s development in all areas. None of the strategies requires special training or expensive equipment. Only time, attention and willingness are needed. [ 56 ] Social worker O’Dell reports that no cognitive deficits have been identified in I.J.B. and I accept Ms. O’Dell’s view that I.J.B. is “catching up”.

As almost a year has passed since the KIDS assessment, new strategies will be required to continue to support and encourage I.J.B.’s development. Though a person with limited parenting experience may need support services to fully understand and meet I.J.B.’s needs, I have no reason to think that it will be difficult to identify and implement appropriate strategies for I.J.B. As social worker O’Dell testified, what I.J.B. really needs is a permanent, stable home. [ 57 ] H.W.B. was born on February 18, 2010 and was almost two and a half when he was taken into care.

Social worker O’Dell testified, and I accept, that H.W.B. was significantly developmentally delayed when he was taken into care. H.W.B. displayed anxiety, tantrums, aggression, sleep disruption, delayed speech, difficulties with basic tasks such as feeding himself, difficulties transitioning and other inappropriate behaviours. [ 58 ] Dr. C. Swanson, a Registered Psychologist with the Interior Health Children’s Assessment Network Autism Spectrum Diagnostic Team, authored a comprehensive report on H.W.B. dated June 3, 2012. H.W.B. was three years and two months old at the time.

While the report says that H.W.B. is “generally fun loving” and can be “a sweet boy with a wonderful smile”, the report also makes it clear that H.W.B. faces many challenges. [ 59 ] Dr. Swanson finds that H.W.B. does not suffer from an Autism Spectrum Disorder but test results indicate that H.W.B.’s overall intellectual profile is in the upper end of the Low Average range. His adaptive functioning scores in the Extremely Low to the Low Average range. Dr. Swanson concludes that H.W.B.’s profile “is best described as affected by a history of neglect, trauma and significant attachment injuries.” [ 60 ] Dr.

Swanson recommended further assessment of H.W.B.’s mental health and attachment issues. Dr. Swanson also provided four full pages of additional recommendations. The 27 recommendations include everything from parenting pointers to help build H.W.B.’s communication, fine motor and other skills to accessing services for “attachment focused therapy” to utilizing various computer applications to help improve H.W.B.’s functioning. [ 61 ] Social worker O’Dell described H.W.B. as a “work in progress”.

She notes that caring for H.W.B. has been “tough” for his foster parents, even though they have special training. [ 62 ] My conclusion is that H.W.B. has special needs but can flourish with love, attention, stability, safety and access to a variety of services. [ 63 ] The Director does not question Mr. S.N.’s sincerity or motivation but raises the following concerns regarding Mr. S.N.’s ability to meet the needs of H.W.B. and I.J.B.: 1. There is a lack of objective evidence to support what Mr. S.N. has said about himself and his ability to care for H.W.B. and I.J.B.

Specifically, there was no evidence given by Mr. S.N.’s previous partners, there was no evidence that Mr. S.N. can rely on the support of family and/or friends to raise H.W.B. and I.J.B. and there was no home study presented to demonstrate the suitability of Mr. S.N.’s home for the children. 2. Mr. S.N. has had some mental health issues. Mr. S.N. left Ms. J.D.B., L.J.B. and H.W.B. in Kamloops in September 2011 to return to Windsor to look for work. After getting himself established, he intended to send for Ms. J.D.B. and the children. Instead, Ms.

J.D.B. unceremoniously informed him that their relationship was over and that she had taken up with another man. When Mr. S.N. returned to Kamloops in April 2012 to try to work things out, Ms. J.D.B. did not allow Mr. S.N. to see the children. Mr. S.N. ended up at the Royal Inland Hospital in Kamloops where he was reported to have been feeling overwhelmed, hopeless and suicidal. Mr. S.N. also apparently accessed mental health supports in Ontario prior to returning to Kamloops. The Director argues that Mr. S.N. should have but did not produce any reports regarding his mental health at trial. 3. Mr.

S.N. has not demonstrated any stability in his life. In his younger years, he was described as a “drifter” and in the more recent past, he has moved between Kamloops, Windsor, Newfoundland and Nova Scotia. He has not maintained stable relationships or employment. 4. Mr. S.N. lacks parenting experience. He does not see his other child. When he was parenting L.J.B. and H.W.B. with Ms. J.D.B., he did not intervene to protect L.J.B. from Ms. J.D.B.’s physical and emotional abuse. The Director says that it was an offence for Mr. S.N. not to report Ms. J.D.B. to the appropriate authorities. 5. Mr.

S.N. admits to daily marijuana use to help him sleep. The Director argues that Mr. S.N.’s marijuana use is not “social” and points out that he does not have a medical certificate permitting him to use marijuana. 6. Even though H.W.B. and I.J.B. have been in care and there was a finding on December 24, 2012 that they were in need of protection, the Director argues that Mr. S.N. has not demonstrated any commitment to parenting H.W.B. and I.J.B. Mr.

S.N. has not returned to Kamloops to form a closer relationship with them, has not taken any parenting courses to ensure he is able to meet their needs and has not accessed any other services to ensure that proper supports will be available in the event I grant Mr. S.N. guardianship and return H.W.B. and I.J.B. to him. Mr. S.N. says he has been unable to return to Kamloops for his children for a variety of reasons, including fear of Ms. J.D.B. and her new partner, lack of money and being unable to hitch-hike across the country due to a sore back. Mr.

S.N. says that he has not accessed services and programs because of waiting lists. The Director describes Mr. S.N.’s “excuses” as “specious”. [ 64 ] While all of the Director’s arguments have validity, there is another side to the story.

[ 65 ] The Director’s decision to remove H.W.B. and I.J.B. from Ms. J.D.B.’s care was due entirely to Ms. J.D.B.’s struggles and had nothing to do with any misconduct by Mr. S.N. [ 66 ] Mr. S.N. has gone to significant lengths to stay in contact with H.W.B. and I.J.B. by telephone and Skype and his supervised visits with them in Kamloops have gone very well. He has established a meaningful relationship with his children. [ 67 ] Mr. S.N. has established a good relationship with Mr. D.H. and wants to work with Mr. D.H. to ensure that H.W.B. and I.J.B. maintain their bond with L.J.B. [ 68 ] Mr.

S.N. has no significant criminal history. During the trial, Mr. S.N. acknowledged a relatively minor youth record and presented a negative adult criminal record check. [ 69 ] While it is true that Mr. S.N. did not report Ms. J.D.B.’s physical and emotional abuse of L.J.B., Mr. S.N. was in a difficult situation. The woman he loved was mistreating a child that, biologically, was not his. Though Mr. S.N. asked Ms. J.D.B. to stop, he recognizes that he should have done more. Mr. S.N. says he learned from the experience and would handle the situation differently now. [ 70 ] Mr.

S.N. is an acknowledged daily user of marijuana but maintains that his use is modest and raises no safety issues for the children. [ 71 ] Regarding his mental health issues, Mr. S.N. deserves credit for seeking help. The situation would be worse if he had not done so and it shows a certain level of maturity that Mr. S.N. recognized when he needed help. [ 72 ] Finally, the fact that Mr. S.N. has been on the move reflects his financial reality. He has a limited education and is restricted to looking for relatively low skilled work. It is to his credit that he is willing to move to find employment. That Mr.

S.N. is and will continue to have limited financial resources does not mean that he cannot parent. [ 73 ] Throughout the trial, Mr. S.N. presented as a sincere, respectful and patient person. Generally, he acknowledged his shortcomings and struggles. He was calm in the face of a stern cross-examination. At the end of the day, I see Mr. S.N. as having the potential to be a good parent to H.W.B. and I.J.B. but conclude that he has not provided sufficient evidence to convince me that it is in H.W.B. and I.J.B.’s best interest to declare him to be their guardian. That said, rather than dismiss Mr.

S.N.’s guardianship application, I adjourn it to give him an opportunity to demonstrate his capacity to meet the needs of his children. I will outline the steps I expect Mr. S.N. to take later in these reasons. [ 74 ] Before moving on to address Ms. J.D.B.’s guardianship of H.W.B. and I.J.B. and the Director’s application for a CCO for H.W.B. and I.J.B., I pause to state that I do not require Mr. S.N. to file an Affidavit in Form 34. I find that Mr.

S.N. has substantially complied with the requirements of Rule 18.1 by providing testimony addressing the topics covered by Form 34 and by submitting a negative criminal record check. He has not provided child protection or Protection Order Registry checks but I heard extensive testimony from social worker O’Dell on child protection issues and the only file that could contain a protection order is already before me. In short, there is nothing to be gained by requiring Mr. S.N. to submit an Affidavit in Form 34. [ 75 ] For the reasons I gave for terminating Ms. J.D.B.’s guardianship of L.J.B., I conclude that Ms.

J.D.B. is not able to responsibly exercise any of the parental responsibilities outlined in s. 41 of the FLA over H.W.B. and I.J.B. I find that it is in H.W.B. and I.J.B.’s best interest to terminate Ms. J.D.B.’s guardianship of them and I make that order. Ms. J.D.B.’s Right to Contact with H.W.B. and I.J.B. [ 76 ] Ms. J.D.B.’s FLA application for contact with H.W.B. and I.J.B. can only be decided if I ultimately grant guardianship to Mr. S.N. and return the children to him. Accordingly, as I have done with Mr. S.N.’s guardianship application, I adjourn Ms.

J.D.B.’s application for contact with H.W.B. and I.J.B. [ 77 ] I will deal with Ms. J.D.B.’s access to H.W.B. and I.J.B. in my analysis of the Director’s application for a CCO for H.W.B. and I.J.B. The Director’s Application for a CCO for H.W.B. and I.J.B. [ 78 ] The Director seeks a CCO for H.W.B. and I.J.B. for the same reasons the Director opposed Mr. S.N.’s guardianship application. The Director’s application has merit but, after considering ss. 49(4) and (5) of the CFCSA , I decline to make the order sought. My reasons are: 1. Mr. S.N. is willing and may be able to resume custody of the children; and 2.

If Mr. S.N. takes appropriate steps (which I will outline below), there is, in my view, a significant likelihood that he will be able to meet his children’s needs. [ 79 ] As indicated above, I see potential in Mr. S.N. and, in my view, the appropriate disposition of the Director’s application for a CCO is to make a “last chance” order under s. 49(7) (

c) of the CFCSA . This will give Mr. S.N. an opportunity to satisfy me that he can be made a guardian for H.W.B. and I.J.B. and that it would be in his children’s best interest to return them to him. [ 80 ] Accordingly, I order that H.W.B. and I.J.B. remain in the temporary custody of the Director for six months. I also order that, during this time, Mr. S.N. and Ms. J.D.B. have reasonable access to H.W.B. and I.J.B. in a manner and to be supervised at the discretion of the Director. [ 81 ] Mr. S.N. has struggled with accessing supports. This is not unusual and I have concluded that Mr. S.N. needs extra help.

Therefore, during the next six months, I expect Mr. S.N. and the Director to take certain steps. [ 82 ] I expect the Director to contact the Children’s Aid Society in Windsor to inform them of H.W.B. and I.J.B.’s circumstances and needs and of Mr. S.N.’s potential to be declared their guardian. [ 83 ] I expect the Director to work with the Children’s Aid Society to have them visit Mr. S.N.’s home to determine whether it is suitable for H.W.B. and I.J.B. and, if it is not, to advise whether Mr.

S.N. can access more suitable housing in the event that the children are returned to him. [ 84 ] I expect the Director to work with the Children’s Aid Society to identify appropriate assessments and/or programs for Mr. S.N. to complete to be in the best possible position to parent his children. I then expect Mr.

S.N. to undergo any recommended assessments and to enrol in and, if there is time prior to the next court appearance, complete any recommended programs. [ 85 ] I expect the Director to work with the Children’s Aid Society to identify appropriate assessments, programs and/or resources for H.W.B. and I.J.B. in Windsor to ensure they have the best chance to flourish if they are returned to Mr. S.N. [ 86 ] Finally, because I have concerns about the true extent of Mr. S.N.’s drug use, I expect the Director to work with the Children’s Aid Society to assist Mr. S.N. to complete a three month hair strand drug test.

If Mr. S.N. cannot afford to pay for such a test, I expect the Director to work with the Children’s Aid Society to identify alternative sources of funding for the test. [ 87 ] The order under s. 49(7) (

c) of the CFCSA is called a “last chance” order because s. 49(9) of the CFCSA provides that “not sooner than 60 days before a temporary custody order under s. 49(7) …(

c) expires, the Director may apply… for a continuing custody order.” If that application is made, the court, after considering the factors in s. 49(6), can only make one of two orders. The court may only order that a child “be placed in the continuing custody of the Director” or “returned to the parent apparently entitled to custody”. There is an “all or nothing” outcome if the proceedings get to that stage. [ 88 ] I am hopeful that Mr. S.N., with the assistance of the Director and the Children’s Aid Society, will be able to satisfy me that he is capable of parenting his children.

They have been traumatized and have a heightened need for stability, structure and support. They need more than good intentions. [ 89 ] To ensure the file is moving along appropriately, I seize myself of the FLA and CFCSA applications affecting H.W.B. and I.J.B. and order that the parties to these applications attend a Family Case Conference before me in approximately four months’ time with the date to be coordinated by the Judicial Case Manager. [ 90 ] Mr. Weiss will prepare the order on the Director’s file, Ms. Muliner will prepare the order on Mr. S.N.’s file and the Registry will prepare the order on Mr.

D.H.’s file. ________________________ L.S. Marchand Provincial Court Judge