S.B. v. L.C. Date:, 2014 BCPC 207

Citation: S.B. v. L.C. Date: 20140902 2014 BCPC 0207 File No: 14670 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.B. APPLICANT AND: L.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Carolyn Oien

Not appearing but a party to the action: L.C. Counsel for the Director: Mr. Joaquin Mariona Place of Hearing: Kamloops , B.C.

Date of Hearing: August 13, 2014 Date of Judgment: September 2, 2014 [ 1 ] This is an application by S.B. and S.B.(1) for an order that they have joint guardianship of L.B., born March 3, 2012; that S.B. and S.B.(1) have all parental responsibilities with respect to L.B.; that L.C. cease to be a guardian of the child, with no parenting rights or contact with the child. [ 2 ] S.B.(1) has filed the appropriate records checks to apply for guardianship of the child, which records checks have been returned clear. [ 3 ] The Ministry of Child and Family Development supports the application so long as primary residence remains with S.B.(1), and it not be changed without prior notice to the Ministry. [ 4 ] L.C. was served substitionally but failed to respond to the application.

BACKGROUND [ 5 ] S.B. and L.C. are the parents of the child, L.B. The parents began a relationship in 2011, moving into an apartment together in June, 2011. [ 6 ] L.B. was born on March 3, 2012. At the end of that month, the Ministry for Child and Family Development became involved with the family as a result of an altercation between L.C. and S.B. They had been arguing and it escalated into physical violence.

L.B. was with his parents when they attended the hospital to treat L.C. for a back and shoulder injury as a result of that altercation. [ 7 ] Subsequent to the March 3 incident, there was a further altercation between L.C. and S.B. resulting in the police laying charges against S.B. [ 8 ] In mid-July, 2012, T.B., who is S.B.’s mother, was called to S.B.’s and L.C.’s apartment by S.B. L.C. and S.B. were arguing and T.B. put herself between them. L.C. punched T.B. in the face, knocking off her glasses and cutting her on the cheek under her eye. L.C. made disparaging remarks about T.B.’s family.

T.B. and her son left the apartment because L.C. would not stop yelling. Following this altercation and as time went on, T.B. had serious concerns about L.C.’s temper. She disclosed this concern to several Ministry workers to no avail. [ 9 ] In August, 2012, L.C. moved to Clinton to live with her mother and step-father. S.B. understood L.C.’s relationship with her mother was volatile and it caused him concern. He was also concerned that L.C.’s mother had drug and alcohol addictions and had herself been involved with the Ministry in the past.

During the time that L.B. was living with L.C.’s family in Clinton, S.B. visited his son as often as possible. [ 10 ] L.C. returned to Kamloops in early 2013 and began sharing an apartment with a female friend. S.B. would stop there eventually daily to pick up L.B. and take him to S.B.(1)’s home for a few hours. At this time, S.B. filed an application for joint custody and guardianship in order to remain involved with the upbringing of his son. [ 11 ] In April and May of 2013, S.B. became concerned about L.C.’s increased use of alcohol and use of MDMA.

On one occasion, L.C. asked S.B. to take L.B. for a long weekend so she could go away. Arrangements were made for S.B. to pick up L.B. on the Thursday night and L.C. would pick him up the following Monday. L.C. did not return on the Monday or contact anyone to let them know where she was. She returned to Kamloops the following Friday and L.B. was returned to her while S.B. was at work. [ 12 ] T.B. had the care of L.B. during the week that L.C. was gone. She found that he was extremely hungry when he came into her care and was small for his age.

She felt that he was not developing for a child his age which concerns her daughter, S.B.(1), shared with her. Together, they went to the Ministry and spoke to a social worker. The social worker assured the two S.B.(1) that she had spoken to L.C. and that L.B. would be seen by an infant development worker for assessment. The end result was that the case worker found no concerns. [ 13 ] On May 30, 2013, there was another physical altercation between S.B. and L.C. when S.B. picked up L.B. for a visit. The RCMP were called.

S.B. was charged and he received a Conditional Discharge. [ 14 ] At the beginning of June, 2013, S.B. was going to pick up L.B. when he received a call from L.C.’s roommate. She told S.B. to pick up L.B.’s belongings if he wanted them because she was moving out. L.C. had left with L.B. and had not notified S.B. or anyone else where she was. Although S.B. approached the Ministry and the RCMP to locate L.B., he was unable to obtain assistance. He did not learn where L.B. was during that summer and attempts to contact L.C. were futile.

L.C.’s mother and step-father refused to assist S.B.’s family in locating L.C. or L.B. [ 15 ] During the summer of 2013, S.B. and his family had formed concerns that L.B. was not thriving. He was not gaining weight, growing or picking up language that would have been appropriate for a child of his age, in their view. They approached the Ministry but did not receive assistance.

[ 16 ] On August 7, 2013, S.B. obtained an order prohibiting L.C. from removing L.B. from the City of Kamloops. He had not heard from her at that point since the beginning of June, 2013 and had only heard from acquaintances that L.C. was living in Kelowna. S.B. was becoming frustrated with the lack of assistance from the Ministry or from the RCMP. S.B.(1) was supposed to be a go-between for himself and L.C. but L.C. was not returning S.B.(1)’s phone calls. In this time, S.B. saw a picture of his son on Facebook. L.B.’s eye was turned in to such a degree that it upset and concerned S.B. He took the photo to Dr.

Weihan and to the Ministry. The Ministry insisted that L.B. was safe but S.B. was not satisfied. He took his concerns to a Team Leader at the Ministry and to the RCMP. T.B. raised this same concern with the Ministry who advised that they could not accept the photo as evidence of anything and “it was just hearsay”.

If that is so, it is a stunning comment from a resource that relies so heavily on hearsay in effecting protection of children. [ 17 ] On September 6, 2013, S.B. received a telephone call from a Ministry worker in Kelowna advising that L.B. had suffered a traumatic injury and was being apprehended by the Ministry. He was directed to attend a meeting in Kelowna the following Wednesday. [ 18 ] Ironically, T.B. and her husband met with the RCMP in Kamloops on September 6 to follow up on their reported concerns. The police assured them they had seen L.B. and he was in no immediate danger.

It was upon leaving the police station that they heard from S.B. that L.B. had been apprehended. They went with S.B. to Kelowna for the meeting with the Ministry. [ 19 ] Unbeknownst to S.B. at the time, L.B. was taken to the hospital and seen by Dr. Carolyn Baba on August 29, 2013. The Clinical Outpatient Report was provided to me. It indicates that L.B.’s “parents” had noticed his eye turning inwards in or around August 8 or 9. They reported to the doctor that three days earlier he had been playing under the dining room table and stood up, hitting his head severely.

They did not take him for medical attention until August 29. Dr. Baba noted that he was small for his age but was active and responsive. In examination of the turned-in eye, she determined he had a mild concussion and organized him for an MRI. [ 20 ] On August 29, 2013, L.B. was scheduled for an urgent MRI. The results of the scan show that he had a bilateral subdural hematoma, but also showed evidence of a prior head injury. Dr. Baba consulted with another colleague, Dr. Steinbok who agreed that there was a suspicion of non-accidental injury.

L.B. was referred to Children’s Hospital. [ 21 ] On September 1, 2013, Children’s Hospital treated L.B. for the subdural hematoma. They noted there was evidence of acute and chronic hemorrhage. Their follow-up was recommended to the “parents”. [ 22 ] On September 4, 2013, a skeletal survey was done on L.B. It revealed not only the burr holes as a result of the surgery, but also a buckle fracture of the right wrist that the radiologist determined was approximately 10 days to 4 weeks old and an undisplaced buckle fracture on the right foot, also 10 days to 4 weeks old. Dr.

Hlady in the Child Protection Service Unit at Children’s Hospital noted that such a fracture of the metatarsal was uncommon in a child of that age. Dr. Hlady found the combination of fractures of subdural hematomas to be unusual and concerning.

He opined that the injuries could have been a result of a series of accidents but inflicted trauma also needed to be considered. [ 23 ] On September 6, 2013 while L.B. was in the hospital, a nurse who was unaware of the circumstances of L.B.’s medical concerns overheard an adult male voice “getting extremely frustrated with the child stating ‘that’s enough, that’s enough, that’s enough’”. On the fifth occasion, she heard a slap.

S.B. did not learn of the surgery or the injury to L.B. until he met with the Ministry in Kelowna. [ 24 ] L.B. was removed on September 6, 2013, both L.C. and her common-law partner, Kevin Alexander, became quite hostile. Both L.C. and Mr. Alexander were reported to be yelling. L.C. was also swearing and kicked a chair. She told the social workers that they had better leave the room. Mr. Alexander made suicidal comments when they left. He removed L.B.’s baby seat out of the car and threw it on the sidewalk before he and L.C. drove away. [ 25 ] As a result of his injuries, L.B. is blind.

He has since the making of the affidavit in July, 2014 shown some signs of improvement. His size has also improved. He has gone from 3 rd percentile for height and weight to approximately the 46 th percentile. [ 26 ] Since the removal, L.B. was released to a foster parent and transferred back to Kelowna. S.B. and his family were able to visit L.B. for a couple of hours twice a week. As of Thanksgiving 2013, they were able to pick him up on Thursdays and return him on Sundays. They had L.B. for 10 days over Christmas.

At the end of January 2014, L.B. was placed with S.B.(1) in a restricted foster care arrangement. [ 27 ] On November 28, 2013, S.B. obtained an order naming him as a guardian with all parenting responsibilities of the child and placing primary residence of the child with him at the conclusion of the Kelowna child protection file. L.C. was granted reasonable and generous parenting time with the child, mutually agreed between the parties and Mr. Alexander was prohibited from having any contact or parenting time. [ 28 ] However, the social workers were not prepared to return L.B. to S.B.’s care.

This resulted in the restricted foster placement with S.B.(1) from the end of January, 2014. The Ministry was prepared to continue this arrangement so long as S.B.(1) applied for joint guardianship with S.B.. [ 29 ] L.C. last saw L.B. on December 24, 2013. She has not had contact with the social workers or any further visits with L.B. since then. There was a scheduled visit on March 5, 2014 which was cancelled on March 4, 2014. [ 30 ] L.C. was directed to various courses for counselling by the Ministry, which L.C. has not engaged in.

L.C. has only attended one meeting with the Ministry and left it prior to devising a plan of care. She failed to attend a second meeting. [ 31 ] As I have said, L.C. has also failed to respond to this application although duly served with notice of it. [ 32 ] S.B.’s plan is to have L.B. continue to live with S.B.(1) until he is able to provide a proper home for L.B. and properly care for him. He is seeing Dr. Weihan, a consulting psychiatrist, to develop coping skills.

[33] S.B. is satisfied that S.B.(1) and her husband are very involved with L.B.’s care and jointly make decisions that are in his bestinterests. He is confident that neither they or his parents would support a transfer of L.B. to S.B.’s care until they are satisfied that S.B.is capable of caring for him properly. THE LAW [34]

Section 39 provides as follows: 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.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that aparent is not 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.

(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does notbecome a guardian of that child by reason only of the marriage or marriage-like relationship. [35] Although awkwardly worded, I was satisfied that s. 39 granted a Provincial Court jurisdiction to make declarations ofguardianship or non-guardianship in my decision J.L.M. v. G.A.T., 2013 BCPC 96 , 2013 B.C.P.C. 96 at paragraph 10: [10] I am satisfied that, while the drafting of the legislation is not particularly good, the meaning is clear.

There is no distinctioncontained in s. 39 between the Provincial Court or the Supreme Court. It is clear that the court, which includes the Provincial Court, maymake an order that a person who was a guardian is no longer a guardian. The

section would be rendered meaningless for theconsiderable volumes of files brought before this court daily to interpret this

section otherwise. The Division as a whole deals withidentifying and appointing guardians as well as setting out the responsibilities, and with terminating guardians. I am satisfied that I amempowered to make an order that G.A.T. is not a guardian of K.A.M. [36] Around the same time, my brother Judge Merrick in his decision, D. v. D., 2013 BCPC 135 , 2013 B.C.P.C. 135applied s. 51 for the termination of guardianship.

While Judge Merrick was dealing with the appointment of a non-deemed guardianunder s. 51, and was applying the termination provisions of s. 51, his observations with respect to termination of guardianship applyequally to s. 39. At paragraph 23 to 25, he finds as follows: [23] There are no specific criteria listed in s. 51 of the Family Law Act with respect to termination of guardianship, but as that

section iswithin

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

It must be remembered that once a parent is no longer a guardian, that parentloses 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. [37] I am satisfied that L.C., should she remain a guardian, should have none of the parental responsibilities set out in s. 41. She hasdemonstrated that she not only poses a danger to L.B. but reacts in a hostile and inappropriate manner despite being confronted with avery serious injury to her son.

Her lack of subsequent cooperation in creating a plan of care for L.B. and her persistent lack ofcommunication with the Ministry or S.B. throughout the two years of L.B.’s life even before the injury make her an inappropriatecandidate for exercising any of those parental responsibilities. [38] L.C.’s complete lack of care of L.B. in the early stages of his injury prove her to be an inappropriate guardian. [39] I find that these are precisely the extreme situations the court must contemplate when terminating a guardianship. [40] S.B.(1) is 26 years old and her husband, Paul, is 27.

She had been working at Shores Retirement Centre until L.B. came intoher care. She left her work to care for him. They also have a five year old daughter at home. Since coming into their care, L.B. hasbecome very attached to their family and looks up to S.B.(1)’s husband for comfort and protection. He is talking and saying up to threeword sentences. When he first came into their care, he would scream and want to be held constantly. He has grown emotionally in their

care. They take him to all of his medical professionals including his physician, pediatrician, and specialists at the Children’s Hospital, as well as the hearing and speech therapist at the Family Therapist Centre. They took him to his six month check-up a Children’s Hospital and his eyes are slightly improving. [ 41 ] S.B.(1) said that she and her husband are able to care for L.B. and to provide for his emotional, social, financial and special needs. They appreciate that he will require special care because of his injuries.

S.B.(1) had been an engaged and a capable caregiver before L.B. came into her care and since. [ 42 ] I find that L.C. is no longer a guardian of L.B. I find that S.B. is a guardian under s. 39 and appoint S.B.(1) as a guardian under s. 51. They shall be joint guardians with all of the parental responsibilities set out in s. 41. L.B.’s primary residence shall continue to be with S.B.(1) and shall not change except with prior notice to the Ministry in writing. __________________________ S.D. Frame Provincial Court Judge