L.M.M. v. T.N.T., 2022 BCPC 82

Citation: L.M.M. v. T.N.T. 2022 BCPC 82 Date: 20220428 File No: 14704 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.S.M. and L.M.M. APPLICANTS AND: T.N.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Applicant, L.M.M: J. Park Counsel for the Respondent: K. Groves Place of Hearing: Abbotsford , B.C. Date of Hearing: April 4, 5, 6 and 7,2022 Date of Judgment: April 28, 2022

INTRODUCTION [ 1 ] This case centres around the best interests of an eleven year old boy named J.M (“J.”). His paternal grandmother is L.M.M. (“Ms. M”) and she has been diligently caring for him since the fall of 2014, notwithstanding my Consent Order earlier that year which granted only the parents guardianship and shared parenting time. By applications filed November 1, 2019 and August 20, 2020, Ms. M. now seeks a final Order varying the 2014 Order and granting her guardianship, primary residence, and other relief. [ 2 ] J.’s mother, T.T. (“Ms.

T.”), has only seen J. for regular day visits on Saturdays since November of 2021. Prior to that time, she had not seen her son since late 2014. Ms. T. claims Ms. M. resisted her early attempts to see him, whereas Ms. M. maintains that Ms. T. left the boy in her care and essentially abandoned him. [ 3 ] Ms. T. is deaf and she is a member of the [omitted for publication] Band. Her first language is sign language, and she had the assistance of sign interpreters at trial. She recognizes that Ms.

M, has been J.’s primary caregiver, and by a motion dated August 23, 2019 and her Reply filed February 11, 2020, she now seeks a varied form of parenting arrangements from the 2014 Order with increased parenting time, to include three weekends per month and shared holidays. Ms. T. has another child named C. who is now eight and who has been in her care since birth. [ 4 ] The father, Ms. M.’s son, has been entirely absent from J.’s life since 2014, and both Ms. M. and Ms. T. agree he should be removed as a guardian.

They do not even know the father’s whereabouts. [ 5 ] I was pleased to hear J. is a great boy with boundless energy. However, he is not reaching his potential academically, and a psycho-educational assessment needs to be undertaken. [ 6 ] Unfortunately, the grandmother and the mother are like oil and water, and this is the chief obstacle in this case. To say they cannot communicate with each other would be an understatement. The grandmother has been a caring provider for J., but she is rough around the edges and does not use a cell phone.

On the other hand, the mother is deaf and primarily communicates with the paternal side by text or email. She realizes the potential for arguments, so she prefers to text with the grandmother’s daughter, E.B. [ 7 ] Transportation is another vexing issue because neither party has a working vehicle and incomes are low. J. lives with his grandmother in Abbotsford, while the mother lives with her spouse and other son in Vancouver. [ 8 ] In my decision, I must first decide whether there has been a material change in circumstances since my Order of August 20, 2014, although it is obvious that test has been met.

I must then craft a new Order to reflect the parenting arrangements which serve J.’s best interests. HISTORY OF J.’S CARE [ 9 ] Ms. T. is a 31-year-old indigenous woman who lives in Vancouver. She had a relationship with J.M., and J. was born on June 21, 2010. The parents separated in 2011. [ 10 ] On August 20, 2014, the parents and the grandmother agreed to a Final Consent Order which I granted. They all had counsel. The mother and the father were the only named guardians, and they shared parenting time of J. on a weekly basis. The grandmother’s contact time occurred during her son’s parenting time. [ 11 ] Ms.

M. testified that she had been responsible for much of J.’s care, so she cried when she left the courtroom on August 20, 2014. According to Ms. M., she has been J.’s primary caregiver for most of his life, and his parents lived with her when the child was very young. [ 12 ] I can only say that Ms. M. had a lawyer at the time of the 2014 Consent Order, and the parties consented to those terms without a trial. [ 13 ] According to Ms. T., the week on/week off arrangement lasted until October 10, 2014. She dropped off J. with the grandmother because the father was unavailable. Ms. M. never got J. back in her care.

When her parenting week was upcoming, she did text the father to tell him she would be unable to pick up the boy because she was out of town. The father developed a lung infection, so the grandmother was caring for J. [ 14 ] Between October of 2014 and January of 2015, Ms. T. attempted to contact the father and the grandmother by text to renew her parenting time. [ 15 ] According to Ms. M., the mother dropped off J. to her at a bus stop in Aldergrove with no explanation. This occurred in September of 2014, and she made no contact for five months. [ 16 ] In the texts in January of 2015, Ms.

T. tells the grandmother that she has been trying to reach the father without success, and she is “sure J. wants to see his mommy, his baby brother and his step dad.” Ms. M. responds in a text that the mother dropped off J. in September of 2014 without telling her why or for how long. Ms. T. countered that the drop off was October 10 th and not early September. [ 17 ] The reasons for the grandmother acquiring care of four-year-old J. are therefore in dispute, but the fact is she became his primary caregiver since September or October of 2014. Ms. M.’s daughter, Ms.

B., confirms that between 2015 and 2019, J. and his mother had virtually no contact by way of email, text, card or otherwise. The school principal gave similar evidence. [ 18 ] Ms. T. brought a notice of motion on August 23, 2019 to enforce her parenting time. Ms. M. responded with an application to terminate the 2014 Order and to apply for guardianship and other relief.

[ 19 ] Between 2014 and 2019, Ms. T. was very stressed about returning to court, and she asserts that Ms. M. did not respect her. The Provincial Deaf and Hard of Hearing Services could not assist her after 2018, when she aged out. She did attempt to see J. by stopping by the grandmother’s home a few times, and she got the police involved to no avail. [ 20 ] Ultimately, an interim Order was granted November 12, 2021, which gave the mother parenting time every Saturday from noon to 4:00 pm, and a video visit every Thursday evening. The grandmother was given primary residence on a without prejudice basis.

The mother was granted the ability to apply for J.’s Indian status with the [omitted for publication] Band. CURRENT CIRCUMSTANCES [ 21 ] Ms. M. is 55 years old and she is not currently working. At one time, she worked carrying out WCB inspections. She now has virtually no income, and she has not been receiving the child tax benefit for J. [ 22 ] Ms. M. lives in a basement suite with a roommate and J. Her daughter, E.B., lives upstairs with her spouse and three children aged 10, 8 and 2. Previously, Ms. M. and J. lived on a farm. [ 23 ] Ms. M. testified that her life revolves around J.

They wake up, have breakfast and go to school. She would usually have to stay at the school with J. because he would act out in class. He has difficulty paying attention and staying in the classroom. His behaviour is improving; he is in a regular class with a special education plan. [ 24 ] After school, J. has some playtime. He then showers, does some homework, has dinner and goes to bed. He is very healthy. J. has one close friend, and he is not involved with extracurricular activities at this time. Ms. B. corroborated her mother’s evidence about J.’s daily routines. R.B. also testified about Ms.

M.’s good care of J., whom she described as bright, friendly but somewhat impulsive. [ 25 ] J. needs psychoeducational testing, but that testing requires approval by a guardian and Ms. M. does not have guardianship. She and the school principal contacted Ms. T. about this issue in 2018. Ms. T. responded by email, saying she hoped J. was okay and the father needed to be consulted. She was not aware that the father was no longer involved in J.’s care and that he no longer lived with Ms. M. The psycho-educational assessment still has not been done, and Ms. T. now has no issue signing for the assessment. [ 26 ] Ms.

T. also believes J. needs counselling to address his feelings about his grandmother and her. She could get financial assistance from the [omitted for publication] Band for such counselling, particularly after J. acquires status. [ 27 ] J.’s former school principal, Ms. O., knew J. from Kindergarten to Grade 5. She described him as a tall, good-looking boy with a great sense of humour. He is energetic, gregarious and kind. He thrives on structure. The informal testing done on J. suggested his cognitive abilities were sound, but something was getting in the way of him reaching his academic potential.

He needed psychoeducational testing. [ 28 ] Ms. O. testified that Ms. M. has been with J. every step of the way, and he appears well-cared for. She never saw either of J.’s biological parents. [ 29 ] J.’s aunt, Ms. B., testified that J. was bullied at school recently. He has difficulty emotionally connecting to events around him. J. goes on family outings with the entire household. [ 30 ] Ms. M. recognizes that Ms. T. is uncomfortable communicating with her, so Ms. T. emails her daughter. Ms. M. does not use sign language but has some signing knowledge.

She does not have a cell phone but can use her daughter’s cell phone to text Ms. T., if necessary. Her daughter is prepared to facilitate communication between Ms. M. and Ms. T. [ 31 ] Ms. M. does not know why Ms. T. did not see her son between 2015 and 2021, but she has been seeing him on Saturday afternoons since the November 2021 Order. The mother also has IPhone calls with him on Thursdays. Some visits have been cancelled due to the pandemic and other issues. J. does not sign, so Ms. T. often brings her mother to interpret. [ 32 ] The visits went well until March 12, 2022, when J. came home in tears.

He missed two Saturday visits and IPhone calls since that time. Ms. M. is unsure what upset J., but Ms. B. spoke with J. right after the visit, and he said he was upset that his mother communicated about him living with her. [ 33 ] Ms. T. has a different perspective, and she believes J. was upset at the last visit because he slapped his younger brother across the head. He did not want to tell his mother about the incident, but he did tell his maternal grandmother. Ms. T. did respect his wish not to visit with her following that visit, and she did not feel well for the visit following that missed one. Ms.

T. has told J. where she grew up, but she did not upset him. [ 34 ] Ms. M. has provided the necessary guardianship affidavit and she does not have a criminal record or protection order history. There was some dated Ministry involvement. She has not heard from her son, the father in this case, for over five years. E.B. confirms that her brother, the father of J., has been homeless since 2015 and his whereabouts are unknown. He has not communicated with the child in any way. [ 35 ] As mentioned above, Ms.

M. does not have a functioning vehicle and her daughter borrows a vehicle to transport J. to an Abbotsford park for the mother’s visits. Ms. M. has no way to drive the child to Vancouver. [ 36 ] Ms. T., on the other hand, does not even have a driver’s licence but has assistance with transportation. Her cousin, Ms. J., has been driving her out to Abbotsford for the visits since the November 2021 Order was granted. Ms. J. works at UBC with an indigenous graduate initiative, and she is also a community liaison with the [omitted for publication] Band.

An appointment has been set up on April 26, 2022, to work towards J. getting status, and he is not eligible for services until he achieves status. It takes one year to get status approval and another year to get the status card.

[37] Ms. J. is prepared to continue to provide transportation for the visits, and she hopes to use Jordan’s Principle to access morefunding. Under Jordan’s Principle, Indigenous Services Canada ensures First Nations children can access the products, services andsupports they need while working on long term solutions. In the interim, there are two other drivers available when Ms. J. cannot drive.An Uber account would be a last resort. [38] Ms. T. lives with her fiancé and their eight-year-old son in a two-bedroom apartment in Vancouver.

If J. were to stay overnight,he and C. could each have separate bedrooms, and the adults would sleep in the living room. Ms. T. has lived in Vancouver for 11 years,and there is a large deaf community there with a good bussing system. [39] According to Ms. T., her visits with J. have gone very well since November of 2021, but it took him a while to warm up to herafter such a long absence. They play in the park, go to movies and restaurants, and go bowling or to picnics. Her mother or other familymembers are usually in attendance, and her mother helps her communicate with J. as he does not sign.

The mother and J. cancommunicate with each other using a translation app on her cell phone. Her other son, C., only went to the one visit. [40] M.T., the maternal grandmother, did testify and although she is deaf in one ear, she helps her daughter communicate with J.during visits. J. gets excited about events like bowling, but his attention can wander. He likes taking pictures with his Mom’s phone andhe loves petting dogs. M.T. does not currently have a driver’s licence. [41] Ms. T. now seeks parenting time three out of four weekends.

She would also like to divide summer holidays, Spring Break andother holidays evenly. She has not spent any holiday time with her son for many years. In the summer, she could take J. to the PNE,Science World or the Aquarium. [42] Ms. T. grew up in the Chase area and as mentioned above, she is a member of the [omitted for publication] Band. Ms. T. does notwork, and she receives Persons with Disability Benefits plus child tax benefits for her younger son. Her fiancé is also deaf and receivesdisability benefits. [43] Ms. T. has not been kept apprised of J.’s current school or his doctor. If Ms.

M. were to share guardianship with her, she wouldbe concerned that arguments could ensue about J.’s care and schooling. She feels Ms. M. does not respect her. She recognizes that J.wants to continue living with his paternal grandmother. [44] J. calls Ms. M. “Grandma” and his mother, Ms. T., “T.” CHANGE IN CIRCUMSTANCES [45] Under s.47 of the Family Law Act (FLA) and current case law, I can only change my Final Consent Order granted August 20,2014, if there has been a significant change in circumstances. A significant change in circumstances is obvious here.

Although theparents were named guardians with shared parenting time, the grandmother effectively became J.’s primary caregiver as of September orOctober of 2014. Ms. T. only began day visits in August of 2021. To be blunt, my 2014 Order quickly became a legal fiction. GUARDIANSHIP AND J.’S BEST INTERESTS [46] My task now is to craft a new Order which serves J.’s best interests under s.37 of the FLA. Under that section, I must considerJ.’s health and emotional well-being, his views, the strength of the relationships between J. and the significant people in his life, and thehistory of his care.

I am required to examine J.s need for stability, and the abilities of those who are or who seek to be his guardians. Imust also assess the appropriateness of arrangements that would require guardians to cooperate on issues affecting J. [47] I also must give careful attention to J.’s Indigenous ancestry when considering his best interests, as set out in H.(D.) v. M.(H.), (SCC), [1999] 1 SCR

Section 41(

e) of the FLA sets out the parenting responsibility to make decisionsrespecting J.’s cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child’saboriginal identity. The case law generally holds that the child’s cultural background is an important factor for me to consider, but it isnot an overriding factor in the analysis of J.’s best interests. [48] I can safely say that it is vital to reintegrate Ms. T. into J.’s life because she is his mother and she carries his Indigenous ancestry.However, even Ms.

T. recognizes that it is in J.’s best interests to remain in the primary care of his paternal grandmother. [49] My task is to maximize Ms. T.’ involvement and parenting time while at the same time reducing potential conflict between theparties. As stated in Young v. Young, (SCC), [1993] 4 S.C.R. 3, at paragraph 13, Ms.

T.’ parenting time “must be craftedto preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve its purpose.” However, itis also in J.’s best interests “to remove or mitigate the sources of ongoing conflict which threatened to damage or prevent thecontinuation of a meaningful relationship.” [50] To begin with, Ms. M. should be granted guardianship alongside Ms. T. As I said, my Consent Order from 2014 was a legalfiction, and Ms. M. has been diligently caring for J. since September or October of 2014.

His history of care has been with his paternalgrandmother, and he is very bonded to her. Ms. M. has attended to all of J.’s needs, including food, clothing, shelter and schooling. Shehas provided him with the structure he requires. Her guardianship affidavit is sufficient. [51] I was concerned that Ms. M. was not able to access some very basic things for J., such as the child tax benefit and thepsychoeducational assessment. Frankly, I am amazed she was able to enroll J. in school and do as much for him as she did without anyform of guardianship. [52] Ms.

M. is a little rough around the edges, and she does not get along well with Ms. T. Ms. T. felt resistance when she tried to re-establish her relationship with her son, and there is no doubt there were communication difficulties. Ms. M. does not use a cell phone, andMs. T. is deaf. Nevertheless, the fact is Ms. M. raised J. from the end of 2014 to 2021 with little involvement from either parent.

[ 53 ] I am pleased that Ms. M.’s daughter has served as an intermediary between the mother and grandmother. Most communication should continue to be by email or text through her, and the parties should consult each other on important issues affecting the child. [ 54 ] That said, certain impasses in the past have not served J.’s best interests. The inability to get J. a psychoeducational assessment has delayed educational assistance for him. On some issues, one guardian must have the final say with possible court review by the other guardian. In my view, Ms.

M. needs to have the final say on educational and health issues for J., and Ms. T. needs to have the final say on J.’s Indigenous status. [ 55 ] In this final Order, I will entrench my interim Order requiring J. to undergo a psychoeducational assessment. [ 56 ] Both parties are seeking that the father’s guardianship be terminated, and I agree. He has not seen J. since he was four years old, his whereabouts are unknown, and his own mother acknowledges he has had many struggles. By an Order granted October 22, 2021, I dispensed with the requirement to serve certain documents upon the father.

The father has not communicated with any party or the child for many years, and his continued guardianship of the child would only encumber the already strained relationship between mother and paternal grandmother. [ 57 ] I agree that private counselling for J. is a good idea, but both parties here have limited means and any cost for the counselling should be funded from sources like the [omitted for publication] Band, if possible. PARENTING TIME [ 58 ] Based on the position taken by both parties, it is clear that Ms. M. should have the primary residence for J.

He will continue to have good care and stability there. [ 59 ] However, I agree with mother’s counsel that an increase in mother’s parenting time will not so much change J.’s life as enrich it. The mother ought to have overnight visits every second weekend at her Vancouver home with the maternal family, including J.’s brother. The mother has had some five months of Saturday day visits and Thursday video visits, and it is time to move to longer weekend visits which occur less often to decrease the transportation times.

It is appropriate that these weekend visits start with the Mother’s Day weekend. [ 60 ] Most holidays should be shared, and the parties do not oppose a two week on/ two week off arrangement for the summers, with video calls with the other party on Thursdays. Such parenting time could allow J. time to attend aboriginal events in the Chase area. I recognize that J. will have to adjust to mother’s increased parenting time, and the mother has shown that she is willing to be flexible if J. needs a break. [ 61 ] I am not persuaded that Ms.

M. should bear the cost or responsibility of transporting J. for the mother’s visits. Ms. M. has a driver’s licence, but neither she nor her daughter have reliable vehicles at the moment. Moreover, Ms. M. has been raising J. with little income, no child support and, to my understanding, no child tax benefit. Ms. T. is also of limited means, but she does have the support of Ms. J. and other possible funding to pick up and drop off J. for her visits. I trust that funding will continue to be available in this regard using Jordan’s Principle. I am not requiring Ms.

T. to pay child support at this time given her low income. [ 62 ] For now, the exchanges should occur one hour after school ends to give J. some time to adjust. I firmly believe my Order can work in J.’s best interests if the guardians are willing to make it work and are flexible when adjustments are required. ORDERS [ 63 ] Based on my analysis of J.’s best interests, I grant the following Orders: 1. All prior Orders, including the Final Consent Order granted August 20, 2014, are cancelled. 2.

Upon the court being advised that the name and birth date of each child is as follows: J.T.M., born [omitted for publication]. 3. The court is satisfied that T.N.T. is the guardian of the child under s.39(1) of the Family Law Act (FLA). 4. Pursuant to s. 51(1)(

a) of the FLA, L.M.M. is appointed guardian of the child. 5. Pursuant to s. 51(1)(b)of the FLA, J.S.M.’s guardianship of the child is terminated; 6. Pursuant to s. 40(2) of the FLA, T.N.T. and L.M.M. will share equally all parental responsibilities for the child as set out in s. 41 of the Family Law Act : (

a) Making day to day decisions affecting the child and having day to day care, control and supervision of the child; (

b) Making decisions about where the child will reside; (

c) Making decisions respecting with whom the child will live and associate; (

d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) Subject to s. 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(

g) Applying for a passport, license, permit, benefit, privilege or other thing for the child; (

h) Giving, refusing or withdrawing consent for the child, if consent is required; (

i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) Requesting and receiving from third parties health, education or other information respecting the child, except in relation to health care provided pursuant to s. 17 of the Infants Act ; (

k) Subject to any applicable provincial legislation; (

i) Starting, defending, compromising or settling any proceeding relating to the child; and (ii) Identifying, advancing and protecting the child's legal and financial interests; (iii) Exercising any other responsibilities reasonably necessary to nurture the child’s development. 7. Parental Responsibilities must be exercised as follows: (

a) T.N.T. and L.M.M. will have the obligation to advise each other of any matters of a significant nature affecting the child; (

b) T.N.T. and L.M.M. will have the obligation to discuss with each other any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; (

c) T.N.T. and L.M.M. will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; (

d) In the event that T.N.T. and L.M.M. cannot reach agreement on a significant decision concerning the child’s health or education despite their best efforts, L.M.M. will be entitled to make decisions concerning the child’s education or health, and T.N.T. will have the right to apply for directions on any decision considered to be contrary to the best interests of the child, under s.49 of the Family Law Act . (

e) In the event that T.N.T. and L.M.M. cannot reach agreement on a significant decision concerning the child’s aboriginal identity or status with the [omitted for publication] Band despite their best efforts, T.N.T. will be entitled to make those decisions and L.M.M. will have the right to apply for directions on any decision considered to be contrary to the best interests of the child, under s.49 of the Family Law Act . (

f) If T.N.T. and L.M.M. cannot agree on a significant decision for any other parenting responsibility, they each have the right to apply to court to resolve the matter. (

g) All communication between T.N.T. and L.M.M. will be by text or email to E.B.’s cellphone or computer. 8. Each guardian will ensure that both guardians’ contact information are on the child’s contact form at school and at his doctor’s office by September 1, 2022. 9. Each guardian will ensure the child undergoes a psychoeducational assessment with School District 34, and they will follow the recommendations of the assessment. 10.

T.N.T. may enrol the child in counselling at her cost or through funding provided by the [omitted for publication] Band, and the sessions may occur during any guardian’s parenting time. 11. L.M.M. will have the primary residence for the child. 12. T.N.T. will have regular parenting time with the child as follows: (a) 3:30 pm on Friday, May 6, 2022, to 6:00 pm on Sunday, May 8, 2022, and every second weekend thereafter; (

b) T.N.T. will pick up the child from a Tim Horton’s in Abbotsford or such other location as the parties agree upon by text or email, and she will drop off the child at the same location. She will be responsible for transportation for all visits until further order of the court; (

c) by video or IPhone every Thursday from 6:00 pm to 6:30 pm; (

d) such other parenting time as the parties may agree upon by text or email through E.B. 13. T.N.T. will have holiday parenting time as follows: (

a) SPRING BREAK: 3:30 pm on the Friday preceding Spring Break to 3:30 pm the following Friday in even numbered years; and 3:30pm on the Friday in the middle of Spring Break to 6:00 pm on the Sunday preceding the end of Spring Break in odd-numbered years; (

b) EASTER: 3:30 pm on the day before Good Friday to 6:00 pm on Easter Saturday every odd-numbered year; and 6:00 pm on Easter Saturday to 6:00 pm on Easter Monday every even numbered year. (

c) MOTHER’S DAY: 9:00 am to 6:00 pm regardless of the regular weekend schedule; (

d) SUMMER SCHOOL HOLIDAY: 3:30 pm on the last school day before summer break for two consecutive weeks to Friday at 6:00

pm, and alternating every two weeks thereafter for the summer break; the guardian who does not have parenting time for two weeks will have a video or IPhone visit on Thursdays at 6:00 pm; (

e) CHRISTMAS: 3:30 pm on the last school day preceding Christmas Break for one week to 6:00 pm on the seventh day in even numbered years; and 6:00 pm on the seventh day of Christmas Break to 6:00 pm on the last day of Christmas Break in odd numbered years. [ 64 ] I consider all outstanding applications to be concluded. ________________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia