J.Z. v. B.N., 2021 BCPC 155

Citation: J.Z. v. B.N. 2021 BCPC 155 Date: 20210208 File No: [Omitted for publication] Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.Z. APPLICANT AND: B.N. and T.M. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.F.M. JACKSON Counsel for the Applicant: B. Haberstock Appearing on their own behalf: B.N Not Appearing: T.M. Place of Hearing: [Omitted for publication] , B.C. Date of Hearing: February 1, 2021 Date of Judgment: February 8, 2021

HISTORY [ 1 ] The respondent, B.N., is the father of the child, [omitted for publication], born [omitted for publication] (the “Child”). [ 2 ] The respondent, T.M., is the mother of the Child. T.M. did not participate in this application. [ 3 ] The applicant, J.Z., is the maternal grandmother of the Child. [ 4 ] For the past three years B.N. has been the primary care-giver of the Child. He is a guardian for the Child.

The court was not advised if T.M. is also a guardian. [ 5 ] In 2019, B.N. moved with the Child to [Town B - omitted for publication], British Columbia. [ 6 ] On March 2, 2020, J.Z. brought this application for contact time with the Child. [ 7 ] On March 2, 2020, J.Z.’s mother, B.C., brought a similar application for contact time with the Child. B.C. is the maternal great- grandmother of the Child. [ 8 ] On June 4, 2020, B.N. consented to supervised contact between the Child and B.C. the first Sunday of every month between 10:00 a.m. and 5:00 p.m. in [Town B - omitted for publication].

The supervisor was to be agreed upon by the parties or the contact be supervised by B.N. [ 9 ] Since June 4, 2020, B.N. personally supervised visits with B.C. and her husband (D.C.) in [Town B - omitted for publication] until the Covid19 pandemic made such visits unsafe. Since then the monthly visits have been by video. EVIDENCE B.C. [ 10 ] B.C. was called as a witness by J.Z. B.C. testified that T.M. is her granddaughter.

She added that T.M. is living with her and is scheduled to enter a drug detox center on the 18 th of February. [ 11 ] B.C. testified that T.M. usually sees the Child with her on B.C.’s scheduled Sunday visits.

She added that, whether the visits are real or virtual, B.N. is always present. [ 12 ] B.C. testified that originally, after B.N. and T.M. separated, B.N. would allow the Child to visit at the B.C. and D.C. residence until shortly before the relocation of the Child to [Town B - omitted for publication]. [ 13 ] B.C. added that B.N. was upset that J.Z. was present at the B.C. and D.C. residence during one of the Child’s visits. B.N. had forbidden J.Z. from being present and a dispute arose as B.C. felt he could not tell her to ban her own daughter from their home.

At the time, those visits were not supervised. [ 14 ] B.C. stated that if contact time was allowed the plan was for J.Z. to visit with the Child at the same times as B.C. and that B.N. would always be there to supervise. [ 15 ] B.C. testified that B.N. has always disliked J.Z. and that J.Z. tries to be nice to B.N. so she can see the Child. [ 16 ] B.C. stated that J.Z. has had a lot of problems: she was an addict and her former partner was a drug dealer. B.C. added that J.Z.’s two children (including T.M.) had been in foster care.

B.C. and D.C. subsequently retrieved the children (including T.M.) and raised them. [ 17 ] B.C. testified that J.Z. had undergone a laser procedure in her ears to end her drug addiction approximately three years ago. She added that J.Z. is now “off drugs”. She continued that she sees J.Z. almost every day. J.Z. Direct [ 18 ] J.Z. testified that she had a good relationship with the Child until the Child was age two. She added that she has had no relationship with the Child for the past two and one half years.

Her contact with the Child has been during family gatherings at the B.C. and D.C. residence. [ 19 ] J.Z. testified that B.N. doesn’t want her in the Child’s life. She stated that he is negative towards her although she tries to be nice to him. She has no idea why he is negative towards her but they do “butt heads on things”. She said, “They each have views and want to be right.” [ 20 ] She added that, if she was allowed contact, she saw no reason for yelling and screaming with B.N.

She added, “The child doesn’t need to see adults arguing.” [ 21 ] J.Z. testified that she had laser treatment over three weekend sessions. She added that it is still a struggle every day and since the treatment she has slipped one or two days. The laser treatment was to remove the urge and she does not party anymore. She stated that she went to AA and NA meetings, although since Covid19 there are no meeting and the members just talk to one another. [ 22 ] In August 2019 J.Z. was hit by a truck while riding her bike and can no longer work as a server.

She added that she divorced her husband last year and takes odd jobs as a cleaner.

Cross-examination [23] In cross-examination, J.Z. stated that B.N. had been negative towards her ever since he and T.M. first got together. [24] J.Z. denied taking money from T.M., using T.M.’s bank card to deposit fake cheques, or bragging about stealing money from herex-husband. [25] She denied crashing her bike into a truck last August because she was high on drugs. [26] J.Z. agreed that she had shown the Child the large scar on her leg from the collision. She explained that the Child had asked tosee the healing wound.

She denied telling the Child to not ride her bike. [27] She denied being ordered to provide drug test results for this hearing. She added that she had an appointment for drug testingtoday (the hearing date) but couldn’t do it because of this hearing. She added that Covid19 makes it difficult to do drug tests but that she“can do one anytime”. D.C. [28] D.C. testified. He stated that he is the husband of B.C. and step-father to J.Z.

He confirmed that he and B.C. had gone to Alberta,located T.M. and her brother in foster care, and had then returned both them and J.Z. to [Town A - omitted for publication] in the Springof 2006. [29] He supported keeping the Child connected with all her maternal family members, including J.Z. He added that he uses themental health techniques he learned as an army chaplain to deal with the trauma the family faces. B.N. [30] B.N. testified that he believes that contact between the Child and J.Z. would be detrimental to the Child.

He has based his opinionin part on J.Z.’s abandonment of her own children, her stealing of T.M.’s bank card, and J.Z.’s stealing to support her drug addiction. [31] B.N. testified that he had seen J.Z. shoplifting while high on drugs.

He accused J.Z. of supplying her daughter, T.M., with drugswhich put her back on the streets within three weeks of an earlier detoxification. [32] B.N. testified that it took six months to get the Child back to riding her bike after she saw the wound on J.Z.’s leg and was toldnot to ride her bike by J.Z. [33] B.N. testified that he had told B.C. that J.Z. was not to be present when the Child visited the B.C. and D.C. residence and wastold by B.C. that a grandmother (J.Z.) has rights when he confronted her about the visit.

THE LAW [34] In British Columbia the test for contact by extended family members with a child was laid out by Mr. Justice Bremner (as hethen was) in Chapman v. Chapman, (BC SC), [1993] BCJ 316 (QL), (Chapman). He held:

a) there is no presumption that access with a grandparent is in the best interests of the child;

b) the grandparent bears the onus of establishing that it is;

c) the court should be reluctant to interfere with a custodial parent’s decision and should only do so where it is in the best interestsof the child; and,

d) while the courts must be vigilant to prevent parents from alleging fictitious or imagined conflicts as a reason to deny access, incases of real conflict and hostility between the parent and grandparent, the child’s best interests will rarely be served by granting access. [35] That test was affected by the proclamation of the Family Law Act in 2013. In Fawcett v. Read, 2016 BCSC 310, Madam JusticeRussel considered the effects of the emphasis of the ‘Best Interests on the Child’ under the Family Law Act.

At paragraph 30 of herdecision she held: Deference to the custodial parent’s views is a relevant consideration, subject to any other evidence with respect to the best interests of thechild. The custodial parent’s views cannot trump the best interests test but may form one component of it. ANALYSIS [36] The factors to consider concerning the Best Interests of the Child are laid out in

section 37 of the Family Law Act. Section 37(2)(a): “The child’s health and emotional well-being.” [37] B.C. and J.Z. agree that B.N. is good parent and is doing a good job of raising the Child. B.N. testified that that the Child’snightmares have been lessening in the last six months. [38] J.Z. testified that she had a good relationship with the Child before the Child moved to [Town B - omitted for publication]. Thatrelationship was then limited to visits with the rest of the maternal family on Sundays. [39] The court concludes that reintroducing J.Z. into the Child’s life after little or no contact since the Child was approximately twoyears old will have an emotional impact on the Child.

Section 37(2)(b): “The child’s views, unless it would be inappropriate to consider them.” [ 40 ] The court does not have the child’s views but in any event would consider it inappropriate to consider them from a child of approximately four and one half years of age.

Section 37(2)(c): “The nature and strength of the relationships between the child and significant persons in the child’s life.” [ 41 ] The Child has a strong relationship with her father. [ 42 ] She has a good but infrequent relationship with B.C. [ 43 ] She has had almost no contact with J.Z. for at least three years (since she was approximately 18 months old). Section 37(2)(d): “The history of the child’s care.” [ 44 ] As stated above, J.Z. has had little involvement in the Child’s care.

Section 37(2)(e): “The child’s need for stability, given the child’s age and state of development. [ 45 ] The Child is young, has experienced the separation of her parents, and a move to a new city. She requires a great deal of stability to recover from this trauma. The introduction of a new party into her life threatens that stability. That is particularly true given the real possibility of arguments occurring between J.Z. and B.N. J.Z. agreed that the child should not see adults arguing.

Section 37(2)(f): “The ability of each person who is a guardian …or seeks contact with the child to exercise his or her responsibilities.” [ 46 ] J.Z. has a difficult history of drug dependence, the loss of her own children to foster care, and marital breakdown. Section 37(2)(g): “The impact of any family violence on the child.” [ 47 ] There is no history of family violence. Section 37(2)(h): “Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to …meet the child’s needs.” [ 48 ] That is not applicable here.

Section 37(2)(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.” [ 49 ] The hostility between B.N. and J.Z. was very obvious in the courtroom. That was particularly true in the cross-examination of J.Z. by B.N. He alleged a number of drug related problems including thefts and causing her bike accident.

She denied them all. [ 50 ] They strongly disagreed on whether J.Z. had been ordered by the court to provide drug test result. The court records show that an order for disclosure was made by consent on June 3, 2020. It reads as follows. “The parties will exchange witness lists, with will-says, and if the parties are going to have documents or reports i.e.: blood tests, urine tests, to rely on at the trial those should be exchanged seven days prior to the pre-trial conference.” [ 51 ] The pre-trial conference was held on July 3, 2020.

Drug tests were not ordered, but were discussed as potentially useful evidence. [ 52 ] As Mr. Justice Bremner said in Chapman , The court “must be vigilant to prevent parents from alleging fictitious or imagined conflict as a reason to deny contact time, in cases of real conflict and hostility between the parent and grandparent the child’s best interest will rarely be served by granting access.” [ 53 ] It is clear that J.Z. was addicted to drugs and still deals with the addiction. Her mother testified that J.Z. is “off drugs”.

It is also clear that B.N. sincerely does not believe that. [ 54 ] In the seven months since disclosure was ordered J.Z. could have voluntarily done drug tests to support her position that she is no longer using. That might have reduced B.N.’s suspicions and hostility. As it now stands, whether J.Z. is still using drugs is an unanswered question. However, B.N.’s hostility is very real. [ 55 ] The onus is upon J.Z. to establish that contact between her and the Child is in the best interests of the Child. This court concludes that she has not established that on the balance of probabilities.

Accordingly, her application for contact with the Child is dismissed. _______________________________________ W.F.M. Jackson, P.C.J. Provincial Court of British Columbia