T.M.A. v. L.L.W. Date:, 2016 BCPC 122

Citation: T.M.A. v. L.L.W. Date: 20160502 2016 BCPC 0122 File No: 14936 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.M.A. APPLICANT AND: L.L.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Applicant: Ms. Odette Dempsey-Caputo

Counsel for the Respondent: Mr. Donald Komori Place of Hearing: Kamloops , B.C. Date of Hearing: October 19-20, 2015 and March 30-31, 2016 Date of Judgment: May 2, 2016 INTRODUCTION [ 1 ] T.M.A. and L.L.W. met and entered a common law relationship in 2001 or 2002. The couple had one child together, C.W., who was born on [omitted for publication]. The couple separated in October 2006. [ 2 ] T.M.A. works seasonally as a housekeeper at a local hotel but plans to return to school in September 2016 to become a social worker. T.M.A. currently lives on her own in Kamloops.

L.L.W. has worked seasonally for several years with the same employer operating heavy equipment. He currently lives with his common law partner, K.D., at his mother M.A.’s home on the [omitted for publication] Reserve just north of [omitted for publication]. [ 3 ] Since the separation, C.W. has lived primarily with T.M.A. and/or his maternal grandparents, M.A.A. and L.A. C.W.’s maternal grandparents live on the [omitted for publication] Reserve near [omitted for publication]. On two occasions, T.M.A. has asked L.L.W. to care for C.W. for extended periods of time.

Most recently, T.M.A. asked L.W.W. to care for C.W. beginning in late August or early September 2014. [ 4 ] On September 17, 2014 a consent order (the “Consent Order”) was filed by the parties. The Consent Order provides that C.W. is to reside with L.L.W. and that T.M.A. is to have reasonable and generous parenting time with C.W. The Consent Order also provides that L.L.W. and T.M.A. are C.W.’s guardians and sets out how L.L.W. and T.M.A. are to exercise their joint parental responsibilities.

Of note, in the event that L.L.W. and T.M.A. cannot agree on any significant parental decision, L.L.W. has the right to make the decision and T.M.A. has the right to challenge any such decision in court. T.M.A. now applies to vary the Consent Order to have C.W. return to residing primarily with her. [ 5 ] The trial commenced on October 19, 2015 but was adjourned on October 20, 2015. Despite a valiant effort, counsel for T.M.A. was relatively late in a pregnancy and was unable to continue. The trial was reconvened on March 20, 2016, after counsel’s successful delivery and return to work.

During the adjournment, I put in place an interim order providing that C.W. would continue to reside primarily with L.L.W. with specified parenting time to T.M.A., including alternate weekends and more extensive time at Christmas and Spring Break. [ 6 ] Over the years, both L.L.W. and T.M.A. have struggled with addictions and other behaviours. L.L.W. has been mostly clean and sober since 2010 and T.M.A. since February 2015. [ 7 ] T.M.A. submits that her circumstances and ability to meet C.W.’s needs have changed considerably since the Consent Order was filed.

She submits that she can provide the best home for C.W. and that C.W. has indicated that he would prefer to live with her.

If I order that C.W. reside primarily with T.M.A., she seeks to reverse the term regarding parental responsibilities in the Consent Order to allow her, in the event of disagreement, to make parental decisions for C.W. with L.L.W. having the right to challenge any such decisions in court. [ 8 ] In the alternative, if I order that C.W. continue to reside primarily with L.L.W., T.M.A. would like to specify and increase her parenting time to two weekends out of three, some special occasions, all of Spring Break and equally divided summer and Christmas holidays.

T.M.A. would like also L.L.W. to share equally in C.W.’s transportation and submits that parenting time should be reviewed in one year’s time. Finally, T.M.A. suggests that a parenting coordinator be appointed. [ 9 ] L.L.W. submits that there has been no material change in circumstances since the Consent Order and that he can provide the stable home that C.W. needs and deserves. L.L.W. submits that C.W. has expressed his desire to reside with his mother without full knowledge of all the circumstances and without the maturity to decide for himself what is best.

L.L.W. recognizes that at some point in the not too distant future C.W. will be old enough to decide where and with whom he will reside. Until then, L.L.W. submits that the Consent Order should not be varied. ISSUES [ 10 ] The issues are straightforward. They are: 1. Has there been a material change in circumstances since the Consent Order was filed on September 17, 2014? 2. If so, is it in C.W.’s best interests to continue to reside primarily with his father or to move to Kamloops to reside primarily with his mother? 3.

If I order that C.W. reside primarily with T.M.A., is it in C.W.’s best interests to, in the event of disagreement, allow T.M.A. to make parental decisions for C.W. with L.L.W. having the right to challenge any such decisions in court? 4. If there is no change in C.W.’s primary residence, should: a. T.M.A.’s parenting time with C.W. increase? b. L.L.W. share equally in C.W.’s transportation?

c. a parenting coordinator be appointed? 5. If there is no change in C.W.’s primary residence, should the issue of primary residence be reviewed in one year’s time? ANALYSIS Background [ 11 ] I will begin my analysis by setting out a rough chronology of key events. [ 12 ] When T.M.A. and L.L.W. met, T.M.A. was living in Kamloops and L.L.W. in Bonaparte. The couple began living together soon after in Kamloops. After moving to Cache Creek and then to Lillooet, the couple moved back to Kamloops prior to C.W.’s birth.

They moved into a home purchased for them by T.M.A.’s father when C.W. was a baby. [ 13 ] Unfortunately, the couple’s relationship was marred by substance abuse, emotional abuse and domestic violence. Towards the end of the relationship, T.M.A. was trying to maintain her sobriety but struggled with gambling. L.L.W. continued to drink and party. The couple separated in November 2005. L.L.W. moved out to live with his mother in [omitted for publication] while C.W. remained with T.M.A. in Kamloops. [ 14 ] With the help of a Family Justice Counsellor, the couple filed a Separation Agreement on October 26, 2006.

The Separation Agreement provided that T.M.A. and L.L.W. shared joint custody and guardianship of C.W., that C.W. would reside primarily with T.M.A., that L.L.W. would have reasonable and generous access to C.W. and that both parties would not be under the influence of alcohol and/or drugs while caring for C.W. [ 15 ] Both parties struggled after they separated. In the next few years, T.M.A. struggled with her alcoholism, was involved in unhealthy relationships, moved to Port Coquitlam and, at times, denied L.L.W. access to C.W.

During the same time period, L.L.W. struggled with alcohol and drug abuse, lost a good mill job in [omitted for publication], lost his driver’s licence, was in a number of short term relationships and was, at times, only sporadically involved in C.W.’s life. During this time period, L.L.W. did not respond to an application filed by T.M.A. and an Order was made on October 19, 2007 granting sole custody of C.W. to T.M.A. [ 16 ] Between 2005 and 2010, there were times when L.L.W. lived with his mother in [omitted for publication].

After leaving an unhealthy relationship in Port Coquitlam, T.M.A. and C.W. stayed for a short time with L.L.W. and his mother in [omitted for publication] until T.M.A. could find a place in Kamloops. Though both parties struggled with dates, I take it that this must have been in 2009 because C.W. started Kindergarten at the [omitted for publication] on the [omitted for publication] reserve that year. [ 17 ] In 2010, L.L.W. realized he had a serious alcohol and drug problem and that he “did not like where (his) life was travelling”.

L.L.W. wanted to play a bigger role in C.W.’s life and sought help through alcohol and drug counselling. L.L.W. successfully completed substance abuse treatment at Alert Bay and a three or four day inner healing program in Kelowna. In his words, treatment was “a real eye opener” and L.L.W. “has found a way to sustain (himself) without using.” L.L.W. last used street drugs four years ago and his only recent use of alcohol was last year when he had a couple of drinks with his father on his father’s 65 th birthday. [ 18 ] After completing his treatment, L.L.W. began seeing C.W. more regularly.

T.M.A. began taking C.W. to see his father in [omitted for publication] and L.L.W. also travelled to Kamloops with his mother and/or girlfriend to spend time with C.W. At some point in 2011, T.M.A. moved to Merritt to attend school and L.L.W. picked C.W. up to spend every other weekend with him. [ 19 ] In August or September of 2011, T.M.A. was struggling emotionally and financially and moved with C.W. to [omitted for publication] to live with her parents. She was diagnosed with depression and began taking anti-depressant medication. She also got a job at the local Safeway.

By December, T.M.A. was arguing with her father and relapsed prior to New Years. In January 2012, T.M.A. told L.L.W. that she was drinking and not getting along with her parents and asked him to take C.W. T.M.A. says she did this to hurt her parents in spite of all they had done for her. [ 20 ] In March of 2012, T.M.A. enrolled herself in a three month substance abuse treatment program at Hannah House in Maple Ridge. On successfully completing the program, T.M.A. stayed for a short time with L.L.W. and his mother.

L.L.W. believed that T.M.A. was doing well and the two of them reached an agreement that C.W. would return to living with T.M.A. In July 2012, T.M.A. apologized to and reconciled with her parents. T.M.A. moved to [omitted for publication] for the summer and then to Merritt in the fall for T.M.A. to return to school at the Nicola Valley Institute of Technology. L.L.W. says the parties agreed that, if T.M.A. had any further problems, C.W. would return to live with him. [ 21 ] Things started well for T.M.A. in Merritt.

She carried a full course load, attended AA and was an active member of the Parent Advisory Committee at C.W.’s school. L.L.W. was able to spend parenting time with C.W. every other weekend. Unfortunately, T.M.A. over-extended herself and became overwhelmed. Knowing she was heading for a relapse, in November 2012, T.M.A. sent C.W. to stay with her parents in [omitted for publication]. [ 22 ] During her relapse, T.M.A. got into a physical fight with another woman. When C.W. came back to Merritt with T.M.A.’s parents, he saw his mother with a black eye.

C.W. went to school the next day but he was understandably upset. C.W. let his feelings be known by packing his things and telling T.M.A. that he wanted to live with his grandparents in [omitted for publication]. It was hard for T.M.A. to see this but she deferred to C.W. and allowed him to move back to [omitted for publication]. [ 23 ] L.L.W. was upset to learn that C.W. had moved back to [omitted for publication] as he felt that C.W. should live with him. L.L.W. says that the next few months were difficult because T.M.A.’s parents found various excuses to deny him parenting time with C.W.

L.L.W. says that his time with C.W. basically stopped. [ 24 ] In January 2013, T.M.A. took a housekeeping job in Banff to have some time away to figure things out. C.W. did not like her being so far away so she moved back to [omitted for publication] in February. T.M.A. went back to Hannah House but when that did not

work out, she returned to [omitted for publication]. In the spring she attended the Round Lake Treatment Centre near Vernon. Afterwards, T.M.A. moved back to Kamloops. She entered into a three month mental health program and, with the assistance of the ASK Wellness Society, found housing. T.M.A. ended up taking herself out of the mental health program because she was unable to have C.W. overnight while in the program.

After living with a friend in Kamloops for the summer, in September 2013, T.M.A. moved to [omitted for publication] to live with C.W. and her parents and to work as a Cultural Transcriber. [ 25 ] During this same time period, L.L.W. initiated court proceedings and began seeing K.D.

L.L.W. and K.D. moved into their own place together in [omitted for publication] in August 2013 and the court proceedings resulted in a series of interim consent orders. [ 26 ] At the First Appearance on August 28, 2013, and on a without prejudice basis, T.M.A. and L.L.W. agreed not to change C.W.’s residence from T.M.A.’s parents’ home without the written consent of the parties or further court order.

A Family Case Conference (“FCC”) was held on November 27, 2013 and, for reasons that are not clear to me, the FCC order provided only specified “parent contact time” for L.L.W. which did not include any overnight parenting time. A “full” report on the issues of primary residence and parenting time was also ordered.

A further FCC was held on January 7, 2014 which again specified “parent contact time” for L.L.W. which did not include any overnight parenting time. [ 27 ] T.M.A.’s contract as a Cultural Transcriber ended in April 2014 and she moved from her parents’ home to Kamloops to find a place, find work and, she says, eventually get C.W. back. She collected Employment Insurance for a time, found some housekeeping work and stayed with a friend.

By August 2014, T.M.A. decided to enrol in the Career Orientation and Personal Empowerment program at Thompson Rivers University starting in September to assist her in developing an educational and career plan. [ 28 ] In late August or early September 2014, T.M.A. stayed with C.W. at her Auntie G.’s home in [omitted for publication]. C.W. said he wanted to live with T.M.A. so she called L.L.W. in the hopes that he would consent to C.W. living with her.

Though both parties are clear that L.L.W. indicated he wanted C.W. to live with him, T.M.A. and L.L.W. remember the timing and the content of the call differently. [ 29 ] T.M.A. testified that she spoke to L.L.W. over the Labour Day weekend and that L.L.W. said he would take C.W. “temporarily” until she could get stable. T.M.A. also testified that L.L.W. said he would give T.M.A. “one more chance” but if she “screwed up”, he would “take C.W.”. L.L.W. recalls T.M.A. saying that she had a falling out with her parents and wanted him to be C.W.’s primary parent.

L.L.W. recalled that C.W. came to live with him at the end of August and that he had time to register C.W. for school in [omitted for publication] before classes began in September. I note that teachers in British Columbia were on strike at the time so classes did not start until late September 2014. [ 30 ] In any event, T.M.A. did not have a stable residence and ended up staying at the Women’s Centre in 100 Mile House. T.M.A. says she was advised there that she had no choice but to take C.W. to his father.

C.W. has been living with his father since that time. [ 31 ] On September 9, 2014, Family Justice Counsellor, Pam Cripps, completed her report assessing the issues of primary residence and parenting time. Both versions of the telephone call between T.M.A. and L.L.W. are reflected in the report. At pages 4 and 5, Ms. Cripps writes: T.M.A. stated during her interview (on July 3, 2014) it was her wish that C.W. remain in the care of her parents, believing that is what C.W. preferred and felt most comfortable.

T.M.A. felt she needed a “good amount of sobriety” before she was capable of parenting C.W. on her own, and at the time of her interview, she acknowledged she was not there yet. At the end of August 2014 T.M.A. again had a falling out with her parents and took C.W. from their home; she has since asked L.L.W. to be the primary parent “for the next year”. … L.L.W. has accepted T.M.A.’s request that C.W. come to live with him and believes he is capable, able and ready to take on the responsibilities of primary parent. L.L.W. suggests he will be working with his lawyer to formalize this agreement. [ 32 ] In her

Summary and Recommendations, Ms. Cripps writes: L.L.W. and T.M.A. have hurdled many obstacles during their time together and since C.W.’s birth. Their addictions, volatile relationship and issues with emotional/mental health have not allowed C.W. to have a stable solid upbringing other than what has been provided by the maternal grandparents; who have been caring and generous with their time, support and financial contributions.

T.M.A. has continued to struggle with maintaining her sobriety and is willing to admit both in her interview and by her actions with asking L.L.W. to assume the parenting role most recently, that she is not able to commit to being a full time parent to C.W. at this time. L.L.W. has found some extended success in remaining alcohol free and is ready and willing to take on the responsibility of providing a caring, loving and stable life.

Some mindfulness to the attachment C.W. has made with his maternal grandparents should be made and it would seem in C.W.’s best interest to continue to allow regular contact between him and his maternal grandparents and the community in which they live. Given what I have learned about this family I recommend that C.W. reside with L.L.W. who shall have all parental responsibilities for his care and decisions. T.M.A. shall have parenting time with C.W. on alternating weekends from Saturday until Sunday evening, so long as she can prove that she is not under the influence of drugs or alcohol.

Both parents shall abstain from using all illicit substances during their parenting time. [ 33 ] On September 10, 2014, the day after Ms. Cripps issued her report, T.M.A. signed a consent form at L.L.W.’s lawyer’s office indicating her agreement to the filing of the Consent Order. The Consent Order was filed on September 17, 2014 and is the order which T.M.A. now seeks to vary. The Consent Order is neither a “temporary” nor interim order and implements Ms.

Cripps’ September 9, 2014 recommendations that C.W. reside primarily with L.L.W., T.M.A. have parenting time with C.W. on alternating weekends and L.L.W. have the final say on parental decisions. [ 34 ] T.M.A. says a friend told her it was not a good idea to sign the consent form without legal advice. She also says she was unable

to find a lawyer “because everyone was too busy”. Given the timeline, it appears that T.M.A. did not exercise much patience waiting forlegal advice. In any event, T.M.A. says she signed the consent form even though she did not know what it meant. Despite its clearterms, she says she thought she was only consenting to a temporary arrangement until she could get on her feet. [35] Things did not go well for T.M.A. over the next year. She was unable to find stable housing, had money problems and, withouta driver’s licence, was unable to see C.W. as much as she would have liked.

Though she eventually found a housekeeping job with asupportive employer, she felt like a terrible mother and began falling into depression. She was unable to maintain her sobriety. She didnot feel supported by her family. An on-and-off partner was emotionally abusive to her and “put stuff in (her) head that there wassomething wrong with (her)”. T.M.A.’s relationship with her partner ended in February 2015.

According to clinical notes from theRoyal Inland Hospital (“RIH”), starting on February 5, 2015, T.M.A. gambled her paycheque away, got drunk, became suicidal and thenadmitted herself into RIH on February 8, 2015 for several days. [36] After her release, T.M.A. went back to work and took her anti-depressant medication. T.M.A. continued to see C.W. everyother weekend with the assistance of her family.

T.M.A. had scheduled parenting time with C.W. from April 10 to 12, 2015 but thenrefused to return C.W. to L.L.W. alleging that C.W. told her that L.L.W. had spanked him. [37] On April 13, 2015, T.M.A. applied to have C.W. reside primarily with her and L.L.W. applied to enforce the Consent Order.

On April 15, 2015, the parties consented to an order that T.M.A. would immediately return C.W. to L.L.W. on the conditions that neitherparty would allow any yelling or fighting in front of C.W., neither would use corporal punishment on C.W. and neither would be underthe influence of drugs or alcohol while C.W. was in their care. An FCC was scheduled for April 29, 2015. [38] The April 29, 2015 FCC resulted in orders being made to specify parenting time weekends for T.M.A. to the end of June 2015and to facilitate C.W. travelling out of the country with his maternal grandparents in July 2015.

A hearing was held on June 29, 2015which resulted in an order specifying summer parenting time for T.M.A. from July 3 to 15 and August 1 to 15, 2015 and requiring eachparty to advise the other if C.W. was not staying with them. [39] An FCC which had been previously scheduled on July 2, 2015 was converted into a Pre-Trial Conference (“PTC”).

At theconclusion of the PTC, a Views of the Child report was ordered, a September 1, 2015 trial date was cancelled and T.M.A.’s applicationto vary the Consent Order was rescheduled for October 19, 2015. [40] At some point during the spring of 2015, T.M.A. reconciled with her partner but they broke up again in July 2015. T.M.A. didnot have a good support system and began to feel “really shitty” about herself.

She felt that there would not be any chance of gettingC.W. back because of her hospitalization in February. [41] Things came to a head on August 1, 2015 when T.M.A. was to start two weeks of her summer parenting time with C.W. T.M.A. wanted to spend time with C.W. at her home in Kamloops and was hurt when C.W. said he wanted to go to [omitted forpublication] right away to see his best friend. T.M.A. let C.W. go to [omitted for publication] with her parents and convinced herself thatC.W. did not love her or want to be with her. Wanting her “hurts to stop”, T.M.A. attempted suicide by taking “all of (her) pills”.

Aftersleeping for “a really long time”, T.M.A. woke up the next day feeling very sick. She somehow found the energy to go to her neighbour,C.T., to ask for help. C.T. took T.M.A. to RIH where T.M.A. was examined and then released later that day into the care of C.T. [42] The August 2015 suicide attempt was clearly a low point for T.M.A. Since that time, T.M.A. has made big changes in her life. She has established supports through her Christian faith, AA, the Elizabeth Fry Society, the local Friendship Centre and a counsellornamed Idris Marican. She has also completed a Family Enrichment Program with Mr.

Marican, a parenting program through the WhiteBuffalo Aboriginal and Metis Health Society and the Tsow-Tun Le Lum residential trauma treatment program. She has been completelyalcohol and drug free and maintained stable, though seasonal, housekeeping employment. She has re-established a good relationshipwith her parents and has exercised her parenting time regularly. She has stable housing very close to an elementary school in NorthKamloops. [43] Since L.L.W. became C.W.’s primary parent in late August or early September of 2014, things have been relatively stable forC.W.

Until recently, C.W. lived with L.L.W. and K.D. in [omitted for publication]. C.W. has attended school regularly in [omitted forpublication] and has been involved in both hockey and soccer. C.W. is also actively engaged in outdoor activities with his father and hispaternal grandfather, H.F. When L.L.W. is working, K.D. is there to care for C.W. L.L.W., K.D. and C.W. only recently moved in withL.L.W.’s mother in [omitted for publication] as a result of the cost of these proceedings. They plan to move into their own place againwhen they can afford to do so.

Though there have been some disruptions, C.W. has also regularly seen his mother and/or her family,including in [omitted for publication]. [44] The Views of the Child report ordered on July 2, 2015 was authored by Ms. Cripps and was completed on September 17, 2015,about a month before the trial commenced. I will have more to say about Ms. Cripps’ second report below. Has There Been a Material Change in Circumstances? [45]

Section 47 of the Family Law Act, SBC 2011, c. 25 (the “FLA”) provides that a court “may change…an order respectingparenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child,including because of a change in the circumstances of another person.” The case law is clear that the change must be a material change. (See Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, Boychuk v. Singleton, 2008 BCCA 355 at paras. 14 - 15 andGilmour v.

Herrick, 2013 BCSC 1591 at para. 13). [46] In Gordon at paragraph 12, the Supreme Court of Canada described the threshold for establishing a material change incircumstances as follows: Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in afundamental way … The question is whether the previous order might have been different had the circumstances now existing prevailedearlier.

[ 47 ] In this case, C.W.’s need for love, support, safety and stability have not changed. The question is whether there has been a material change in his circumstances because of a change in T.M.A.’s ability to meet his needs. To determine whether there has been this type of material change requires a comparison of T.M.A.’s situation in September 2014 to her situation at the conclusion of the trial. [ 48 ] In September 2014, T.M.A. did not have stable housing or employment, she was in conflict with her parents and was drinking. Ms.

Cripps’ reported on September 9, 2014 that T.M.A. was aware that she could not commit to being a full time parent to C.W. at the time. I agree that T.M.A. was in no position to parent C.W. in September 2014. [ 49 ] In the eleven months following September 2014, things went from bad to worse for T.M.A. She continued to drink. She remained in an unstable and abusive intimate relationship. She had housing and money problems, did not feel supported by her family and did not see C.W. as much as she would have liked.

Most troubling, T.M.A. experienced two significant suicidal episodes, one which resulted in her being hospitalized for several days and the other resulting in a serious suicide attempt. [ 50 ] Since hitting her low point in August 2015, T.M.A.’s circumstances have improved substantially. She has established a number of community supports, re-established her relationship with her parents, been in counselling and completed programs and treatment.

As a result, T.M.A. has been able to maintain her sobriety as well as stable housing and employment. [ 51 ] Against this background, I have little trouble concluding that there has been a material change in C.W.’s circumstances in the sense that T.M.A. is much more stable and, therefore, in a much better position to meet C.W.’s needs than was the case when the Consent Order was made in September 2014. In the words of the Supreme Court of Canada in Gordon , the September 2014 Consent Order “might” have been different had T.M.A. been in her current position. Is a Change of Residence in C.W.’s Best Interests? [ 52 ]

Section 37 of the FLA provides that decisions regarding parenting arrangements, including where a child will reside, must be made with a view only to the child’s best interests and sets out a number of factors that must be considered.

Section 37 provides as follows:

(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. [ 53 ] I will consider each of the factors in s. 37(2) before reaching my conclusion on the circumstances as a whole. Factor (a): the child's health and emotional well-being [ 54 ] By all accounts, C.W. is a healthy and well-adjusted boy. The parties, their witnesses, Ms.

Cripps and C.W.’s report cards all describe C.W. as a kind, polite, respectful and active child who has many friends and enjoys a variety of activities, including hockey, soccer, hunting and fishing. [ 55 ] For the most part, C.W.’s report cards show him to be an interested and average student. Two recent assessments, one done privately by T.M.A. through the Sylvan Learning Centre and one done within C.W.’s school, show that C.W. is, overall, achieving

below average for students in his grade. T.M.A. would like me to conclude that C.W.’s recent slip from being an average to being a below average student has something to do with L.L.W.’s parenting. I disagree. [ 56 ] First of all, until very recently, none of C.W.’s report cards suggest that C.W. was experiencing any unusual learning problems at school so L.L.W. cannot be blamed for not taking steps to address C.W.’s recently discovered difficulties sooner.

Secondly, if C.W. is behind now, it is likely something that has been building over time, including during times that C.W. was in the care of his mother or her parents. Thirdly, over the years, a number of C.W.’s report cards thank his various caregivers, including L.L.W., for appropriately supporting his learning at home. Fourthly, since learning of C.W.’s struggles, L.L.W. has taken appropriate steps, including continuing to encourage C.W. to keep a journal and helping him with his schoolwork. Finally, C.W. was born on [omitted for publication] and has changed schools a great many times.

As one of the youngest students in his grade, C.W. should be expected to be a little behind his peers in terms of his maturity and academic achievement and this has likely been exacerbated by all of the disruptions in C.W.’s life. [ 57 ] In terms of C.W.’s emotional well-being, T.M.A. alleges that L.L.W. has emotionally harmed C.W. by using corporal punishment on one occasion.

T.M.A.’s mother also expressed concern that C.W. has suffered sexual abuse, not necessarily by, but while in the care of L.L.W. [ 58 ] I am unable to find that C.W. has either been subjected to corporal punishment or sexual abuse while in the care of his father. [ 59 ] Because of the conflict between the parties, it is hard for me to know how and why C.W. reported to T.M.A. that L.L.W. hit C.W. with a belt. While it is easier for me to accept that C.W. confirmed to his grandmother, M.A.A., that this occurred, it is hard for me to find C.W.’s report to have been reliable.

C.W. did not make his disclosure spontaneously but only while being questioned by his grandmother. I have no doubt that C.W. is aware of the conflict between his parents and, as a result, he may be prone to telling his parents and grandparents what he thinks they want to hear. For example, both sides of C.W.’s family say that C.W. tells them he wants to stay with them when it is time to spend time with the other side. [ 60 ] Regarding the suggestion that C.W. may have been sexually abused, C.W. has never said that this has occurred.

It seems that M.A.A. has inferred that C.W. may have been sexually abused because he has reported difficulties sleeping at his father’s home. M.A.A. disclosed that she was sexually abused as a child and says that she “also” was not able to speak to anyone about what happened to her. [ 61 ] For his part, L.L.W. and his witnesses deny that C.W. has been subjected to corporal punishment or sexual abuse while in the care of his father.

L.L.W. and K.D. both testified that C.W. is disciplined by speaking to him and, when necessary, taking away his electronics. [ 62 ] There is no objective evidence that C.W. has either been subjected to corporal punishment or sexual abuse while in the care of his father.

Further, following an initial investigation, the Ministry of Children and Family Development stated in a letter dated April 15, 2015 to counsel for L.L.W. that “(t)here is no reason to believe that C.W. is at risk to be in the care of L.L.W.” There was never any report or investigation regarding whether C.W. has suffered any form of sexual abuse. [ 63 ] The best evidence I have about corporal punishment and C.W.’s problems sleeping comes from the September 17, 2015 Views of the Child report prepared by Ms. Cripps. Ms. Cripps’ report supports L.L.W. According to Ms.

Cripps, C.W. confirms that discipline at his father’s may result in his electronics being taken away and says that corporal punishment is not used at either of his parents’ homes. Regarding C.W.’s difficulties sleeping, according to Ms. Cripps, C.W. says this is because of trains passing by at night. [ 64 ] The only emotional issue described by C.W. to Ms. Cripps relates to the sadness he felt when he was taken out of his maternal grandparents’ care and placed with L.L.W. and when he saw his mother injured after she had been in a fight.

C.W. also expressed missing his mother since he has been living with L.L.W. [ 65 ] I can absolutely understand C.W.’s feelings. These feelings were perfectly normal for a then ten year old child whose upbringing had been so disrupted. In fact, given all of the disruptions, C.W. has proven himself to be surprisingly resilient and has fared quite well. [ 66 ] I give credit to the parties and their families for their roles in helping C.W. to be his very best self.

I am certain that C.W. receives unconditional love wherever he goes and that this is why, despite having some sadness and struggles in school, he is described in such glowing terms by all who know him well. [ 67 ] Looking forward, provided both parents are able to maintain their sobriety, I conclude that both are capable of meeting C.W.’s health and emotional needs. Factor (b): the child's views [ 68 ] C.W. was not overly talkative during his interviews with Ms. Cripps. That said, he was able to share his views on with whom he would prefer to live. [ 69 ] When C.W. spoke with Ms.

Cripps in 2014, he was happily living with his maternal grandparents in [omitted for publication] and, initially did not speak about L.L.W. when asked about his family. C.W. pretty clearly wanted to remain living with his grandparents - which is understandable given that they had been the most stable and reliable people in his life up to that point in time. [ 70 ] When C.W. spoke with Ms. Cripps in 2015, he had been living with his father for about a year. C.W. had nothing negative to say about either parent and also shared that he gets along well with K.D.

He was able to describe positive and fun activities and experiences with both parents and their families. He described sadness at leaving the care of his grandparents and concern about hurting his parents’ feelings, especially his father’s, as a result of sharing his views. He described having more chores, responsibilities and discipline at his father’s than at his mother’s which matches with his parents’ own descriptions of the differences in their parenting styles and with the amount and nature of the time he was spending with each parent.

[ 71 ] When asked directly, C.W. stated his preference that he live “full time” with his mother. If that were not to occur, he stated that he would like more time with his mother and specifically described wanting to be with her two weekends out of three. [ 72 ] I take C.W.’s views seriously. C.W. is a sensitive child who, over the years, has spent more time with his mother than with his father. He is probably most comfortable with his mother’s softer style. That said, I must temper the weight I attach to C.W.’s views for a number of reasons.

First of all, all of C.W.’s recent time with his mother has consisted of fun activities and none of the “drudgery” of chores and schoolwork. Secondly, all children need consistency, structure, rules and appropriate consequences for inappropriate behaviours. T.M.A.’s style of giving C.W. whatever he wants and, in C.W.’s words, doing “nothing much” if C.W. gets in trouble may not be best for C.W. Finally, C.W. is likely not aware of the full extent of his mother’s personal struggles and, in any event, lacks the insight and maturity to make the best choice for himself.

Factor (c): the nature and strength of the relationships between the child and significant persons in the child's life [ 73 ] I have nothing to add to my previous descriptions of the nature and strength of C.W.’s relationships with his parents, grandparents and K.D. Suffice to say that C.W. is lucky to be adored by, and to be closely attached to, all of the significant people in his life - on both sides of his family.

It is my view that all of these relationships can and will be maintained whether C.W. resides primarily with his mother or with his father. [ 74 ] In terms of his peers, C.W. appears to have been well liked by his classmates at all of his different schools. C.W. has reported to Ms. Cripps that he has particularly close friendships in both [omitted for publication] and in [omitted for publication]. Though C.W. does not mention any friends in Kamloops, I have no reason to believe that he could not develop close friendships if he resided primarily with his mother in Kamloops.

Factor (d): the history of the child's care [ 75 ] Over the years, C.W.’s care has been loving but unstable. [ 76 ] T.M.A. has been C.W.’s primary caregiver for the greatest amount of time. During times when T.M.A. has been struggling and unable to parent C.W., she has responsibly asked her parents or L.L.W. to step in.

Unfortunately, these struggles have recurred at a fairly high frequency over the years. [ 77 ] As for L.L.W., he has also had his share of struggles and, equally unfortunately, was not well enough to spend significant time with C.W. for a period of several years after the parties separated. [ 78 ] The most stable and reliable caregivers have been T.M.A.’s parents but neither party foresees relying on T.M.A.’s parents to be primarily responsible for C.W. in the future.

Factor (e): the child's need for stability, given the child's age and stage of development [ 79 ] Given all of the disruptions in C.W.’s life and his recently identified academic struggles, in my view, C.W. has a heightened need for stability. [ 80 ] At C.W.’s age and stage of development, he may not have the words, confidence or insight to fully express the impact of all the disruptions in his life. To this point, C.W. has only been able to describe feeling “sad” when he was uprooted and disconnected from his mother and her family.

He has also likely experienced feelings of insecurity and anxiety regarding his frequently changing living situation. [ 81 ] To be at his best in all areas of his life, C.W. needs certainty and predictability. Since September 2014, C.W. has had this with his father. C.W. has had stable housing, stable schooling and stable care giving. C.W.’s current primary caregivers, L.L.W. and K.D., both have stable employment. C.W. has been involved in outdoor activities with his family and extra-curricular activities with his peers. C.W. has seen his mother and/or her family on a predictable

schedule of alternating weekends. [ 82 ] T.M.A. submits that she can now provide the same type of stability for C.W. I commend T.M.A. for all of the positive steps she has taken to address her mental health and substance abuse problems but cannot ignore that she has had two major suicidal episodes in the last 15 months, has only been completely alcohol and drug free for nine months and has just completed a residential trauma treatment program. T.M.A. has been through residential treatment eight or nine times and has had similar periods of sobriety in the past.

Unfortunately, T.M.A. has subsequently relapsed, for example, when she was doing extremely well in Merritt but became overwhelmed. [ 83 ] I recognize that T.M.A. has put together an excellent support team and an excellent plan for meeting all of C.W.’s needs.

I hope the changes T.M.A. has made will be lasting but, frankly, it is too early to tell how T.M.A. would respond to taking over primary responsibility for parenting C.W., meeting her financial obligations, maintaining contact with all of her supports and pursuing a return to school. [ 84 ] Given T.M.A.’s history, there remains, in my view, a real risk of relapse. While I am optimistic for T.M.A., at this stage of her recovery, I simply do not know whether T.M.A. can provide the stable environment for C.W. that he needs and deserves.

Factor (f): the ability of each person who seeks parenting time to exercise his or her responsibilities [ 85 ] I am satisfied that both T.M.A. and L.L.W. are loving parents who want the very best for C.W. I am satisfied that both can and do provide a safe environment for C.W. and will support C.W.’s learning and involvement in cultural, outdoor and extra-curricular activities. I am certain that both are capable of teaching C.W. universal values which will help C.W. to become a good person who functions well in his community. [ 86 ] Though I am generally optimistic about C.W.’s future, C.W. faces some risk.

The greatest risk that C.W. faces is that his

parents and/or their families will continue to be in conflict. Ongoing conflict will only undermine C.W.’s sense of security and it needs to stop. As I said to the parties and their families at the end of the trial, decisions such as this are very difficult and it is critical for the unsuccessful party to overcome their feeling of disappointment and get behind the decision to make the best of the situation - not for each other’s but for C.W.’s sake.

Factor (g): the impact of any family violence on the child's safety, security or well-being [ 87 ] T.M.A. emphasized L.L.W.’s history of assaulting her and at least one other domestic partner. She and her mother have suggested that L.L.W. has used physical force to discipline C.W. M.A.A. also suggested that C.W. has been sexually abused while in L.L.W.’s care. [ 88 ] L.L.W. does have a history of perpetrating domestic violence which dates back to his drinking and drugging days.

There is no reliable evidence that L.L.W. has perpetrated domestic violence since he quit abusing substances and there is no suggestion that any of his prior assaultive behaviour occurred in the presence of C.W. or any other children. I have already indicated there is also no reliable evidence that L.L.W. has used corporal punishment on C.W. nor that C.W. has suffered any form of sexual abuse at any time, including while under L.L.W.’s care. [ 89 ] To be fair, the only concern regarding violence that C.W. expressed to Ms. Cripps relates to the time he saw his mother after she had been in a fight.

This fight did not occur in front of C.W. but the aftermath upset him. If T.M.A. is able to maintain her sobriety, there is unlikely to be a repeat of this concern. [ 90 ] I am satisfied that both L.L.W. and T.M.A. understand the importance of raising C.W. in an environment which is free of family violence and which does not rely on corporal punishment. I am also satisfied that both have made significant changes in their lives to ensure that family violence does not affect C.W.’s future safety, security and well-being.

Factor (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 [ 91 ] I have no present concerns that L.L.W.’s history of perpetrating domestic violence impairs his ability to care for C.W. or meet C.W.’s needs. Factor (i): the appropriateness of an arrangement that would require the child's guardians to cooperate [ 92 ] Despite their differences, for the most

part L.L.W. and T.M.A. have cooperated to ensure that each has a meaningful and positive relationship with C.W. There are, however, a few areas of concern. [ 93 ] My first concern is that both parties have made unilateral parenting decisions without seeking the consent of, or even informing, the other. For example, L.L.W. registered C.W. for hockey and soccer without input from T.M.A. and T.M.A. has taken C.W. to church and had him assessed by the Sylvan Learning Centre without input from L.L.W.

None of these steps has been harmful to C.W. but each should have been discussed by C.W.’s guardians prior to being taken. [ 94 ] My second concern relates to the conflict that sometimes arises when C.W. spends his time with T.M.A. and her family. [ 95 ] By all accounts, C.W. enjoys playing hockey and, in my view, he has much to gain from regular physical activity in a team environment. Both sides of C.W.’s family purport to be supportive of C.W.’s hockey and to understand that hockey is not paramount to family or health.

Unfortunately, the W. side of C.W.’s family feels that the A. side does not place a high enough priority on getting C.W. to hockey while the A. side feels that the W. side places a higher priority on C.W. playing hockey than, well, just about anything else. The only explanation for the conflict is a lack of trust and communication. [ 96 ] The solution is obvious and simple. C.W.’s guardians should have early and open communications regarding C.W.’s activities, C.W.’s health and their own plans.

Both sides of C.W.’s family should strive to ensure C.W. meets his commitments to his team while also understanding that sometimes C.W. may need to miss a practice, game or tournament for family reasons or illness. [ 97 ] My final concern has to do with T.M.A. having recently withheld C.W. from L.L.W. without ever speaking with L.L.W. to get his side of the story or giving L.L.W. an opportunity to address T.M.A.’s concerns. T.M.A. withheld C.W. out of concern that L.L.W. had spanked C.W. which forced L.L.W. to go to court to obtain an order for the return of C.W.

This is an example of how distrust and lack of communication has led to conflict and disruption. [ 98 ] The reality is that T.M.A. and L.L.W. are always going to have a relationship with one another as C.W.’s parents and they must learn to get along and communicate better with one another. With no ongoing concerns regarding family violence, it is completely appropriate to expect T.M.A. and L.L.W. to cooperate with one another as C.W.’s guardians.

Factor (j): any civil or criminal proceeding relevant to the child's safety, security or well-being [ 99 ] T.M.A. has raised two other safety concerns regarding L.L.W. which arise out of a prior conviction for driving while prohibited and charges he is facing for unsafe storage of firearms. [ 100 ] I am concerned that L.L.W. has driven while prohibited while out in the bush. There is, however, no evidence that he has ever done so with C.W. and I accept that L.L.W. now understands that he must not drive under any circumstances, whether with C.W. or not, until he regains his driver’s licence.

If L.L.W. fails to restrain himself from driving while prohibited, he will be caught and could very well be sent to jail. [ 101 ] I am also concerned regarding any unsafe storage of firearms but understand that whatever issue arose has been dealt with to ensure C.W. does not have access to unsafely stored firearms.

[ 102 ] I conclude that there are no past or present civil or criminal proceedings that detract from C.W.’s current or future safety, security or well-being. Conclusion on C.W.’s Residence [ 103 ] After carefully considering all of the factors listed in s. 37(2) of the FLA and the circumstances as a whole, I have concluded that C.W.’s interests are best served by remaining primarily with L.L.W.

L.L.W. has had difficulties with substance abuse and domestic violence and, as a result, was not very involved in C.W.’s life for several years but L.L.W. is now in the best position to provide the loving, safe, supportive and stable home which C.W. needs and deserves. Though there have been some conflicts with T.M.A. and her family, L.L.W. has not withheld C.W. from the A. and I am confident that C.W. will be able to maintain his very close connection with his mother and her family. [ 104 ] The strides T.M.A. has made to deal with her mental health and substance abuse issues have been impressive.

The fact that she requires such a high level of ongoing support and services demonstrates, however, that she is not out of the woods. Given how early T.M.A. is in her recovery and how much would be on her plate if C.W. were returned to her, the risk of relapse and further disruption is simply too high for me to change C.W.’s current living situation. [ 105 ] I recognize that my decision is contrary to C.W.’s wish to live with his mother but C.W. has simply not reached the age or stage of development to decide for himself what is best.

I encourage T.M.A., L.L.W. and their families to support C.W. by reassuring him that both sides of his family love him, that no one is upset with him for sharing his views and that his current living situation is the most stable and, therefore, the best for him. Guardianship and the Exercise of Parental Responsibilities [ 106 ] Given that there will be no change in C.W.’s primary residence, I have concluded that the current order regarding guardianship and parental decision making remains in C.W.’s best interests.

T.M.A.’s Parenting Time [ 107 ] T.M.A. has submitted that in the event C.W. remains primarily with L.L.W., she should have increased parenting time consisting of two weekends out of three, some special occasions, all of Spring Break and equally divided summer and Christmas holidays. [ 108 ] At the heart of this case is C.W.’s stability. At C.W.’s age and stage of development, having C.W. spend two out of three weekends with T.M.A. would be overly disruptive to C.W.’s routines and extra-curricular activities and not in C.W.’s best interests.

However, spending increased time with T.M.A. along some of the other lines T.M.A. has suggested is workable, sensible and in C.W.’s best interests. That increased time will allow C.W. to benefit from his mother’s and her family’s love, support and guidance and to remain closely connected to other friends and activities he enjoys without being disruptive. I will outline terms that I consider to be in C.W.’s best interests in the order I make below. [ 109 ] Regarding transportation, T.M.A. submits that L.L.W. should share parenting time transportation responsibilities equally.

Neither T.M.A. nor L.L.W. has a driver’s licence and, in my view, it is unfair that T.M.A.’s family is currently bearing the full responsibility of transporting C.W. to spend time with T.M.A. and her family. At times in the past, L.L.W.’s family has at least shared in the responsibility and it is time to formally order that transportation responsibilities be shared equally. [ 110 ] T.M.A. further submits that I should appoint a parenting coordinator to assist the parties. In my respectful view, this suggestion is not feasible. The parties simply do not have the resources to pay for a parenting coordinator.

Review [ 111 ] In appropriate cases, reviews can be useful to revisit issues that arise in family disputes, for example to see how a new living arrangement is working out. This is not one of those cases. C.W. has been in a stable living situation for the past twenty months. No “experiment” is being proposed or ordered.

Revisiting C.W.’s primary residence in one year will only encourage the parties to undermine and/or look for fault in the other rather than get behind this decision and focus on normalizing their relationship and eliminating conflict from C.W.’s life. [ 112 ] In my view, any future change in C.W.’s primary residence should only occur if: 1. there is a material change in C.W.’s needs or circumstances; or 2.

C.W. reaches the age when he is mature enough to decide to live with his mother and his mother has demonstrated that the improvements she has made to her mental health and sobriety will be lasting. [ 113 ] The only review that is warranted in my view relates to any fine tuning that may be required regarding the parenting time and conduct orders I will be making. If either party wishes to revisit those issues, they may request that an FCC be scheduled and I seize myself of any such FCC scheduled in the next 18 months. CONCLUSION AND ORDER [ 114 ] Based on all of the above, I make the following final orders: 1.

T.M.A.’s application to vary primary residence and the exercise of parental responsibilities is dismissed. 2. As set out in paragraph 1 of the Consent Order made by Judge Frame on September 17, 2014, C.W. shall continue to reside primarily with L.L.W.

3. The parties shall continue to exercise their parental responsibilities as set out in paragraph 4 of the Consent Order made by Judge Frame on September 17, 2014. 4. This order will replace all previous orders regarding T.M.A.’s parenting time and the conduct of the parties. 5. T.M.A. shall have the following parenting time with C.W.: a.

T.M.A. shall have parenting time with C.W. on alternate weekends from Fridays after school until Sundays at 6:00 p.m.; b. if the day preceding or following one of T.M.A.’s weekends with C.W. is a professional development day or a statutory holiday, T.M.A.’s parenting time with C.W. shall be extended to include that extra day; c. in odd years, T.M.A. shall have parenting time with C.W. during the first half of the school Christmas holiday and, in even years, T.M.A. shall have parenting time with C.W. during the second half of the school Christmas holiday; d.

T.M.A. shall have five weeks of summer parenting time on dates to be agreed by the parties; e. T.M.A. shall have parenting time with C.W. for the entire school Spring Break; f. whenever Mother’s Day does not fall on one of T.M.A.’s weekends, T.M.A. shall have parenting time with C.W. from 9:00 a.m. to 6:00 p.m. on Mother’s Day; g. when C.W. is in L.L.W.’s care, T.M.A. shall have telephone or other electronic communication with C.W. on Mondays and Wednesdays at 7:00 p.m.; and h. any other time as agreed by the parties in writing. 6.

The parties shall equally share the responsibility for transporting C.W. for T.M.A.’s parenting time with C.W. 7. Whenever Father’s Day falls on one of T.M.A.’s weekends, L.L.W. shall have parenting time with C.W. commencing at 9:00 a.m. for the rest of the day. 8. Whenever C.W. is in T.M.A.’s care during the week, L.L.W. shall have telephone or other electronic communication with C.W. on Mondays and Wednesdays at 7:00 p.m. 9. Neither party shall be under the influence of alcohol or drugs, except in accordance with a medical prescription, during parenting time with C.W. 10. T.M.A.’s application to

schedule a review of primary residence is dismissed but if either party wishes to review other parenting time or conduct issues, they may request that a Family Case Conference be scheduled and I seize myself of any such Family Case Conference scheduled in the next 18 months. [ 115 ] It is my hope and expectation that this order will reduce or eliminate the conflict that has resulted in communication restrictions between the parties. Both have made significant improvements in their lives and testified to their desire to communicate more respectfully with the other.

I have, therefore, not included any terms governing the way the parties communicate with each other. It is best for C.W. to have parents who communicate openly and respectfully with each other. [ 116 ] Given my conclusion that C.W. has not been subjected to corporal punishment in either home, I find it unnecessary to include a term prohibiting the use of corporal punishment.

I trust that both parents will remain true to their word not to resort to corporal punishment in the future. [ 117 ] I want to conclude by commending the parties for taking the difficult steps necessary to make the significant changes which were required for them to be better parents for C.W. I thank both parties and their families for their respectful participation in the trial. I also thank counsel for their able assistance. Finally, I wish C.W. the very best for the future. ______________________________ L.S. Marchand Provincial Court Judge