C.S. v. W.M.M. Date:, 2017 BCPC 19

Citation: C.S. v. W.M.M. Date: 20170124 2017 BCPC 19 File No: 14970 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.S. APPLICANT AND: W.M.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: Ms. C.S.

Place of Hearing: Kamloops , B.C. Date of Hearing: January 11, 2017 Date of Judgment: January 24, 2017 [ 1 ] This is an application by C.S. to remove W.M.M. as a guardian of their children. The children are R.E.M. born [omitted] and M.S.M. born [omitted]. [ 2 ] C.S. testified that the parties lived together in a common law relationship for approximately eight years. She testified there were a number of instances of drug use and verbal abuse. She conceded that both parties were using drugs.

However, the primary reason she left W.M.M. in July 2013 arose from a sexually inappropriate comment he made regarding the sexual experience of his eldest daughter who was then seven years old. W.M.M. told C.S. that he wanted to be part of his daughter’s first sexual experience. He evidently also told others of this alarming interest. The Ministry of Child and Family Development became involved but determined the risk was not high if appropriate living arrangements were made. [ 3 ] When the parties parted, and after the Ministry investigation was completed, their parenting time was to be shared equally.

They proceeded in this manner until December 2014 at which time W.M.M.’s mother evicted him from her home where he had been living. The children had been on parenting time with their mother at the time. The girls were evicted at the same time W.M.M. was evicted. As a result, the children continued to live with their mother. [ 4 ] Subsequently, a court order was put in place allowing parenting time to W.M.M. every Saturday. This continued until he obtained work up north and was only home one week per month. In either March or April 2015, W.M.M. stopped working but kept his parenting time to one Saturday per month.

This continued until August 2015. [ 5 ] W.M.M. was living in his camper by this time. In August 2015, the girls expressed that they were unwilling to sleep over with him anymore. Evidently on the urgings of a judge, the parties entered into an order that would permit the girls to “try this arrangement”. The order was made August 10, 2015. The girls went to stay with their father on the Saturday. They asked their mother if it was possible that they not sleep over. C.S. raised this with W.M.M. suggesting variations on his parenting time. He made no commitment to change the arrangements.

W.M.M. picked the girls up and took them to his camper. Approximately 45 minutes later, her daughters called to say that it would be best if they stayed over after all. [ 6 ] When the girls returned home the next day, they told their mother that their father had locked them in the car and said that if they did not stay over he would call the police and have their mother arrested. He would also have the Ministry involved. Upon hearing this, C.S. filed a motion to suspend W.M.M.’s parenting time.

The girls asked her if they could be relieved from seeing him because they had been so upset. [ 7 ] There was no further contact until W.M.M. texted his youngest daughter, M.S.M. on her birthday in November 2015, and then spoke to her on the phone. She became upset and she did not wish to speak to him after that. The next they heard from their father was on the birthday of the eldest daughter, R.E.M. in January 2016, but she refused to speak to him after he texted her. They heard nothing further from W.M.M. until November 2016. Again, this was M.S.M.’s birthday.

She said she did not want to speak to him. [ 8 ] C.S. asked W.M.M. at that time for an address to serve him with some documentation and asked him to sign off on adoption. W.M.M. responded that this was “not going to happen”. When C.S. asked him why he said “are you really that stupid”. [ 9 ] Since then, C.S. has been reluctant to communicate with W.M.M. given his abrasiveness. He does pay child support but this is through the Family Maintenance Enforcement Program. C.S. heard that he is cohabitating with someone and that he might be in town because others have seen him on the bus.

There is nothing concrete for her to proceed with. [ 10 ] C.S. spoke with W.M.M.’s mother on November 30, 2016. That relationship is also fragile given that there was a lawsuit over monies that C.S. and W.M.M. borrowed from his mother and their resultant bankruptcies. Despite an order for substituted service, his mother refused to take the documents regarding this application saying that her son had done enough harm to her. [ 11 ] C.S. had spoken to W.M.M.’s father and step-mother when they took an opportunity for the grandfather to give gifts to the girls.

He had just had heart valve surgery and had not seen his son since October 2016. W.M.M. does not answer their calls. The last communication C.S. had with W.M.M. was when she sent images of the court application documents on December 1, 2016. [ 12 ] Despite service on him in the manner required by the substituted service order, W.M.M. has not responded to this application in any way other than to verbally refuse to have his daughters adopted by C.S.’s current partner. [ 13 ] C.S. already has all of the parenting responsibilities.

She wishes to be the sole guardian so that she can proceed with her husband adopting her daughters. [ 14 ] Under s. 51(1)(b), the court may terminate a person’s guardianship of a child. The courts have established that guardianship should only be terminated in extreme situations and all other guardianship challenges should be met with assignment of parental responsibilities. [ 15 ] The question is what constitutes extreme circumstances. In M.A.G. v. P.L.M. , [2014] B.C.J.

No. 134 , while the Supreme Court was dealing with the issue of sole custody, which is still the terminology under the Divorce Act , the court concluded that sole custody was appropriate: The claimant’s inconsistent involvement with the children, his harmful communication with the children and S.G. in particular, and to a

subsequent decision to not see his children for approximately 10 months demonstrate a fundamental lack of understanding and concernfor the children and their needs. [16] However, custody is clearly an entirely separate issue from guardianship. In that case, the mother was also seeking soleguardianship by removing the father as a guardian pursuant to s. 51. Where the Divorce Act and Family Law Act overlap, the FamilyLaw Act is only used to augment or supplement the Divorce Act orders. The Divorce Act is not in issue in these proceedings. The courtconfirmed the provincial court decision in D. v.

D., 2013 BCPC 135 , 2013 B.C.P.C. 135 that by allocating or reallocatingparental responsibilities to a more capable parent as opposed to terminating guardianship “a child may safely retain the benefit of havinga parent remain a significant part of his or her life”. [17] C.S. maintains that the girls wish to be adopted by their step-father and to have his name. However, the girls are very young yetand had a meaningful relationship with their father until his inappropriate parenting issues arose in 2013. They continued to maintain aproper relationship with him until December 2014.

Though their contact with him was less frequent and less meaningful throughout2015, the relationship continued until August of that year. [18] Since then, W.M.M. has compounded his inappropriate observations about the sexual relationships of his daughters with anongoing fundamental lack of understanding of a proper parenting relationship. It is impossible to know why he has abandoned allparental responsibilities because he has not responded to this application. [19] In D. v. D. supra, my brother Judge Merrick observed that it would rarely be in a child’s best interest to terminate guardianship.

By reallocating parental responsibilities as was done in the case before me, the children are able to safely retain the benefit of ameaningful relationship with their father. The test Judge Merrick set out at paragraph 24 was: … termination can only occur in the most extreme situations. The approach to be taken is, first, to ask whether, through an allocation ofparenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian.

If it is, guardianshipshould not be terminated. [20] If I consider C.S.’s motivation in bringing this application at this stage, it is not the children’s best interests to terminate theguardianship. All parental responsibilities have been allocated to her, child support continues to be paid by W.M.M. and the children arehaving only such parenting time with their father as they are willing to have. The only purpose in proceeding with terminating theguardianship from C.S.’s perspective, is to permit her current husband to adopt W.M.M.’s children without his consent.

That would notbe an extreme circumstance as considered under the Family Law Act. [21] In applying the test set out in D. v. D. supra, I find that despite the reallocation of parental responsibilities, it is not in the bestinterests of the children for W.M.M. to remain a guardian. He does not participate in any way with the upbringing of the girls, causesthem to stress when he does have contact with them, and has only had contact on their birthdays since the end of 2015.

Apart from hispossessory assertion in refusing to consent to their adoption, W.M.M. has not participated in the guardianship of his children at all. Thisis not in their best interest particularly given the history of drug use, stated sexual impropriety, and complete relinquishment of hisparental responsibilities. [22] I am satisfied that these are such extreme circumstances that an order under s. 51 of the Family Law Act is appropriate. Iterminate W.M.M.’s guardianship. The Honourable Judge S.D. Frame Provincial Court of British Columbia