J.L.J. v. D.P.J. Date:, 2017 BCPC 344

Citation: J.L.J. v. D.P.J. Date: 20171124 2017 BCPC 344 File No: 15077 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. L. J. APPLICANT AND: D. P. J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: J. Chadola

Counsel for the Respondent: M. Jukic Place of Hearing: Abbotsford , B.C. Date of Hearing: November 8, 2017 Date of Judgment: November 24, 2017 Background [ 1 ] The Applicant J. L. J. and the Respondent D. P. J. are the parents of a Child named C. G. J., who was born on (d.o.b.) 2007. These parties were married in 2007, when the Applicant was 20 and the Respondent was 24. They are both good and honest people and their evidence about what happened during the course of their relationship differs little, if at all. For the first part of their marriage, they worked hard at building a life for their young family.

Both had worked prior to the birth of their child, but when she was born, the Applicant remained home to care for the child, while the Respondent worked hard to provide for his young family. [ 2 ] Fate intervened to cause problems in the relationship as the Applicant encountered a number of serious and painful health problems. These required the Applicant to use opiate prescription drugs to manage the pain that accompanied these problems, and regrettably the Applicant developed an opiate addiction that adversely affected her ability to parent her child.

Substance abuse is powerful force that lays waste to many relationships and it ended this one. The parties separated on July 4 th , 2012. It was clear to everyone including the Applicant that the Applicant was not able to parent a child at the time, and the child remained in the Respondent’s care. [ 3 ] The Applicant was able to recognize that she had a serious problem and she was convinced to try to get help for it. On August 3, 2012, the parties signed a simple agreement that recognized the situation for what it then was. The agreement provided that the Respondent would have “interim full custody” of the child.

It was expected that the Applicant would enter a residential treatment facility in Lloydminster, Alberta for a period of at least 90 days. The parties agreed that they would share guardianship of the child and that the Applicant would have supervised visits with the child when she had completed her treatment and that this would be reviewed a month after completion of her treatment program. This couple was fortunate to have an understanding relative who agreed to supervise the visits. The Applicant was also permitted to telephone the child at least twice per week.

Lastly, the parties agreed not to go to the other’s home or workplace unless invited to do so. [ 4 ] Unfortunately the Applicant did not successfully complete her treatment in Lloydminster. She left the treatment center with another resident and found herself in another province without resources. With the assistance of compassionate strangers, she was able to find employment in Wainwright, Alberta. Regrettably she was unable to maintain her abstinence and a year after her separation she began to use heroin and other street drugs.

She attended another treatment center and eventually completed treatment, but relapsed within a week of leaving the treatment center. Her life deteriorated and her addiction took her to places she regrets. This included a romantic relationship with a person who had been convicted of sexual offences against children. That relationship has since ended. [ 5 ] The Applicant’s supervised visits continued and she did not give up on her hopes for recovery.

While no addict is ever “cured” of their addiction, the Applicant has been able to maintain continuous abstinence from the use of controlled substances since October of 2015. She has been able to do so by attending counselling, by seeing mental health professionals, and through her membership in a local church. [ 6 ] The Applicant’s progress has been recognized to some degree by the Respondent, though not to the extent that she would like. The length of time of her supervised visits has increased over time, but the Applicant believes that the time has come for the requirement for supervision to be lifted.

She is concerned that the Respondent is alienating the child’s affections for her. She would like to eventually share parenting time with her child, but she is realistic in understanding that the time for this has not yet arrived. She points out that she has never physically harmed her child and that the person she was when the separation agreement was signed is not the person she is today. [ 7 ] The Applicant is attending college on a scholarship and her course will be completed next February (of 2018). She is first in her class and her goal is to work in a medical office.

She resides in a two bedroom home in Abbotsford with a room-mate who is away most of the time. There is a friendly dog in the home that the child loves to walk and play with. The Applicant is unable to understand why her child is allowed to stay overnight at other people’s homes, but not at hers. [ 8 ] Mistakes from her past life have left her with a debt to ICBC that prevents her from being able to hold a driver’s licence, but she hopes to address this problem once she has full-time employment.

She has been unable to provide child support because of her lack of a significant income, but she has stated that she is prepared to meet her financial obligation to her child when she is working full time and has an income at a level to do so. [ 9 ] The Applicant’s parents reside in Kelowna. During the period that their daughter was active in her addiction, they tried to help her, but the Applicant’s behaviour made it difficult for them. The Applicant’s father testified that in the past two years, the Applicant has become remorseful and the relationship that the Applicant has with her parents is being rebuilt.

They continue to be a resource for the Applicant’s support. They have maintained a good relationship with their grandchild. To his credit, the Respondent has not restricted the relationship that the maternal grandparents have with their grandchild, but he does not permit them to see the child if the Applicant is present. [ 10 ] Two of the early casualties of addiction in families are trust and communication, and this is what has happened to this couple. The Respondent has done a remarkable job of parenting his child under difficult circumstances. The Applicant’s addiction put

considerable stress in the home and imposed upon the Respondent the responsibility for all of the child care as well as providing financially for his family. It created physical, emotional and financial pressures which the Respondent has somehow managed to bear. It was especially painful for him having to witness the Applicant’s inability to safely care for the child because of her addiction. It hurt him to know that his child was at risk in this manner. [ 11 ] The Respondent testified that it was hard for him to sign the separation agreement because it was an acknowledgement that his family was over.

After witnessing several years of the Applicant’s struggle with her addiction, the Respondent lost hope for her recovery and began to focus on building a future for himself and his child. He entered into a new relationship and has remarried. His new family life appears to be a happy one. His current wife testified at the hearing of this matter and she presents as someone who has a healthy understanding of her role in the child’s life and who does not harbour any resentment or acrimony against the Applicant.

The child loves her and the feeling is mutual. [ 12 ] A common problem for those in recovery is an initial difficulty in understanding how their addiction has adversely affected those around them. Some persons, early in their recovery, operate under the mistaken view that since they are no longer using their drug of choice, everyone should rejoice and just forget about the past.

As a leading text on recovery from drug addiction puts it, many addicts in recovery have difficulty in understanding the harm that they have caused others while in the midst of their addiction, often assuming that since they were in the grip of the addiction, they were not responsible for the harm caused, and that others should readily see this. This is not a fair description of the Applicant, who has an appreciation of the problems she created for others. But here, clearly a greater empathy on her

part in understanding the Respondent’s point of view is called for, as part of the healing process for the entire family. [ 13 ] The Applicant sees her call for greater contact with her child and the refusal of the Respondent to meet those requests as controlling behaviour on his part and as his engaging in parental alienation. The Respondent sees the Applicant behaviour in sending repeated and demanding text messages as hurtful and as her failure to truly appreciate how he and his daughter were hurt by her addiction.

Painful incidents that occurred when the Applicant was living in the home as a performing addict have not been forgotten and are not so easily forgiven, especially when demands are being made upon him by the Applicant. He testified that he is not yet ready to have a co-parenting relationship with the Applicant because he doesn’t trust her. He does acknowledge however that she had good intentions and that she wants to become a good mother to her child.

He testified that he has taught his daughter to speak positively about the Applicant and that the child remembers her mother when saying her nightly prayers. [ 14 ] On September 15, 2017, this child was interviewed by Paul Jacks, a member of the Family and Civic Roster of Mediate BC and the Roster of the Hear the Child Society of BC. He met on two occasions with the child and prepared a “Hear the Child Report”. In the report, the child told the report writer that she knows that both of her parents love her. She displays an appreciation for all that the Respondent has done for her.

She is also aware that the Applicant does not have a lot of money at present. She is a very resilient and sweet child. When asked about her opinion on spending more time with the Applicant, she says that while she does not feel entirely comfortable at the Applicant’s home and does not wish to stay overnight, she will do so if required and will do her “best to adjust.” [ 15 ] Counsel for the Applicant is concerned that the views of the child are really those of the Respondent. The Applicant herself states that a decision of this importance should not be put on the shoulders of the child.

Applicable Law and Analysis [ 16 ] The parties agree that the measures which the Applicant has taken to address her addiction are such that an increase in the Applicant’s parenting time is warranted, but they disagree about the pace of that increase. The Applicant feels that the time has come for overnight visits with the child, and asks that her parenting time should include alternate weekends with the child remaining overnight.

The Respondent asks that the Applicant’s parenting should not be extended to include overnight visits for at least six months in order to help the child to adjust to such a drastic change in her life. [ 17 ]

Section 37 of the Family Law Act of British Columbia directs that a court that is considering making an order respecting guardianship, parenting arrangements or contact with a child, must consider the best interests of the child only. 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.

[ 18 ] For an order to be in the best interests of a child, it must consider how best to protect the child's physical, psychological and emotional safety, security and well-being. This

section of the Family Law Act goes on to state that the court making the order may consider a person's conduct only if it substantially affects one of the factors listed above. [ 19 ] The evidence In this case satisfies me that the child is not in any physical danger from the Applicant while the Applicant continues to remain clean and sober, and while she continues to properly address her mental health challenges. She has demonstrated the willingness and an ability to do so, but as she probably understands as well as anyone, this is a problem that will be with her for the rest of her life.

Victory over her addiction can never be declared, but the Applicant has at least shown sufficient change in her life such that the re-establishment of a meaningful relationship with her daughter would be in the child’s best interest. [ 20 ] I agree with the Respondent that the increase in the parenting time should take place gradually.

This is important firstly for the child’s comfort level, and secondly to reinforce in the Applicant’s mind the importance of giving the Respondent and the child time to recover from the bad memories of the Applicant’s drug use, and for them to gain confidence and trust in her by seeing her demonstrate true humility. [ 21 ] Leading recovery literature suggests that in order to build a solid recovery, key requirements include: (1) a surrender on the part of the person in recovery, demonstrating a willingness to do what is required to maintain that recovery in a spirit of true humility; and (2) the willingness to make amends to those harmed in the course of the active addiction.

The recovering addict is asked to approach those who have been harmed with humility and patience. In such a spirit, over time it becomes easier for those who have been harmed to be forgiving, but it is not an overnight matter. [ 22 ] The order which will now be pronounced is intended to do for the parties what they cannot yet do for themselves, and that is to set a time table for the Applicant to be properly reintegrated into the child’s life to a greater extent.

It is intended to look at least to the next year so that the parties are not required to argue over what is and what isn’t a proper amount of parenting time for the Applicant. [ 23 ] In addition to the order that will be made, the following suggestions do not form the part of any court order, but are recommended to the parties as being in the best interests of this child: 1. The Applicant should meet with the Pastor of her church, or with her counsellor in order to discuss how she can properly make amends to the Respondent for her conduct during the time that she was active in her addiction.

In doing so, she should focus only on her conduct and not that of the Respondent. 2. The Applicant should compose a formal written relapse prevention plan with input from her counsellor. This should be reviewed periodically with one of her parents, or with a trusted friend. 3.

The Applicant and Respondent should make inquiries with the Family Justice Counsellor, with Abbotsford Community Services or any other agency about any affordable counselling available to them (such as the “Building Relationships and Connections” Program which ACS provides) to help them communicate with one another respectfully and to co-parent co-operatively. The Respondent’s wife is encouraged to participate in the communications counselling, if she is willing to do so. 4. The Applicant should attend as many of the child’s school and extra-curricular programs for which parents are invited to attend.

Order [ 24 ] The following order will institute a progressive

schedule of increased parenting time for the remainder of the child’s school year and her summer holidays. It speaks to what will happen over Christmas, upcoming holidays in the first part of 2018, the child’s next birthday, and the child’s summer holidays. The order provides for gradual overnight parenting time, with the first such instance occurring during Christmas. Thereafter, it will occur once per month for the remainder of the school year.

After that the overnight parenting time will increase to occur on alternating weekends. [ 25 ] It is my hope that with some of the stress of this litigation behind them, and nothing to argue over (the issue of parenting time having been decided for them for the time being), communication can improve and that in time, the parties may be able to discuss what options for parenting time are more convenient for them and flexible for the child.

I remain convinced that these parents are good and reasonable people and that in time, the sting of past hurts will subside and they will come to trust one another in the belief that what each of them wants is for their daughter to grow up healthy and happy. [ 26 ] In closing, I wish to apologize to the parties for not issuing this order earlier, as I had hoped. The demands of other court files prevented me from meeting the time frame I had hoped. The order to be made in this matter will read as follows: Upon the Court being advised that the name and birth date of the child is C. G. J, born (d.o.b.), 2007; 1.

The Court is satisfied that D.P.J. and J. L. J. are the guardians of the child under s.39(1) of the Family Law Act (FLA). 2. Under s. 40(3)(

a) of the FLA , D. P. J. will have all of the parental responsibilities for the child, provided that J. L. J. will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers. 3. J. L. J. will have parenting time with the child, unsupervised, as follows: (

a) For the months of November and December, 2017, each Saturday from 9:00 a.m. to 9:00 p.m. (except during the period of the child’s Christmas vacation).

(

b) During the child’s Christmas vacation for two consecutive days commencing at 9:00 a.m. on the first day and ending at 9:00 p.m. on the second day. If the parties are unable to agree on what these two days shall be, they shall be December 26 and 27. (

c) For the months of January through April and June of 2018, on the first and second Saturday of each month from 9:00 a.m. to 9:00 p.m., and on the fourth Saturday of the month at 9:00 a.m. until Sunday at 9:00 p.m., as well as on Saturday March 31, 2018 (Easter Saturday) from 9:00 a.m. to 9:00 p.m.; during the month of May, on the first and fourth Saturday of the month from 9:00 a.m. to 9:00 p.m., and on the second weekend (the weekend of Mother’s Day) from Saturday at 9:00 a.m. until Sunday at 9:00 p.m. (

d) On the day before or the day after the child’s birthday from 6:00 p.m. to 8:00 p.m. (

e) From and after June 29, 2018, every second weekend (commencing on the weekend of July 7, 2018 from Saturday at 9:00 a.m. until Sunday at 9:00 p.m. In addition, the child shall be in the Applicant’s care for a full week during the child’s school summer vacation. If the parties are unable to agree when this week shall occur, it shall begin on August 4, 2018 at 9:00 a.m. and end on Saturday, August 11 th at 9:00 a.m. 4. This parenting time

schedule may be reviewed on application of either party after September 1, 2018. 5. Nothing in this order shall prevent the parties from agreeing to additional parenting time for the Applicant, or from agreeing to change the parenting time set out in this order. 6. In addition to the parenting time set out in this order, the Applicant may attend any of the child’s school or extra-curricular activities at which parents are entitled to attend. 7.

Nothing in this order shall prevent the Applicant from spending time with the child when she is in the care of her maternal grandparents, whether or not this takes place during her scheduled parenting time. 8. In addition, the Applicant may telephone the child at least twice per week on separate days. The Applicant should first inquire of the child as to what days and times are most convenient for the child. 9. The parties may, either through counsel, through the office of the Family Justice Counsellor, or directly, submit to the court for approval a consent desk order amending the terms of this order. 10.

The Applicant’s parenting time may be suspended on application to this court in the event that she relapses into the use of non- prescribed drugs or illegal controlled substances. She shall submit to random drug testing (either by hair follicle test or urinalysis) on the reasonable request of the Respondent, at his expense and as arranged by him. 11.

Upon completion of her current education program and within 30 days of finding employment, the Applicant shall file with this court, and deliver to the Respondent, a financial statement in Form 4 of the Provincial Court (Family) Rules, together with all required attachments. Dated at the City of Abbotsford, in the Province of British Columbia, this 24 th day of November. ____________________________________________ (The Honourable Judge K. D. Skilnick)