T.H. v. A.T. Date:, 2017 BCPC 112

Citation: T.H. v. A.T. Date: 20170413 2017 BCPC 112 File No: 15587 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.H. APPLICANT AND: A.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Appearing on her own behalf: T.H.

Appearing on her own behalf: A.T. Place of Hearing: Kamloops , B.C. Dates of Hearing: March 20 - 23, 2017 Date of Judgment: April 13, 2017 INTRODUCTION [ 1 ] T.H. (who prefers to be called [omitted for publication]) has two children: M.H., who was born on [omitted for publication] and is now 12 and C.H., who was born on [omitted for publication] and is now 11. The children’s father, D.H., was physically abusive to T.H. and was deported from Canada to England in 2008, apparently as a result of criminal convictions.

Until recently, D.H. has had no contact with the children. [ 2 ] T.H. grew up in Kamloops but now lives in Courtney on Vancouver Island. M.H. and C.H. have been living in Kamloops under the care of T.H.’s mother, A.T., since December 21, 2014. C.H. resides with A.T. and her husband, M.T. As a result of some challenging behaviours, M.H. has moved from A.T.’s home and now lives with T.H.’s twin sister, N.B., along with N.B.’s partner and two children. M.T. is T.H.’s and N.B.’s step-father.

A.T. and M.T. have an adult daughter together named K.T. (I will refer to [omitted for publication] as K.T. in order to distinguish her from her mother who I will continue to refer to as A.T.) [ 3 ] A.T. says that she initially only intended to have M.H. and C.H. over the Christmas break in 2014. A.T. says, however, that she became increasingly concerned about T.H.’s drinking, mental health, treatment of the children and exposure of the children to intimate partner violence directed at T.H. by her partner at the time, R.M.

By December 23, 2014, A.T. decided that she had to keep the children in Kamloops for fear they would be apprehended if returned to T.H. On December 26, 2014, A.T. reported her concerns to the Ministry of Child and Family Development. On December 28, 2014, A.T. telephoned T.H. to advise that she would not be returning the children to T.H. after the Christmas break. [ 4 ] On December 30, 2014, A.T. filed an application seeking joint guardianship of the children and parenting time. She also filed a Notice of Motion seeking an interim order for guardianship and primary residence of the children.

A.T. was given leave to have her Notice of Motion heard on short notice to T.H. A.T.’s Notice of Motion was heard by Judge Harrison on January 7, 2015. T.H. attended the hearing by telephone.

Following the hearing, Judge Harrison made an interim without prejudice order that the children would reside primarily with A.T., that A.T. could enrol the children in school in Kamloops, that T.H. would have “regular and liberal parenting time by telephone with the Children” and that, if T.H. “attends in Kamloops… to see the Children, that is to be accommodated.” [ 5 ] Following a number of further court appearances during which some largely procedural orders were made, T.H. did not attend a May 20, 2015 Family Case Conference (“FCC”).

Judge Dickey converted the FCC into a hearing and made orders that both T.H. and A.T. were guardians of the children, that A.T. would exercise all parental responsibilities for the children, that T.H. could obtain information about the children directly from various third parties, that the children would reside primarily with A.T. and that T.H. could have parenting time with the children as consented to by A.T. [ 6 ] On February 5, 2016, T.H. filed an application to vary the May 20, 2015 order to grant her “full” (meaning “sole”) guardianship of the children on the basis that A.T. had “mentally and emotionally abused” the children. [ 7 ] T.H. acknowledges that she had been through some very difficult times, during which she drank to excess, following the death of her partner, D.S., on May 4, 2014.

T.H. asserts, however, that A.T. took the children without good cause for A.T.’s personal financial benefit, has manipulated the children into believing lies about T.H. and has improperly interfered with T.H.’s telephone and other communications with the children. T.H. says that she has completely turned her life around. She says that she has quit drinking, has ended her intimate relationship with R.M., is taking a course to obtain a certificate in appliance repair and is working part-time in a café.

She says she can find suitable housing for herself and the children if the children are returned to her care. [ 8 ] A.T. filed a Reply on March 31, 2016 disagreeing to any changes to guardianship, parenting time and the allocation of parental responsibilities. A.T. is not convinced that T.H. has made the necessary changes to resume care of the children. A.T. has also counterclaimed for child support. [ 9 ] In the lead up to the trial, an FCC was held on November 3, 2016 before Judge Dickey. A.T. attended in person and T.H. by telephone.

The parties agreed to some changes to the parenting time arrangements such that T.H. would have telephone, Skype or email contact with the children to be supervised by a Child and Youth Mental Health Clinician who was working with M.H. named Patricia Juergensen. This contact was to occur not more than once per week for the first month and not more than twice per week starting in the second month. The contact was to occur only with the consent of the children. Unfortunately, Ms.

Juergensen was unable to provide supervision as the parties had hoped so there has been little contact between A.T. and the children since July of 2015.

ISSUES [ 10 ] The issues are: 1. is it in the best interests of the children to terminate A.T.’s guardianship of the children and grant sole guardianship to T.H.? 2. has there been a material change in circumstances since the May 20, 2015 and November 3, 2016 orders to enable me to consider varying the orders respecting parenting time and the exercise of parental responsibilities? 3. if there has been a material change in circumstances, what parenting time and/or contact arrangements are in the children’s best

interests? 4. if there has been a material change in circumstances, how should parental responsibilities be exercised in the children’s best interests? 5. if the children remain in the primary care of A.T., what, if any, child support should be paid by T.H.? ANALYSIS Credibility and Reliability [ 11 ] Before analysing the issues before me, I will first set out some general comments regarding the credibility and reliability of the witnesses who testified. [ 12 ] Over the course of four days, I heard evidence from a number of witnesses. T.H. and R.M. testified on behalf of T.H.

A.T., N.B. and K.T. testified on behalf of A.T. I also spoke to both M.H. and C.H. in my chambers. [ 13 ] There were challenging dynamics involved in this trial including a mother cross-examining her daughter and a sister cross- examining her twin and younger sisters. Despite these dynamics, all of the witnesses displayed many of the usual markers of credibility and reliability.

For example, each witness was attentive and articulate, testified with apparent sincerity and displayed emotions that were commensurate with the nature of the proceedings. [ 14 ] After carefully considering the whole of the evidence, I remained confident in the testimony of A.T. and her witnesses, including the children, but had concerns regarding the credibility and reliability of the testimony of T.H. and R.M. [ 15 ] My confidence in the testimony of A.T. and her witnesses flowed primarily from the internal consistency of the testimony of each of A.T.’s witnesses and the external consistency of the testimony of each of A.T.’s witnesses with the testimony of A.T.’s other witnesses and with objective pieces of evidence.

For example, A.T., N.B. and the children all gave consistent accounts of C.H. wanting his telephone calls with his mother to be monitored by A.T. and M.H. agreeing that it would be best for A.T. to also monitor her telephone calls with her mother. These witnesses also consistently described A.T. intervening during calls only when T.H. spoke inappropriately towards the children, normally by making disparaging remarks about A.T.

As another example, A.T., K.T. and the children all gave consistent accounts of the disclosures made by the children regarding concerning events that occurred while the children were being cared for by T.H.

In terms of external consistency with objective pieces of evidence, copies of various emails and text messages between the parties also consistently show that A.T. expressed her desire for T.H. to make changes in order to resume care of her children and tried to accommodate communications between T.H. and her children. [ 16 ] On the other side of the ledger, there were internal and external inconsistencies in the testimony given by both T.H. and R.M. [ 17 ] With respect to R.M., he described, for example, how T.H. was “out of control” and “drinking too much” when they met but maintained that she was nevertheless “always a good parent”.

R.M. also testified that, following a “180 degree turnaround”, he could not remember the last time he had seen T.H. drink. R.M. suggested at one point that T.H. had not been highly intoxicated in the last year. R.M. then acknowledged, however, the circumstances described in a Comox Valley RCMP Occurrence Report dated December 13, 2016. In that report, T.H. is described by the attending officers as appearing heavily intoxicated.

As a final example, while R.M. was clearly portraying T.H. as an honest person and good parent, he acknowledged authoring emails to N.B. describing T.H. as a “pathological liar”, a “lying, manipulating psycho” and “an unfit parent until she seeks psychiatric help”.

While it may be true, as R.M. testified, that he wrote these emails when he was drunk and upset, his inconsistent descriptions of T.H. did not inspire confidence in the balance of his testimony. [ 18 ] With respect to T.H., she relied heavily on certain records from an “app” that she used on a tablet to telephone the children to demonstrate that she called the children on C.H.’s birthday on [omitted for publication], that she was cut-off by A.T. and that A.T. then refused to answer subsequent calls from T.H.

A close look at the records discloses three short calls just after 5:00 p.m. to numbers at the T. residence - two to a landline which A.T. says she told T.H. not to use and the last one to A.T.’s cell. Contrary to T.H.’s assertions, the records show no subsequent calls on July 21, 2015 to any number associated with A.T.

Rather than support T.H.’s version of events, the records actually support A.T.’s account of speaking to T.H. just as supper was being served (I heard from multiple witnesses that supper is generally served promptly at 5:00 p.m. at the T. household), asking T.H. to telephone back but receiving no subsequent call from T.H. [ 19 ] More concerning is T.H.’s explanation regarding photographs of her associated with the December 13, 2016 RCMP Occurrence Report. One of the photographs shows a large bruise on the underside of her left upper arm and another shows a significant injury to her right eye.

The RCMP Report records that T.H. initially reported that R.M. had hit her with his hand but testified that the injuries were the result of a fall in the confined space of her kitchen. In my view, the photographs are consistent with T.H.’s first report to the RCMP and not with the cause she described in her testimony. [ 20 ] In the result, unless specifically indicated otherwise, whenever there is a conflict between the testimony of one of T.H.’s witnesses and the testimony of one of A.T.’s witnesses, I prefer the testimony of A.T.’s witness.

Guardianship [ 21 ] Only guardians exercise parental responsibilities and spend parenting time with children. (See s. 40 of the Family Law Act (“ FLA ”).) Parental responsibilities include such things as making day-to-day decisions affecting a child, having day-to-day care, control and supervision of a child, making decisions regarding where a child will reside, making decisions regarding a child’s education and participation in extra-curricular activities and exercising other responsibilities reasonably necessary to nurture the child’s development. (See s. 41 of the FLA .) Decisions regarding guardianship are obviously central to the well-being of children. [ 22 ] Section 51(1)(

b) of the FLA provides that, on application, a court may terminate a person’s guardianship of a child. This

section falls within

Part 4 of the FLA which deals with “Care of and Time with Children”. Section 37(1) of the FLA provides that in making an

order under

Part 4 respecting guardianship, “the court must consider the best interests of the child only”. Section 37(2) then sets out a non-exclusive list of factors that the court must consider in determining what is in the best interests of a child.

Section 37(3) provides, in part, that “an 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.” Section 37(4) provides that a court may consider a person’s conduct “only if it substantially affects a factor listed in subsection (2), and only to the extent that it affects that factor.” [ 23 ] I will begin this part of my analysis by considering each of the factors listed in s. 37(2) of the FLA .

Factor (a): the children's health and emotional well-being [ 24 ] M.H. impressed me as being smart, articulate, spontaneous, spirited and funny. M.H., however, faces some challenges.

While M.H. does reasonably well at school academically, an Interior Health Children’s Assessment Network (IHCAN) Interdisciplinary Report completed June 10, 2016 found that M.H. has “some difficulties with attention, daily living skills and self-regulation in real world environments” and has a “profile consistent with Attention Deficit Hyperactivity Disorder (combined subtype).” [ 25 ] I found C.H. to be a sweet and soft-spoken child who was attentive and articulate. Unfortunately, C.H. faces even greater challenges than M.H. C.H. was enrolled in a local school in January 2015.

Within the first few weeks, he was found to be “severely delayed academically and socially”. An IHCAN Interdisciplinary Report dated June 10, 2016 diagnosed C.H. with Fetal Alcohol Spectrum Disorder with Sentinel Facial Features, microcephaly and learning disabilities in reading, written expression and mathematics. C.H. is also visually impaired suffering from ocular albinism and nystagmus. [ 26 ] On arrival in Kamloops, both M.H. and C.H. had hygiene issues. Neither liked to bathe and neither maintained good oral hygiene. As well, C.H. had a significant bed-wetting problem.

He told me, and I believe, that when he was living with his mother, she yelled at him, called him “pee boy” and made him sleep on a wet mattress or on the floor all of which caused C.H. great shame and embarrassment. C.H. and A.T. also told me, and I believe, that since being in Kamloops, C.H. has never been humiliated for wetting his bed and has now undergone a medical procedure which has resolved his issue. I also accept that this has greatly increased C.H.’s self- confidence and self-esteem. [ 27 ] Of significant concern, since arriving in Kamloops, both M.H. and C.H. have expressed suicidal thoughts.

A.T. has ensured that these thoughts were fully assessed. Thankfully, in both cases, the assessments concluded that neither M.H. nor C.H. wants to die. M.H. was feeling frustrated and, as a result of her impulsivity, blurted out a comment that she did not mean. C.H.’s comment was only directed at ending the bad dreams that he experiences. [ 28 ] As a result of the various assessments the children have had, A.T. has put many supports in place for the children in Kamloops.

M.H. sees a paediatrician, is on medication to help with her emotional regulation, has learning assistance at school, has completed a Mind Over Madder program, has access to a Youth Mentor, sees Ms. Juergensen for counselling and attends the Parkview Child and Adolescent Mental Health Centre for regular follow up. C.H. has an Individual Education Plan to support his learning at school and also receives support through Insight Support Services which is an organization that provides supports and services to youth who suffer from FASD.

A.T. is following various recommendations to provide the appropriate structure for M.H. and C.H. to succeed. [ 29 ] Since coming into A.T.’s care, both children have also been involved in various extra-curricular activities which they enjoy and which are good for their health and emotional well-being. [ 30 ] On the basis of all the evidence, I conclude that M.H. and C.H. have made great strides since coming to Kamloops and that their health and emotional well-being have significantly improved under A.T.’s guardianship.

I also accept the findings in M.H.’s IHCAN assessment that “(s)he would benefit from ongoing stability, clear and consistent boundaries, and counselling to address her mental health” and in C.H.’s IHCAN assessment that he “will benefit from stability and security in the home and school environments.” Factor (b): the children's views [ 31 ] The children were crystal clear in their views. [ 32 ] M.H. misses her mother but does not want to move back with her. M.H. said that she would be “okay with” phone contact with her mother but was unsure about seeing her mother - even with supervision.

Before resuming a bigger role in M.H.’s life, M.H. needs her mother to “quit drinking”, end her relationship with R.M., “get a job”, “not lie” and not expose the children to any “abuse” or “neglect”. [ 33 ] C.H. knows his mother misses the children and is open to moving back to live with her - on certain conditions. C.H. wants R.M. to be “gone” and his mother to stop smoking and drinking, live in a better home and “prove she can raise (her children) again.” C.H. is willing to give phone calls “a second chance” and is open to Skype as long as R.M. is not present.

C.H. is also open to visiting his mother provided another adult is present and R.M. is not. [ 34 ] Though not expressed by them in legalistic terms, I took from M.H. and C.H. that both are happy with the current guardianship arrangements. Factor (c): the nature and strength of the relationships between the children and significant persons in the children's lives [ 35 ] The children’s relationship with their mother is, at best, strained.

Other than a brief visit in the courthouse during the trial, the children had not seen their mother since December 2014 and had not spoken much, if at all, to their mother since the phone call on C.H.’s birthday on [omitted for publication]. T.H. blames A.T. for the growing distance between herself and the children but I find that the distance is the result of the difficulties T.H. has experienced since the death of D.S. Even T.H. acknowledged that she began drinking every day and had a drink in her hand from shortly after she finished her morning coffee until she went to bed.

This drinking significantly impaired T.H.’s ability to effectively parent her children and undermined her relationship with them. I will outline T.H.’s struggles in caring for the children in more detail below.

[ 36 ] Though I was told that the children had some friendships on Vancouver Island, I was given very few details. Other than their mother, the children did not identify any significant relationships that they left behind when they came to Kamloops. [ 37 ] In Kamloops, the children have a number of important relationships. Foremost amongst these is their relationship with their grandmother, A.T. A.T. is the person who has been primarily responsible for their care since December 2014. As highlighted above, A.T. has taken many steps to the have the needs of the children assessed and met.

Both M.H. and C.H. care for their grandmother and appreciate the decisions she has made. They are both happy in their current living situations. [ 38 ] Though M.H. finds M.T. to be “grumpy” and has “fights” with N.B., M.H. has good relationships with both. In particular, M.H. says there is less yelling at N.B.’s than at her mother’s and that N.B. only yells at her for “legitimate” reasons. M.H. feels cared for by N.B. [ 39 ] C.H. has an especially close relationship with M.T.

I accept K.T.’s description that M.T. is a mentor to and positive male role model for C.H. [ 40 ] As a result of the children’s curiosity and at their request, A.T. has allowed the children to begin communicating with their father. Given his history, A.T. appreciates that this communication and any future contact must be carefully monitored to ensure it is in the children’s best interests. [ 41 ] If I were to sever A.T.’s guardianship, I accept A.T.’s testimony that T.H. would cut her and the rest of the children’s Kamloops family out of the children’s lives.

I would also be less confident in the children’s ability to build a positive relationship with their father. On the other hand, if I maintain A.T.’s guardianship, the children will maintain their positive relationship with A.T. and their Kamloops family and also have a realistic prospect of re-establishing a better relationship with both their mother and their father. Factor (d): the history of the children's care [ 42 ] From their births until December 2014, T.H. was the primary caregiver for the children.

The evidence is clear that T.H. deeply loves her children and that she established routines for them and met their basic needs. The evidence is also clear that T.H.’s drinking, choice of partners and grief prevented her from providing the type of care her children needed. [ 43 ] Though there were basic routines for the children and some happy times, I conclude that life for the children with T.H. was often chaotic and unpredictable. T.H. moved frequently and was involved in abusive relationships. T.H. resorted to yelling at her children and humiliated C.H. regarding his bedwetting.

T.H. engaged in inappropriate adult behaviours in front of the children and allowed R.M. to speak in an inappropriate way to M.H. about her “tits”. Though C.H. did not witness any domestic violence between R.M. and T.H., M.H. witnessed one episode in which R.M. injured T.H. and heard what sounded to M.H. like a further physical altercation between them.

While the injury to T.H. witnessed by M.H. may have been the result of “play wrestling” that went too far, the home environment was nevertheless frightening for the children both of whom view R.M. as an abusive person who they do not want to be part of their mother’s or their lives. [ 44 ] Insofar as T.H. sees her history of caring for the children in a much more positive light, I find that her perception has been impaired by her heavy drinking and does not match the reality of the situation. [ 45 ] As highlighted above, the children have been in A.T.’s care since December 2014.

During that time, the children’s needs have been assessed, many supports have been put in place and the children have made many gains. While I would prefer there to be no yelling at N.B.’s home, the children are loved, cared for and happy. Factor (e): the children's need for stability, given the children's age and stage of development [ 46 ] All children need loving, supportive, secure and stable environments to reach their full potential. As a result of M.H.’s ADHD and C.H.’s FASD, however, M.H. and C.H. have heightened needs.

For the reasons outlined above, T.H. has not been able to provide the type of environment her children need in order to flourish. A.T., on the other hand, has. Factor (f): the ability of each guardian to exercise her responsibilities [ 47 ] T.H. and R.M. say that T.H. has turned her life around and is able to resume her parental responsibilities for the children. I have to say there were some positive signs that this may be true. I commend T.H. for maintaining her composure and treating others respectfully in the courtroom. This showed me that T.H. has the capacity to handle stress and maintain her sobriety.

While I sincerely hope that T.H. has quit drinking and ended her romantic relationship with R.M. for good, there are some troubling signs that T.H. is not yet in a position to responsibly exercise her parental responsibilities. [ 48 ] I am troubled by the December 13, 2016 RCMP Occurrence Report which both T.H. and R.M. agreed accurately reflects that T.H. was highly intoxicated on that day.

I am troubled by T.H.’s ongoing and vile written communications to A.T., including one dated January 25, 2017 that starts with T.H.’s usual address to A.T. (which refers to female genitalia and is so vulgar that I will not write the word in this decision) and ends with an old English word directed to A.T. which T.H. says means “whore”. I am also troubled by unwelcomed and equally vile written communications sent by R.M. to A.T. as recently as days before the trial which I have to conclude were sent with, at the very least, T.H.’s tacit approval. [ 49 ] At best, T.H. is in the very early stages of her recovery.

In my view, T.H. will need to demonstrate that she can maintain her sobriety for a prolonged period of time and also communicate civilly with others before I could conclude that T.H. could exercise her parental responsibilities in the children’s best interests. [ 50 ] As for A.T., I reject T.H.’s arguments that A.T. is unable to exercise parental responsibilities in the children’s best interests. [ 51 ] I reject the idea that A.T. “kidnapped” the children for her personal financial gain. I am certain that the cost of raising the

children far outstrips the Canada Pension Plan children’s benefit (which is paid on account of D.S.’s death) and any other government benefits A.T. receives on behalf of the children. If A.T. was motivated by money, she would do much better by simply working more and avoiding any child-related expenses by leaving the children with T.H. [ 52 ] I reject the idea that A.T. has manipulated the children into believing lies about T.H. and that A.T. has improperly interfered with the children’s communications with T.H. The best evidence on these points came from the children themselves.

Both children have insight into T.H.’s struggles based on their own experiences. Both know the changes T.H. needs to make in order to be the best possible parent to them. Both considered it best for communications with T.H. to be monitored based on T.H.’s conduct, not A.T.’s. Neither said anything at all to give me the impression that A.T. has manipulated them in any way. If A.T. had tried to manipulate the children, I am confident that M.H. is bright enough to have recognized that and assertive enough to have told me.

After all, M.H. spoke her mind freely to me, including about M.T. being “grumpy” and her “fights” with N.B. [ 53 ] Finally, I do not find it necessary to explore issues T.H. raised about a complaint she says she made to her mother as a child regarding sexual abuse allegedly perpetrated against her by a step-uncle. A.T. flatly denies that any disclosure was made to her. I take very seriously any sexual abuse of a child but, in the context of this case, have concluded that any findings I might make would not have a substantial impact on my current views regarding this factor.

Under s. 37(4) of the FLA , I, therefore, could not take into account T.H.’s allegations about A.T.’s conduct regarding this factor in any event. [ 54 ] A.T.’s track record of having the children’s needs assessed and met clearly establishes that she is able to appropriately exercise her responsibilities as a guardian of the children.

Factor (g): the impact of any family violence on the children's safety, security or well-being [ 55 ] “Family violence” is defined broadly in the FLA to include physical, sexual, psychological and emotional abuse, attempts to physically or sexually abuse a family member and direct or indirect exposure of a child to family violence. [ 56 ] In this case, both M.H. and C.H. are aware of physical abuse perpetrated by R.M. against their mother and, as a result, understandably do not feel safe or secure in his presence.

The children have heard their mother direct angry and inappropriate language to A.T. which has been harmful to their sense of safety, security and emotional well-being. I consider T.H.’s humiliating name-calling of C.H. to have been emotionally abusive and harmful to his well-being. I also consider the sexually inappropriate language used by R.M. towards M.H. to have undermined her sense of safety, security and emotional well-being. [ 57 ] In addition, T.H. and R.M. have been psychologically and emotionally abusive towards A.T. and, to a lesser extent, N.B.

Both T.H. and R.M. have said horrible things to and about A.T. and N.B. Both A.T. and N.B. have had to endure being called the vulgar word I referred to above as well as “bitches” and “whores”. T.H. and/or R.M. took out two abusive Craigslist ads regarding A.T. One was titled “Pussy Needs Pounding” and provided A.T.’s contact information indicating that A.T. was married but looking for discrete sexual encounters. The other was titled “In need of a proper mother” and said highly derogatory things about A.T. T.H. and R.M. also threatened to ruin A.T.’s career and often stated they wished she were dead.

M.H. told me that, unbeknownst to A.T., she came across some of this written material in A.T.’s home. While A.T. should have done a better job of ensuring these materials were completely inaccessible to M.H. and C.H., it is T.H.’s and R.M.’s communications that have harmed the children’s caregivers and M.H. and that pose a risk to C.H. if he were ever to become aware of the communications. [ 58 ] I acknowledge that A.T. and N.B. have both used colourful and even strong language, including at times in the presence of the children. In one example, A.T. lost her composure and told T.H. to “go fuck herself”.

The use of such language poses a risk to the children in the sense that it may become normalized for them to expect to be spoken to in that way or to deal with conflict in a similar fashion. A.T. and N.B. will have to redouble their efforts to choose appropriate words and tones in all of their dealings with or in the presence of the children in the future. That said, based on what I heard from M.H. and C.H., the children feel the language used by A.T. and N.B. has been justified.

I conclude that the children have not been harmed in any meaningful way as a result of the language used by A.T. in the children’s presence or by N.B. directed at M.H. 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 children and meet the children's needs [ 59 ] There is no suggestion that T.H. has ever been physically violent towards her children or that she would want them to be harmed in any way.

However, as a result of her drinking, she has exposed her children to her own physically abusive relationship with R.M., has been emotionally abusive to C.H., has allowed R.M. to be emotionally abusive to M.H. and has harassed and threatened important people in the children’s lives.

As I have already indicated, until T.H. demonstrates that she is no longer abusing alcohol and can communicate civilly with others, I conclude that her ability to care for the children and meet their needs is impaired and that there is a real risk that she will continue to expose the children to family violence in the broad sense used in the FLA .

Factor (i): the appropriateness of an arrangement that would require the children's guardians to cooperate on issues affecting the children [ 60 ] At this stage, A.T. is open to dealing civilly with T.H. but T.H. is far from demonstrating that she is ready to deal with A.T. in a similar fashion. Given the highly offensive nature of T.H.’s communications with A.T., it would be inappropriate at the present time to require cooperation between the two of them on any issues affecting the children.

Factor (j): any civil or criminal proceeding relevant to the children's safety, security or well-being [ 61 ] Fortunately, at present, there are no civil or criminal proceedings relevant to the children’s safety, security and well-being. Conclusion on T.H.’s Application for Sole Guardianship [ 62 ] Based on my assessment of all of the factors in s. 37(2) of the FLA and the circumstances as a whole, I have concluded that it

would not be in the children’s best interests to terminate A.T.’s guardianship and make T.H. the sole guardian of the children. At this point, A.T. has clearly demonstrated that she is the person who is best placed to protect the children’s physical, psychological and emotional safety, security and well-being. I, therefore, dismiss T.H.’s application for sole guardianship. Material Change [ 63 ]

Section 47 of the FLA empowers the court to vary orders regarding the exercise of parental responsibilities and parenting time “if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the children, including because of a change in the circumstances of another person.” The case law makes clear that it is not any change that will do. There must be a “material” change. [ 64 ] The children’s needs and circumstances have not changed since the making of the May 20, 2015 and November 3, 2016 orders.

Because of their challenges, they have a heightened need for love, security, stability and safety. There is no question that the children would benefit from having a loving, secure, stable and safe relationship with their mother. The real question is whether T.H.’s circumstances have changed to the point where some variation in parenting arrangements would be warranted to provide her with a bigger role in her children’s lives. [ 65 ] On T.H.’s own testimony, it is apparent that she hit rock bottom after the death of D.S.

Her drinking got completely out of hand - to the point that she was making her own alcohol in a still in the family home and drinking throughout the day on a daily basis. Her relationship with R.M. resulted in many contacts with the RCMP and exposed the children to inappropriate adult behaviours and language. T.H. humiliated C.H. about his bed-wetting.

T.H. not only unfairly blamed but villainized and vilified her mother for stepping into the breech to care for M.H. and C.H. when T.H. was clearly unable to do so herself. [ 66 ] Any changes that T.H. has made regarding her drinking are recent and, in my view, not sufficiently rooted to lead me to substantially vary the existing parenting arrangements. That said, T.H. has finally realized that she has to make some major changes in her life if she is to re-establish the relationship that both she and the children want her to have with them.

T.H.’s change in understanding is sufficient that I am prepared to vary some of the parenting arrangements in the hope of helping this family heal and establish functional relationships that will best serve the children’s interests. [ 67 ] Another material change since the November 3, 2016 FCC order is that Ms. Juergensen is unable to supervise communications between T.H. and the children. The intent of the FCC order regarding parenting time has been frustrated by this development and calls for a variation.

Parenting Time [ 68 ] Given the length of time that had elapsed since T.H. had any meaningful communication with the children, the terms of the November 3, 2016 FCC order were an appropriate means of trying to re-establish a functional relationship between T.H. and the children. The reason the FCC order failed was because Ms. Juergensen was unable to supervise the intended calls. In my view, it is still appropriate to slowly rebuild communications between T.H. and the children and for any communications between T.H. and the children to be supervised.

From the perspective of reliability and the children’s comfort, it will be best for communications to be supervised by A.T., N.B., K.T. or any other adult who is available, known to the children and acceptable to both T.H. and A.T. [ 69 ] Further, in my view, clear conduct orders are required to ensure that communications between T.H. and the children actually build towards the type of positive relationship the children need and deserve to have with their mother.

In my view, orders establishing a consistent time for calls, ensuring T.H.’s sobriety, ensuring R.M.’s absence and ensuring polite and respectful communications during T.H.’s parenting time would be in the children’s best interests. I also believe it would be best to provide T.H. the opportunity to have further parenting time, which might include unsupervised and overnight parenting time, subject to the children’s wishes and A.T.’s consent.

If T.H. can comply with the conduct orders I will be making, she may be able to re-establish a sufficient level of trust with the children and A.T. that all concerned will work towards the children spending increasing time with their mother.

To that end, I believe that it would be appropriate for me to review the progress of the parties in approximately six months’ time to give me an opportunity to fine tune the parenting time and conduct orders I will be making to ensure the children’s best interests are served. [ 70 ] If T.H. is unable to control her drinking and abide by the parenting time and conduct orders I make, I fear that her opportunity to play a meaningful and positive role in her children’s lives will be lost.

Parental Responsibilities [ 71 ] For the reasons I have expressed above regarding guardianship, I am not prepared to make any changes regarding the exercise of parental responsibilities. The focus at this stage must be on re-establishing functional relationships between T.H. and her children as well as between T.H. and A.T. I leave open the possibility of future changes to the exercise of parental responsibilities and will review the topic with the parties in approximately six months’ time. Child Support [ 72 ]

Section 147 of the FLA provides that each parent or guardian of a child has a duty to provide support for the child except in specified circumstances which do not arise in this case. Further, in the circumstances of this case, s. 150 of the FLA , requires that child support be determined in accordance with the Federal Child Support Guidelines. [ 73 ] Under s. 3 of the Guidelines , child support is based on the number of eligible children and the income of the payor.

The income of the payor is usually taken to be the payor’s “Total Income” found at line 150 of the payor’s income tax return (ITR). [ 74 ] In this case, the FLA requires that T.H. pay child support to A.T. Though T.H.’s 2015 ITR shows line 150 income of only $384, T.H. has provided documents which show that she currently receives a pension in relation to D.S. from the Boilermakers Pension Plan in the gross amount of $1,027.65 per month. T.H. also testified that she earns approximately $300 per month from her part-time work.

Based on these numbers and rounding to the nearest $100, T.H.’s income for purposes of determining child support is $15,900.00 per year. At this very modest level of income, the Guidelines require that T.H. pay A.T. $254 per month in child support. [ 75 ] Ordinarily, T.H. would be required to pay this child support starting no later than the date that she first had notice of A.T.’s claim for child support. However, in the circumstances of this case, I am going to commence the child support order effective May 1, 2017.

I choose this date because to do otherwise would create significant arrears for T.H. which would create hardship for her. Ordinarily, that would not trouble me because T.H. could be seen as the author of her own misfortune for not voluntarily meeting her child support obligations much sooner. However, in this case, T.H. has been struggling since the death of D.S. She has had significant problems maintaining suitable housing. She has only just started to deal with her alcoholism. It is critical for the parties and for the children for T.H. to continue progressing.

In my view, there is a significant risk of T.H. faltering if burdened with “instant” arrears. Finally, though A.T. has had to shoulder the financial burden of raising her grandchildren since December 2014, she has been able to meet their needs without any financial assistance from T.H. CONCLUSION [ 76 ] It is in the best interests of M.H. and C.H. for their mother to play an important role in their lives - but only if she can do so in a stable, supportive and respectful way.

At this point, T.H. has lost the confidence and trust of her children and other members of her family and it will take some time to rehabilitate her relationships with her children and her family. The purpose of my orders is to ensure the children remain well cared for in a stable, supportive and loving environment while laying out a path for T.H. to have an increasing role in their lives. How far along the path T.H. travels depends entirely on her. [ 77 ] Though I am not varying many aspects of the existing orders, in my view, it will be best for the parties to have a single comprehensive order.

I, therefore, make the following order: 1. This order replaces all previous orders regarding guardianship, parental responsibilities, parenting time and conduct of the parties. 2. T.H.’s application to terminate A.T.’s guardianship and to be declared the sole guardian of M.H. and C.H. is dismissed. 3. T.H. and A.T. are the guardians of M.H. and C.H. 4. Under s. 40(3)(

a) of the Family Law Act , A.T. shall have all of the parental responsibilities for M.H. and C.H. 5. Under s. 40(2) of the Family Law Act , T.H. shall have the following parental responsibility: requesting and receiving from third parties health, education or other information respecting M.H. and C.H. pursuant to s. 41(

j) of the Family Law Act . 6. The primary residence of M.H. and C.H. shall be with A.T. 7. T.H. shall have telephone, Skype, email or other form of electronic parenting time with M.H. and C.H. supervised by A.T., N.B., K.T. or any other available adult who is known to M.H. and C.H. and acceptable to the parties. This parenting time is to occur at 6:00 p.m. on mutually agreed dates and only with the consent of M.H. and C.H. as determined exclusively by A.T. 8. For parenting time by telephone, T.H. is to initiate the calls and is to do so only to telephone number(

s) provided to her by A.T. in writing in advance. 9. For parenting time by email, T.H. shall be reached at [omitted for publication]. 10. T.H.’s parenting time with the children shall not occur more than once per week in the first month following this order and twice per week in the second month following this order. 11. In the third month following this order, T.H. may have any form of parenting time with M.H. and C.H., including in person and unsupervised parenting time, as agreed to in the sole discretion of A.T. and subject to the consent of M.H. and C.H. as determined exclusively by A.T. 12.

During her parenting time, T.H. shall not be under the influence of alcohol or any drug other than as prescribed for her by a physician. 13. During her parenting time, T.H. shall not allow the children to be exposed to any form of family violence as that term is defined in s. 1 of the Family Law Act . 14. During T.H.’s parenting time, R.M. shall not be present. 15. T.H. and A.T. will: (

a) put the best interests of M.H. and C.H. before their own interests; (

b) encourage the children to have a good relationship with the other and with the children’s other family members; and (

c) speak to the children about the other and the children’s other family members in a positive and respectful manner. 16. T.H. and A.T. will maintain polite and respectful communications with each other, refraining from any negative or hostile criticism, communication or argument. 17. T.H. and A.T. will not: (

a) question M.H. and C.H. about the other or time spent with the other beyond simple conversational questions; (

b) discuss with M.H. and C.H. any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other to M.H. and C.H. 18. T.H. is found to be a resident of British Columbia and to have a gross annual income of $15,900. 19. T.H. will pay to A.T. the sum of $254 per month for the support of M.H. and C.H., commencing on May 1, 2017 and continuing on the first day of each and every month thereafter, for as long as M.H. and C.H. remain eligible for support under the Family Law Act or

until further court order. 20. Commencing in 2018, for as long as M.H. and C.H. are eligible to receive child support under the Family Law Act , T.H. shall provide A.T. with: (

a) copies of her income tax return for the previous year, including all attachments, not later than June 1 st each year; and (

b) copies of any Notice of Assessment or Reassessment provided to her by Canada Revenue Agency, immediately upon receipt. 21. If T.H. changes her mailing address, email address and/or telephone number, she shall immediately provide A.T. and the court with the new contact information. 22. The Judicial Case Manager shall

schedule a one half day hearing before me in approximately six months’ time to review and, if warranted, revise the terms of this order. [ 78 ] I thank the parties for their respectful participation in the trial and look forward to seeing them at the review. In the meantime, I wish the parties as well as M.H. and C.H. the best. _____________________________ L.S. Marchand Provincial Court Judge