R.M. v. J.D. Date:, 2016 BCPC 191

Citation: R.M. v. J.D. Date: 20160613 2016 BCPC 191 File No: 16098 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.M. APPLICANT AND: J.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Kim Grimwade

Place of Hearing: Kamloops, B.C. Date of Hearing: June 1, 2016 Date of Judgment: June 13, 2016 [1] This is an application by R.M. for an order that R.M. be acknowledged as the sole guardian of K.J.M., born [omitted forpublication], and for all of the parental responsibilities for that child. [2] R.M. and J.D. began cohabiting in October 2012. R.M. became pregnant. In July 2013, the parties moved to Kamloops fromTumbler Ridge. On August 20, 2013, while R.M. was nine months pregnant and overdue, the parties got into a physical altercation overJ.D. returning home under the influence of alcohol.

During that altercation, J.D. pushed R.M. Because of prior instances of abuse, R.M.thought it prudent to report the incident. She also left the family home on the morning on August 21, 2013, going to her grandmother’shome in Barriere, British Columbia. [3] R.M. decided to remain separated from J.D. until he was clean and sober and better able to care for their son. Shecommunicated this decision to him and he agreed that he needed to quit drinking again. [4] R.M. was sceptical of his intentions so she checked into a hotel in Kamloops near the hospital. She went into labour on[omitted for publication].

She kept her residence at the hotel until [omitted for publication] when she checked out. [5] J.D. attended the hospital for the birth of their son. At that time, R.M. determined that she was no longer optimistic that sheand J.D. could work out their differences. She said another altercation ensued. She had to ask J.D. to leave the hospital because he wasextremely agitated and cursing her while she held their day old son. [6] On discharge from the hospital, R.M.’s mother returned with her to the family home because she was uncertain of J.D.’swhereabouts.

When they arrived at the home, R.M. found a note from J.D. conceding the home to her, telling her that he loved them andthat he would send money for rent and child support. [7] Despite the note and R.M.’s communication to J.D. that she no longer wished to try to resolve the issues in their relationship,J.D. appeared at the family home within a few days. He was there ostensibly to collect some of his belongings but made noacknowledgment of his previous behaviour at the hospital, reference to his note, or even to acknowledge the presence of R.M. and hermother.

He picked up the child “for a bit” and then took his possessions, leaving with his work colleague. R.M. presumed he wasreturning to Tumbler Ridge where he was working at the time. [8] This left R.M. feeling unsettled so she returned to her grandmother’s house a week later. She subsequently discovered that J.D.returned to resume residence at the family home. [9] Over the next two months, R.M. took K.J.M. to visit to J.D. On the last occasion, October 3, 2013, she arrived at the house tofind J.D. with two people who were strangers to R.M.

It was clear to her that J.D. and the two people had been drinking and abusingdrugs. That was the last occasion she took K.J.M. to see his father. Later that month, J.D. moved back to Tumbler Ridge. [10] J.D. next saw their son in February 2014 in the company of his father. He came to see R.M. at her grandmother’s house inBarriere. J.D. also occasionally contacts R.M. by e-mail. He asks about their son but does not engage with their son at all.

If J.D. asks,R.M. sends photos to him but there has been no personal contact with K.J.M. initiated by J.D. [11] On this evidence, it is clear that J.D. has never lived with his child and nor has he ever regularly cared for him. He does notsend child support except in amounts that have “been paltry and scattered”. R.M. does not seek support from J.D. [12] Under s. 39(3), a parent who has never resided with his child or regularly cared for him is not a guardian except in certainenumerated circumstances that do not apply to J.D. He has never regularly cared for the child nor has he lived with him. Ms.

Grimwadereferred me to two decisions, J.L.M. v. G.A.T., 2013 BCPC 96 , 2013 B.C.P.C. 96 and K.L.L. v. D.J., 2014 BCPC 85 ,2014 B.C.P.C. 85. In J.L.M., a decision of mine, I found that the court had statutory authority for declarations of non-guardianship incircumstances where a father had technically resided with the child but not in the capacity as a parent. That is not the circumstances Ihave before me. [13] In K.L.L., my brother Judge Brecknell determined that if the court has the power to acknowledge guardianship, it must also havethe power to acknowledge non-guardianship.

I find that it is the appropriate approach to take in this case. [14] I find as a fact that R.M. is a guardian of K.J.M., born [omitted for publication]. I find as a fact and acknowledge that J.D. is nota guardian of K.J.M. I therefore acknowledge that R.M. is the sole guardian of the child and shall have all parental responsibilities ofhim. ___________________________ S.D. Frame Provincial Court Judge