R.V.S. v. J.D.H. and S.A.H. Date:, 2017 BCPC 311

Citation: R.V.S. v. J.D.H. and S.A.H. Date: 20170929 2017 BCPC 311 File No: 1648427 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.V.S. APPLICANT AND: J.D.H. S.A.H. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Applicant: H. Zetzsche Counsel for the Respondent: S.A.H.: B. Levine Appearing on their own behalf: J. D. H.

Place of Hearing: Prince George , B.C. Dates of Hearing: June 1, 2 and August 25, 2017 Date of Judgment: September 29, 2017 [ 1 ] This is an application by R.S. and cross-application by J.H. for guardianship, child support, parenting time, and allocation of parental responsibilities in respect of six year old J.H., born [omitted for publication]. [ 2 ] J. is the son of J.H. and S.H. R.S. is J.’s maternal grandmother.

Although named as a Respondent in this proceeding, S.H. supports her mother’s application to be appointed as a guardian of J. and to have the majority of parenting time and responsibilities. [ 3 ] J.H. and S.H. lived together in Prince George when J. was born in [omitted for publication]. They separated in July 2014. Upon separation, Mr. H. moved with J. into his parents’ residence in Prince George. [ 4 ] Prior to his relationship with Ms. H., Mr. H. had been in a relationship with S.E. He and Ms. E. have two children together, J. (2), age seven, and R., age six. These are J.’s half-brothers. Mr. H. and Ms.

E. separated when J.(2) was nine months old and she was pregnant with R. After separating, Ms. E. moved from Prince George back to her home community of [omitted for publication], B.C. to take advantage of her family supports residing there. [ 5 ] Following her separation from Mr. H., Ms. H. commenced a relationship with a convicted sex offender, Mr. B. The Director for the Ministry of Children and Families intervened, the result of which was Ms. H. was prohibited from having unsupervised visits with J. Mr. and Ms. H. undertook an informal arrangement whereby J. would visit his mother on weekends at Ms.

S.’s residence so Ms. S. could supervise that contact. [ 6 ] On September 23, 2014, around two months after their separation, Ms. H. applied for and received an Ex Parte Order restraining Mr. H. from removing J. from Prince George. In that application she advised the court she believed Mr. H. intended to reconcile with Ms. E. and move with J. to [omitted for publication], B.C., some 300 kilometres away. [ 7 ] On December 2, 2014, Mr. and Ms. H. entered into a Consent Order pursuant to which both parents were presumed guardians with primary parental responsibilities being allocated to Mr.

H., including making decisions about where J. would live. Ms. H. was given reasonable supervised parenting time with J. to be supervised by Ms. S. Mr. H. continued to live with J. at his parents’ residence. [ 8 ] In early July 2015, Ms. H. and Ms. S. became aware of Mr. H.’s intention to move to [omitted for publication] B.C. to reunite with his former spouse, Ms. E. Ms. H. applied for an interim order seeking all parenting time and responsibilities for J., and in the alternative, seeking an order that J. live with Ms. S. Ms.

S. also filed a Notice of Motion seeking an order adding her as a party to the proceedings between Mr. and Ms. H., and seeking an order prohibiting Mr. H. from relocating J. to [omitted for publication]. In her supporting Affidavit, Ms. S. explained she would like to have “full custody” of J. until her daughter, Ms. H., was ready to parent. [ 9 ] In August 2015, Mr. H. and J. moved to [omitted for publication] to reunite with Ms. E. and J.’s siblings. Following an application by Ms. H., an Order was made on August 20, 2015, giving Ms. H. weekend parenting time from Friday through Sunday to be supervised by Ms.

S. [ 10 ] Shortly after Mr. H. moved to [omitted for publication] with J., an allegation was made that Mr. H. had sexually abused a nephew. The Director for MCFD intervened and ordained that Mr. H. could not live in the residence with his children or have unsupervised contact with them while the allegation was being investigated. Because of his limited financial means, Mr. H. moved back to Prince George to reside with his parents during the course of the RCMP and MCFD investigations. [ 11 ] On August 31, 2015, Ms.

H. applied for an interim order granting her interim residency of J. as well as disclosure from the RCMP and MCFD concerning their investigations of Mr. H. A Disclosure Order was made September 24, 2015. [ 12 ] J. continued to reside in [omitted for publication] with Ms. E. and his brothers while Mr. H. was living in Prince George awaiting the outcome of the MCFD and RCMP investigations. According to Ms. E., after around two months passed, Ms. S. contacted her expressing concerns about Ms. E.’s continued care of J. in circumstances where Ms. E. was not technically J.’s guardian. Ms.

S. offered to pick up J. and look after him until Mr. H. was allowed back with his children. Ms. E. agreed. At the time, Mr. H. was waiting to undergo a lie detector test with the RCMP. Ms. E. anticipated the investigation would be ongoing for several more months and told Ms. S. that as soon as they knew when Mr. H. was allowed to come back they would let her know and collect J. Mr. H. also understood and agreed to this temporary arrangement. [ 13 ] Ms.

S. admits that when she stepped in to look after J. it was on the basis that it was a temporary arrangement pending the completion of the Ministry’s investigation. There is some inconsistency in the evidence about why J. went to live with Ms. S. Ms. S. says she was asked and agreed to look after J. so he would not be forced into foster care, however, I find there is no evidence to suggest MCFD would have removed J. from Ms. E.’s care provided they followed the Ministry’s directions concerning Mr. H.’s contact with the children. Ms. S. testified that Mr.

H. asked them to take care of J. because “they had difficulty with the other two boys who were a lot to take care of”, without any mention of any MCFD investigation. His evidence in that respect is inconsistent with Ms. S.’s, Mr. H.’s and Ms. E.’s evidence. Ms. E.’s and Mr. H.’s evidence is consistent that the communications about J.’s move were primarily between Ms. S. and Ms. E., and that Mr. H. learned of the proposed arrangement from his spouse and he agreed to that arrangement. [ 14 ] I accept Ms. E.’s evidence that it was Ms.

S. who contacted her offering to look after J. until the Ministry investigation was concluded. At the time, Ms. E. was on her own caring for all three children, including J.(2) who has cerebral palsy and is restricted to a wheelchair, so she and Mr. H. agreed to the proposal. In any event, it is generally agreed that J. came into Ms. S.’s care because Mr. H. was restricted from caring for J. pending the outcome of the RCMP and MCFD investigations and this was only intended to be a

temporary arrangement. [ 15 ] On October 8, 2015, Ms. H., Mr. H. and Ms. S. entered into an interim without prejudice Consent Order stating that J. would reside with Ms. S. and that she would have all parental responsibilities for J. At the time, Ms. S. was not a guardian and no guardianship order was made. In my view, this was not a legal order. Pursuant to s. 40 of the Family Law Act, Ms. S. could not be legally assigned parental responsibilities. At best, Mr. H. could authorize Ms. S. to make day-to-day decisions in connection with J.’s care pursuant to Mr. H.’s exercise of his own parental responsibilities.

More specifically, s. 43(1) of the Family Law Act empowers a guardian to authorize a third party in writing to exercise specified parental responsibilities temporarily on the guardian’s behalf while the guardian is unable to do so. [ 16 ] Further, I doubt there is any power to order a child reside with a non-guardian under the Family Law Act . There is no independent concept of “residency” outside the provisions of s. 41(

b) which empower a guardian with parental responsibilities to make decisions respecting where the child will reside. As Ms. S. was not appointed as an interim or permanent guardian, the court could not cloak her with residential parenting time or parental responsibilities. Ss. 40 and 51 of the Family Law Act are intended to protect children and ensure that any putative caregivers are scrutinized by the court to ensure the child will be safe and that the proposed care arrangement is in the child’s best interests.

It is for that reason Rule 18.1 requires any non-presumed putative guardian file a Form 34 Affidavit attaching all requisite criminal record and MCFD checks, and that in the absence of that information, any interim guardianship order automatically expires in 90 days. These protective statutory provisions and informational requirements could not be circumvented by purporting to give Ms. S. so-called “residency” of J. by way of a Consent Order. [ 17 ] Given the provisions of the Family Law Act , I can only construe the “residency” provision set out in the October 8, 2015 Order as a statement affirming that Mr.

H. had authorized J. to temporarily reside with Ms. S. pursuant to the exercise of his parental responsibility to “make decisions with whom the child will live and associate” as set out in the Order of December 2, 2014. [ 18 ] As a non-guardian, Ms. S. could not legally assume parental responsibilities for J. other than those responsibilities delegated to her by Mr. H. while he was temporarily unable to exercise those responsibilities himself. Her authority effectively ended when Mr. H. requested J. be returned to his care.

In my view, while the October 8, 2015 Order was useful for the purpose of identifying to third parties that Ms. S. temporarily had authority to deal with matters concerning J., it alone did not and could not lawfully deprive Mr. H. of his parenting time or parental responsibilities as ordered on December 2, 2014. Regardless of whether or not Ms. S. thought the Order was valid, she was not entitled to rely on it as justification for keeping J. in circumstances where the parties had entered into the Consent Order on the basis that it was only intended to be in effect until Mr.

H. was able to resume care of J. [ 19 ] In December 2015, the RCMP and MCFD investigations concluded that the allegation against Mr. H. was unfounded and all restrictions upon him were removed. Ms. S. testified that the Ministry investigation concluded after “two - three weeks” and that Mr. H. simply made no efforts to collect his son after that. I find Ms. S.’s evidence on this point to be implausible. It would be remarkable for a sexual assault investigation to wrap up in two - three weeks. If the investigation had concluded in two - three weeks, it would have finished in the second half of September 2015.

The parties did not even obtain the Order for J. to live with Ms. S. until October 8, 2015. I accept Mr. H.’s and Ms. E.’s evidence that the MCFD investigation concluded and Mr. H. was approved to return home in December 2015. [ 20 ] I do not believe Ms. S.’s evidence that Mr. H. effectively abandoned J. and made no attempts to reunite with him after the MCFD investigation concluded. If that were so, there would have been no urgency for Ms. S. to file her application in January 2016, seeking guardianship and primary residence of J. I accept Mr.

H.’s evidence that as soon as the restrictions on him were lifted in December 2015, he communicated to Ms. S. that he and J. could return home, but he agreed to allow J. to stay with Ms. S. over Christmas at her request. [ 21 ] On January 6, 2016, Ms. S. filed an Application to Obtain an Order for sole guardianship and child support. Mr. H. filed his own cross-application for guardianship and child support. He also sought a protection order preventing Ms. H.’s partner, Mr. B., from having contact with J. I note that at the time, Mr.

H. was already a guardian by virtue of the Order of December 2, 2014, and further application was unnecessary. Mr. H. has been unrepresented throughout these proceedings. I understand what Mr. H. was seeking was to have J. return to his care, while Ms. S. was seeking to be appointed as a guardian and have J. live with her. [ 22 ] In my view, since legally Ms. S.’s only authority concerning J. could be that delegated to her by Mr. H., she had no authority to continue to keep J. and make decisions akin to an exercise of parental responsibilities once Mr. H. requested J.’s return. [ 23 ] Mr. and Ms.

H. made a first appearance on March 24, 2016, and their applications were ordered to be heard in conjunction with Ms. S.’s. Ms. S. retained counsel and the parties were all ordered to file any requisite Replies to each other’s pleadings. The matter was then adjourned to April 28, 2016, to fix a date for a family case conference. That conference was not scheduled to occur until September 2, 2016. [ 24 ] On February 19, 2016, Ms. H. filed a Reply and Counterclaim seeking guardianship, parenting time, parental responsibilities and child support. On March 15, 2016, Ms.

H. filed an application to change the December 2, 2014 Order to grant her sole guardianship. My understanding is that Ms. H. is not in a position to assume primary care of J. and is not pursuing that application. She adduced no evidence and made no submissions at this trial. [ 25 ] In the Family Case Conference on September 2, 2016, Mr. H. was granted reasonable parenting time in Prince George and was given parenting time on Thanksgiving weekend in [omitted for publication], for which he was to arrange and bear the cost of transportation.

The matter was then adjourned to the Judicial Case Manager to set another date for a further family case conference which ultimately was scheduled for December 15, 2016. [ 26 ] In the Family Case Conference on December 15, 2016, Mr. and Ms. H. and Ms. S. entered into an Interim Consent Order in which all three parties agreed to be interim guardians for J. At the time, Ms. S. had not filed an Affidavit in Form 34. Accordingly, by virtue of Rule 18.1(3) of the Family Law Act Rules , her interim guardianship of J. expired in March 2017. In my view, it was unnecessary to appoint Mr. and Ms.

H. as interim guardians of J. since they were already presumed guardians pursuant to the December

2, 2014 Order. [ 27 ] On January 9, 2017, the trial of this matter was finally set for two days commencing June 1, 2017. That trial proceeded and due to limitations on court time had to be set for continuation, with submissions completing August 25, 2017. Throughout what can only be described as a drawn out court process, J. has remained in the care of Ms. S. [ 28 ] Notwithstanding the state of the pleadings, I understand the issues to be whether or not Ms. S. should be made a guardian of J., apportionment of parenting or contact time for Ms. S. and Mr.

H., allocation of parental responsibilities and child support. Ms. S. wishes for J. to remain living with her in Prince George with reasonable parenting time to Mr. H., while Mr. H. wishes for J. to be returned to his care in [omitted for publication]. Both Ms. S. and Mr. H. have expressed their willingness to be generous in granting the other parenting or contact time, and historically these parties have been amicable and cooperative in their communications.

Unfortunately, both parties are of limited financial means so the physical distance between them will be an obstacle to facilitating generous contact or parenting time. [ 29 ] The only applications being dealt with in this trial, as augmented by submissions explaining the additional relief being sought by the parties (parenting time and responsibilities), were those filed in January, 2016. Ms. S.’s Notice of Motion seeking an order prohibiting J.’s relocation to [omitted for publication] was not before the court and no submissions were made on the provisions of ss. 46 or 65 of the Family Law Act .

As such, I have not considered the issue of whether or not Mr. H. should be or should have been permitted to relocate with J. to [omitted for publication] B.C. as contemplated under those provisions of the Act. [ 30 ] Mr. H. agrees with appointing Ms. S. as a guardian, scheduling her parenting time, and allocating parental responsibilities to her so that she may communicate with and obtain information from third parties about J. Ms. S. agrees to the same with respect to Mr. H. should J. be ordered to live with her. On June 2, 2017, Ms.

S. filed an Affidavit in Form 34 in support of her application for guardianship. I find nothing in the requisite checks which raises concerns about her ability to care for J. EVIDENCE [ 31 ] Ms. S. is 56 years old. She works supervising cleaners at a local casino from 6 p.m. to 2 a.m. Her husband, age 59, is now retired and suffers from a heart condition which contributed to a heart attack in 2013. Otherwise, Ms. S. claims she and her husband are of good health. [ 32 ] J. has now been in Ms. S.’s primary care since October of 2015. Ms.

S. testified that she enrolled J. in Kindergarten in 2016 and his report cards show he is doing well at school. Ms. S. lives with J. and her husband, M.S., in a mobile home in Prince George. Ms. S. explained that if J. is ordered to live with her, she intends to renovate the laundry room and porch area of the mobile home to create a bedroom for J. [ 33 ] Ms. H. exercises supervised parenting time with J. for around two hours, three-four times a month at Ms. S.’s house. [ 34 ] Ms. S.’s mother-in-law through her former husband, H.S., and Ms. S.(2)’s daughter and grandchildren live in Prince George.

J.’s paternal grandfather and uncle also live in Prince George. Ms. S. says she and J. visit Ms. S.(2)’s family around once a week. Ms. S. sometimes arranges for visits with Mr. H.s’ side of the family. J. used to visit Mr. H.’s mother, D., but she has recently passed away. [ 35 ] Ms. S. says she has no concerns about Mr. H. as a parent. Ms. S. fairly admitted she has some concerns about her daughter’s ability to parent and feels Ms. H. does not pay as much attention to J. as she should. [ 36 ] Ms. S. expressed concern that Mr. H. has had limited contact with J. since J. has been in her care. Mr.

H. has not phoned regularly to talk to J. At first, Ms. S. claimed Mr. H. has had no contact with J. since 2015, however, after some guidance from her counsel, Ms. S. acknowledged there had been a number of phone calls and visits since that time. According to Ms. S., Mr. H. visited J. at his (now deceased) mother’s residence in December 2015. When Mr. H. is in Prince George he calls and asks to visit J. which Ms. S. generally facilitates. Other than the one time, Mr. H. did not visit J. between December 2015 and June 2016 but he did call J. on the phone. [ 37 ] In June 2016, Mr.

H. attended a birthday party at his mother’s residence with J. in Prince George. Mr. H. also visited J. a couple of more times in Prince George when he had to be in town to attend court. He did not come and visit J. at Christmas in 2016, but he did call and he saw J. in December 2016, in conjunction with a scheduled Family Case Conference. He was supposed to visit J. at Thanksgiving but ultimately cancelled. Mr. H. explained this was because he obtained a week’s worth of farm work at the last minute. Ms. S. says Mr. H. did not call J. on his birthday in June 2017, and did not give him a present.

He has not given Ms. S. any money for child support. [ 38 ] When asked by her counsel if J. had mentioned anything to her about wanting to live with his father, Ms. S. denied any such statements having been made to her. I observed a distinct change in her demeanour when answering this question and she appeared uncomfortable. [ 39 ] Ms. S. explained that she decided to file for guardianship of J. in January 2016, because when she first collected J. he was very quiet and did not like to hug. Over time J. became more talkative and affectionate. She appears to attribute that change solely to J. being her care. Ms.

S. also expressed concerned that if J. were to reside with Mr. H. he would get less attention due to Mr. H. having two other children to care for, namely, J.’s brothers. J.’s older brother, J.(2), has cerebral palsy and is confined to a wheelchair and therefore requires additional care. Ms. S.’s view is that it is in the best interests of J. to stay with her because he gets more attention from his caregivers being the only child in the house. [ 40 ] Ms. S. says that if J. is returned to Mr. H. she would like to have contact time one long weekend a month, holiday time, and regular telephone contact.

She said that if J. lived with her, she would be willing to drive J. to [omitted for publication] in order for Mr. H. to exercise parenting time provided Mr. H. paid for gas. [ 41 ] M.S., Ms. S.’s husband, testified that he acts a co-caregiver for J. He looks after J. when Ms. S. works and takes J. to and from

school. Mr. S. testified that he and Ms. S. went to get J. because Mr. H. came over and asked if they would take him because Ms. E. was alone with the two other boys who were a handful. He says there was no mention of the RCMP or MCFD investigation. As stated earlier, Mr. S.’s evidence about the circumstances in which J. came to live with him and Ms. S. is inconsistent with that of all the other witnesses - including Ms. S. - and I do not find it to be accurate. [ 42 ] Mr. S. says that since living with them, J. is doing “pretty good” and that he was pretty quiet before.

He recalled two overnight visits between Mr. H. and J. which took place at Mr. H.’s mother’s house in Prince George and a few phone calls. He says J. talks about his brothers “not much.” Mr. S. expects the parties to share the expense of facilitating visits if J. was returned to Mr. H.’s care in [omitted for publication]. [ 43 ] H.S.(2) also gave evidence on behalf of Ms. S. She is 70 years old and is the mother of Ms. S.’s former husband. She sees J. and her grandchildren around once a week. Ms. S.(2) said that when J. first started coming over to her house he was quiet and shy but now he likes to hug and kiss.

According to Ms. S.(2), J. never mentions his father or brothers. He likes to play with other children when he visits. In cross-examination, Ms. S.(2) admitted she does not want J. to move to [omitted for publication] because everyone will miss him. [ 44 ] Mr. H. called his father and brother as witnesses. They generally observed J. and Mr. H. to have a good relationship. [ 45 ] Mr. H. testified that after his relationship with Ms. H. ended he moved with J. into his parents’ house in Prince George.

He did so, in part, because he worked graveyard shifts and his parents were home at night to care for J. while he was at work. During this time, Mr. H. still acted as J.’s primary caregiver, took J. to all his appointments and, in Mr. H.s’ words, “did all the work parenting him.” [ 46 ] Mr. H. confirmed that J. went to live with Ms. S. in 2015, after he had to move to Prince George due to the abuse allegations that led to MCFD involvement. MCFD told Mr. H. he could not live in a residence with children until the investigation was complete. He could only have telephone contact.

The arrangement was that J. would live with Ms. S. until Mr. H. was allowed to move back home, at which time, Mr. H. would bring J. back to [omitted for publication] with him. He lived with his parents in Prince George until he was cleared by MCFD to return home to [omitted for publication] in December 2015. [ 47 ] Mr. H. testified that he had a great relationship with his son and they had always lived together. When they moved to [omitted for publication] J. enjoyed himself, made a lot of friends, played well with his brother R. and always “wanted to be out there.” His spouse, S.E., treats J. as her own child.

According to Mr. H., J. recently had a lengthy visit in [omitted for publication] over the summer which ended early at J.’s request because of conflicts between J. and his brother. Mr. H. understands the root of the problem to be that J. is unaccustomed to not being the only child. [ 48 ] Mr. H. says that J. always asks when his father will be taking him home to [omitted for publication]. A couple of days before the June 1 st trial date, J. spent a couple of nights with Mr. H., Ms. E., and his brothers in Prince George. J. asked “when are we going home” and Mr. H. explained that he, Ms.

E., and J.’s brothers were going home on the Sunday. J. asked when his Dad was taking him home and Mr. H. explained he could not come home with them. J. appeared sad at being told he would not be going home with the rest of his family. [ 49 ] Mr. H. lives in a four bedroom townhouse in [omitted for publication] where J. would have his own room. The home is in a quiet child oriented neighbourhood where the neighbours all look out for one another. It is a five minute walk from the local elementary school which J. would attend with his brothers. There is a park down the street and the family has several pets. Ms.

E.’s family lives in [omitted for publication] and has horses and other farm animals. [ 50 ] Mr. H. works as a labourer in a nursery, generally earning around $12 per hour. His work is seasonal. When he is working Mr. H. takes home around $450 per week. When collecting Employment Insurance, Mr. H. takes home around $1,200 per month. When collecting social assistance, he collects $390 per month. Mr. H. testified that Ms. S. has not asked him for money to help support J. He has a birthday gift for J. but has not been able to get it to him. [ 51 ] Mr. H. advised that he did not have a car until recently.

He did not have his driver’s license for a long while due to driving fines and he only got it back around one month before trial. I understand that Mr. H.’s ability to travel from [omitted for publication] to Prince George over the past couple of years was significantly impeded by his lack of access to transportation and the requisite funds. [ 52 ] Pursuant to the August 20, 2015 Order, Ms. H. was given parenting time with J. every weekend to be supervised by Ms. S., who was to be present for the pickup and return of J. in [omitted for publication]. Mr. H. testified that Ms.

S. only travelled to [omitted for publication] twice to facilitate these supervised visits. On other weekends, Ms. S. said she could not come to [omitted for publication] either because she had to work or her car did not work well enough for the trip. Based on the evidence of Mr. H. and Ms. S. detailing the visits Mr. H. has had with J. since he has been in her care, I find Ms. S. has never transported J. to [omitted for publication] to facilitate visits between J. and his father or brothers. [ 53 ] Mr. H. says that while J. has been living in Prince George, he has called a couple of times a week.

There were around six - seven times when he has called and no one picked up the phone at Ms. S.’s house so they did not connect. [ 54 ] Mr. H. provided information to the court about J.’s background which I would characterize as showing a pattern of withdrawal behaviour in response to transition, change, or stress. When he and Ms. H. were together he noticed J. to be very quiet so Mr. H. enrolled J. in the Sunbeams Program through the Child Development Centre. Mr. H. observed that after he and Ms. H. separated and more time passed with J. in his sole care, J. got more and more talkative. Mr.

H. was told that J.’s timid behaviour around new people may be a response developed as a result of trauma which Mr. H. says was experienced at the hands of J.’s mother who would yell and scream at J. as an infant. Mr. H. also observed that when J. first started day care he was quiet but after a couple of months he had opened up a lot and was talking and acting naturally. [ 55 ] Mr. H.’s evidence on this point is confirmed by his spouse, S.E., who testified that when J. first moved in with her and his brothers, J. was not talking that much but started to improve in the months he was with them.

She also observed that with the passage of

time J. talked more and more at day care and increasingly got along with the other children there. [ 56 ] Ms. E. recalled that she and Mr. H. started living together in [omitted for publication] in August 2015, before the children went back to school. After a month, the RCMP came and advised of the sexual abuse allegation and Mr. H. had to move out of the residence. He went to Prince George to live with his parents and returned in December 2015. [ 57 ] According to Ms. E., after Mr. H. left due to the MCFD investigation she had care of all three boys. After around two months Ms. S. contacted Ms.

E. and said that Ms. E. should not be caring for J. because she was not technically his guardian. They agreed Ms. S. could pick up J. and J. would return home with his father when the Ministry investigation was resolved. Ms. E. told Ms. S. they would let her know as soon as the file was closed and Mr. H. was able to come home. At that time they were waiting for Mr. H. to take a lie detector test. [ 58 ] Ms. E. testified that J. has a good relationship with his brothers and there would be no problem taking care of all three boys if he returned home. Ms.

E. says that despite his disability, J.(2) is not as much work as people say he is. He is a happy child and does not need that much medical care. [ 59 ] The family does not have much money but there are many activities they can do for free, such as swimming, camping, and horseback riding at her parents’ home. According to Ms. E., if J. were to come home his brother, R., would be over the moon as he has been asking after his brother since J. left two years ago. [ 60 ] Ms. E. explained that she and Mr.

H. would like to have come to Prince George more often to visit J. but it was too expensive to travel given there is no public transit between these communities. Mr. H. works seasonally and collects social assistance. Ms. E. relies on the child tax credit, disability payments, and social assistance. Mr. H. has a cell phone but he often does not have minutes on it. Ms. E. will sometimes come to Prince George for J.(2)’s medical appointments but the funding agencies only pay for her to bring J.(2) because she was identified as his primary caregiver from the time she and Mr. H. were separated.

When she brings J.(2) to town Mr. H. stays home and looks after R. ISSUES [ 61 ] The issues to be decided in this proceeding are: 1. Should Ms. S. be appointed as a guardian? 2. If so, how should parenting time and responsibilities be allocated? 3. If so, what child support ought to be paid as between the guardians? 1. Should Ms. S. be appointed as a guardian of J.? [ 62 ] Ms. S. seeks to be appointed as a guardian pursuant to s. 51 of the Family Law Act which states, in part: 51

(1) On application, a court may (

a) appoint a person as a child's guardian…

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in

section 37 [best interests of child] of this Act. (3) Subsection (2) of this

section applies regardless of whether there is consent to the application under

section 219 [persons may consent to order being made] . [ 63 ] Pursuant to Rule 18.1, a non-presumed guardian is required to file an Affidavit in Form 34, which Ms. S. has filed in this case. It shows no history of involvement with the RCMP, MCFD, or Protection Order Registry which raises concern for the court. [ 64 ] The best interests of the child is the guiding consideration both in the guardianship application and the applications for parenting time and the allocation of parental responsibilities. The relevant considerations to that analysis are set out in s. 37 of the Act , which states as follows: 37

(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; … (

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. [ 65 ] Ms. S. has been the primary caregiver for J. for the past two years. She is bonded to J. and has been a constant figure in J.’s life since he was born. She has acted as a supervisor so J. could maintain a relationship with his mother, and she has worked to maintain relationships between J. and his extended family. Ms. S. has born the costs of his care since October 2015. Ms.

S. has been cooperative in allowing Mr. H. telephone and in-person parenting time with J. as the parties’ circumstances permitted. Mr. H. does not contest her appointment as a guardian and I am advised Ms. H. also supports that application. In all of the circumstances, I find it is in J.’s best interests to appoint Ms. S. as a guardian pursuant to s. 51(1)(

a) of the Family Law Act. 2. How should parenting time and responsibilities be allocated? [ 66 ] This is a more contentious issue. Given the physical distance between Mr. H. and Ms. S., a shared parenting

schedule or equal sharing of parental responsibilities is not appropriate. Whomever J. lives with will exercise the majority of parenting time and day-to-day parental responsibilities concerning J. [ 67 ] Again the paramount consideration is the best interests of the child as set out in s. 37 of the Family Law Act. (

a) the child's health and emotional well-being [ 68 ] Ms. S. states that the main reason she kept J. and sought guardianship was because he was quiet and unaffectionate when he first came to live with her and became less so with the passage of time. Ms. S. attributes that change to the positive effects of her nurturing and care. In my view, there is scant evidence to support that causal relationship. Ms. S. has adduced no expert or other evidence to support the conclusion that J. was a withdrawn child who she alone brought out of his shell. To the contrary, Mr.

H. describes J. as being a more talkative and “normal” child in his care as time passed from his separation from Ms. H. As she did not have an opportunity to observe J.’s day-to-day behaviour in [omitted for publication], Ms. S. was not in a positon to form an opinion about whether or not J. was ordinarily withdrawn in his father’s care. Both Mr. H.’s and Ms.

E.’s evidence reveals that J. historically responded to being placed in new environments by acting silent and withdrawn, eventually opening up as he became more familiar with new people and surroundings. [ 69 ] Until September 2015, J. had lived with his father his entire life. Due to the intervention of the Director of MCFD, J.’s father was suddenly forced to leave him. J. was then moved from his home in [omitted for publication] to live with Ms. S. This would be a potentially traumatic change for any four year old. It is not surprising that J. would arrive at Ms.

S.’s home guarded and withdrawn, especially given his history of reacting to change in that exact fashion. Consistent with his pattern, J. may have eventually relaxed and opened up to Ms. S. upon increased familiarity with his new environment. What Ms. S. most likely observed was J. arriving at her home stressed from being uprooted and separated from his father and returning to normal with the passage of time. [ 70 ] Similarly, given J.’s history of being guarded around new people or places, it is not surprising that he would appear standoffish to Ms.

S.(2) when he first started going to her house for weekly visits, and that he became less so with increased familiarity and weekly visits. [ 71 ] The fact that J. is more talkative now than he was in 2015 may be attributable to the fact that there is usually a significant change in children’s verbal output between the ages of four and six years. I cannot find that J.’s improvements in this regard are a function of Ms. S.’s care as opposed to the ordinary processes of maturity. [ 72 ] In short, I am not satisfied on the evidence that the changes in behaviour observed by Ms.

S. are a reflection of her being a superior caregiver to J. or of J. being happier in her care than with his father. I find it most likely that had J. remained in his father’s care he would be, at minimum, at the same level of development as he is now. [ 73 ] Ms. S. also asserts that J. should remain with her because Mr. H. might neglect J. in favour of his other sons, particularly J.(2) who is disabled. Ms. S. offered no evidence of any actual neglect other than her belief that this might happen. There is no evidence J. ever made that complaint. Mr. H. testified he agreed Ms.

S. could look after J., in part, because he was out of the home and unable to assist Ms. E. who was home alone with the other boys. That is not evidence that if Mr. H. were home, J. would be neglected. I note that Mr. H. moved back with Ms. E. and the other boys with J. for a month before the MCFD action and Ms. S. made no complaint at that time about J. potentially being neglected.

There is no evidence to support the contention that J. would suffer emotionally from receiving less love and attention if he returned to his father’s care. [ 74 ] I have concerns about the potential psychological and emotional impact on J. if he is not returned to his father’s care. He has already been separated from his mother and sees her only briefly a few times a month despite having lived in the same city for two years. He was very close to his father and lived with him until the unfortunate events of the fall 2015, which separated J. from his remaining parent.

[75] As J. becomes older it may become apparent to him that his mother has, in essence, chosen her new partner over him. J.’squeries of his father about coming home with “them”, the family, suggests he is already cognizant that there is a family unit whichincludes his father and brothers from which he may feel increasingly excluded. In the long term, J.’s psychological and emotional well-being may be negatively impacted from the perception that both parents are alive, healthy, stable and able to care for him, but unlike hispeers, neither parent is raising him.

I am concerned about the potential emotional impact on J. of watching both parents carrying on liveswith new partners and his siblings effectively without him. [76] J. has done well in Kindergarten, but I note that until October 2015, J. lived with his father. I cannot say that J.’s success inKindergarten is due solely to Ms. S.’s influence rather than his father’s, or a combination of both. In my view, J.’s emotional health andwell-being would not be negatively impacted by returning him to [omitted for publication] to attend school there.

While there may besome stress at first from being moved to a new environment, I expect J., with the support of his father and brothers, will readily transitionwith the passage of time and increased familiarity with his restored living situation. (

b) the child's views, unless it would be inappropriate to consider them [77] While no S. 211 Report has been ordered, I accept Mr. H.’s evidence that J. is always asking when he can come home to livewith his father and brothers. I find Mr. and Ms. S.’s evidence that J. never mentions his father or brothers to be troubling. I wouldexpect a child in J.’s circumstances to mention his father and brothers from time to time - if even to relay stories of things they did ortalked about during visits. In my view, either Mr. and Ms.

S. are not being forthright about this subject in an effort to downplay J.’saffections for his father and brothers, or J. finds the separation so painful that, consistent with his penchant to be silent when stressed, hedoes not talk about them at all. [78] Given J.’s age, his views are not a compelling factor in this analysis. However, I take into account that J. has not expressed anyreluctance to return to his father’s care and, in fact, has made statements consistent with a desire to return. (

c) the nature and strength of the relationships between the child and significant persons in the child's life [79] Until September 2015, J. always lived with his father and I accept the evidence of Mr. H. and his witnesses that he and J. have astrong relationship. When Mr. and Ms. H. separated, J. went to live with his father. I also accept that J. has a good relationship with Ms.E. and is close to his brothers. [80] J. has a good relationship with Ms. S. Ms. S. visited with J. almost every weekend both before and after Mr. and Ms.

H.separated, and J. has lived with her for the past two years. [81] J.’s mother is also a significant person in J.’s life. However, for the past three years, Ms. H. has only spent time with J. at Ms.S.’s house exercising supervised visits. According to Ms. S., these visits are only for around two hours and occur only three - four timesper month and she does not perceive Ms. H. to pay enough attention to J. Ms. S. candidly admits that she does not believe her daughter isready to parent J. [82] J. also has relationships with Ms. S.’s ex-husband’s mother, Ms. S.(2) and her children and grandchildren.

These persons live inPrince George and Ms. S. says she will continue to visit with them if J. remains here. J.’s grandmother, Mr. H.’s mother, recently passedaway and only Mr. H.’s father and brother live in Prince George. From Ms. S.’s evidence, those visits with Mr. H.’s side of the familywere not frequent and historically were more focused on visiting Mr. H.’s mother, who has now passed. [83] The greatest challenge to the maintenance of J.’s relationships with significant people in his life is the 300 km distance between[omitted for publication] and Prince George. Both Ms. S. and Mr.

H. work and are of limited financial means which impedes theirability to frequently and readily transport J. between communities. The reality is that wherever J. is ordered to live, he will necessarilysee the persons residing in the other community less often than would be ideal. [84] While clearly the father and son bond is an important and relevant consideration, there is no legal presumption in favour of Mr.H. solely because he is J.’s father. In M.S. v. G.S., 2013 BCSC 1744, Jenkins J. held at para. 84: [84] I have in mind several decisions of our courts, including Chapman v. Chapman, (BC SC), [1993] B.C.J.

No.316 (S.C.), D.W.M. v. J.S.M. et al, 2003 BCSC 1229, and J.B.E. v. F.S.L., 2004 BCSC 1511. Each of these cases stand for theproposition that all things being equal, children belong with their parent, as opposed to others seeking guardianship (formerly custody). This proposition likely no longer applies as it does not accord with the fundamental concept of the FLA that the best interests of thechildren are the only consideration. Preferring a parent is presumably a consideration of the parent's interests.

Therefore, the authoritiesreferred to above, and others like them, would not result in a decision in full accord with the best interests of the children as conceived bythe FLA. [85] While there is no legal presumption in favour of a parent under the now outdated rubric of “parental rights,” the special bondbetween an involved parent and a child, viewed from the child’s perspective, is still an important factor when assessing the significantrelationships in a child’s life and their best interests.

The Child, Family and Community Service Act, which also identifies the bestinterests of the child as a paramount consideration, states as a guiding principle that "a family is the preferred environment for the careand upbringing of children and the responsibility for the protection of children rests primarily with the parents." Pursuant to s. 4(1)(

d) ofthat same Act, it is a statutorily enshrined principle that the "best interests of the child" includes, as a relevant factor, consideration of the"the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship." [86] While Ms. S.'s application is brought under the FLA, not the CFCSA, it cannot be ignored that the only reason she came to haveJ. in her care was because of the Director's exercise of his authority under CFCSA.

Given both Acts address the care of children andespouse “the best interests of the child” as paramount principles, they cannot be interpreted in a manner which is philosophicallyinconsistent. The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an

interpretationwhich results in conflict should be eschewed unless it is unavoidable (Lévis (City) v. Fraternité des policiers de Lévis Inc., [2007] 1 SCR591, 2007 SCC 14).

[ 87 ] In this case, when child protection concerns arose which impeded his ability to care for J., Mr. H. chose to address them by consenting to place J. in the temporary care of Ms. S. under the Family Law Act pursuant to his authority to delegate his parental responsibilities. It is ironic that if Mr. H. had instead forced the Director to remove J. and place him in the custody of the Director under the care of Ms. S. under a temporary custody order, J. would have been returned to Mr.

H.'s care at the conclusion of the MCFD investigation. [ 88 ] In my view, construing the FLA and CFCSA together, the relationship between a child and their parent does not diminish only because a parent becomes unable to temporarily care for their child due to intervening events.

That parent-child bond should not be readily subordinated to a rigid principle of favouring preservation of the status quo where a non-guardian is assuming temporary care of a child. [ 89 ] I am concerned about J.’s ability to preserve his relationship with this father and build relationships with his brothers if he continues to live with Ms. S. in Prince George. While Ms. S. told the court she would be willing to make the drive to [omitted for publication] for J. to see his father, the reality is that simply did not happen in the last two years.

Even when she was required to drive to [omitted for publication] for the benefit of facilitating her daughter’s weekend parenting time with J., Ms. S. did not regularly make that trip. Historically, the onus was put solely on Mr. H. to call or come see J. in Prince George even though he has two other young children to care for, limited funds for transport, and seasonal employment. According to Mr. H., Ms. S. often cited car issues or work as a reason for not driving to [omitted for publication] to collect J. for Ms. H.’s supervised visits. There is no evidence before me that Ms. S.’s car or work

schedule has changed such that these would no longer be impediments to her travel. [ 90 ] I do not believe if the court were to order J. live with Ms. S. that she would substantially comply with an order to drive J. to [omitted for publication] for Mr. H.’s parenting time so that J.’s significant relationships with his father and brothers could be preserved. Ms. S. did not comply with the agreement to return J. to his father upon request. Mr. H. has travelled to Prince George several times over the last two years to see J. despite having no vehicle or license for all or part of this time period. Ms.

S. has never taken J. to [omitted for publication]. Mr. H. now has his vehicle and license. It is more likely that Mr. H. will comply with an order to bring J. to Prince George to visit Ms. S. than for Ms. S. to bring J. to [omitted for publication]. I accept that Mr. H. and Ms. E. already have cause to come to Prince George from time to time for shopping and medical appointments which would provide for additional opportunities for J. to see his grandmother, mother, and Ms. S.(2). [ 91 ] It was agreed that at the last lengthy summer visit J. had conflicts with one of his brothers and called Ms.

S. to come collect him early. I do not view that event as militating against J. being in his father’s care. Siblings have conflict; that is inevitable. Having been the only child for the past two years J. has not been motivated to learn to share, negotiate, and manage the needs and demands of another sibling. I would expect such skills will develop as J. spends more time with his brothers. [ 92 ] While J.’s experience over the summer shows that living with siblings can sometimes be challenging, it can also be rewarding and contribute to a child’s sense of security and protection. Ms.

S. argues that J. should live with her because if he lives with Mr. H. he will have to compete for attention with his older disabled brother J.(2). I am concerned Ms. S. sometimes demonstrates a lack of respect for J.’s relationships with anyone other than herself and her family circle. J.(2) is not a source of competition for J., he is J.’s brother with whom J. can bond, love, and feel loved. Understanding and tending to J.(2)’s special needs can enrich J.’s life experience and bestow upon him valuable life lessons about caring and empathy. (

d) the history of the child's care [ 93 ] For most of J.’s life he has been in the care of his father. For his first three years he lived with his mother and father. After his parents separated, J. lived with his father, then with his father and Ms. E. He did not go to live with Ms. S. until he was four years old. It is important to consider that J. did not go to live with Ms. S. because Mr. H. was unwilling to care for his son; rather it was due to the unfortunate intervention of the Director for MCFD following abuse allegations which turned out to be unsubstantiated.

Had such unsupported allegations not been made, J. would have continued to live with his father in [omitted for publication]. The transfer of J. to Ms. S.’s care was intended to be a temporary arrangement pending the completion of the MCFD and RCMP investigations. [ 94 ] Rather than returning J. as agreed, Ms. S. decided to keep him. As set out above, in my view her ability to care for J. as a non- guardian was circumscribed by s. 43 of the Family Law Act and her authority to exercise parental responsibilities ended when Mr. H. requested J.’s return.

J. was transferred to her care under the express agreement that he would come home with his father when his father was cleared by MCFD. Ms. S. should have returned J. and made this application, not kept him. [ 95 ] Ms. S.’s purported reasons for keeping J. - that she felt he had become more talkative - did not justify her actions. She was not J.’s parent or regular primary caregiver. She had no medical or professional opinions to support her purported self-serving belief that J. was somehow happier in her care.

If she truly was concerned about J. being as withdrawn or anxious as she claimed, I would have expected her to have discussed those issues with J.’s primary caregiver - Mr. H., informed herself of J.’s background, and potentially sought professional help. There is no evidence to suggest she made any such inquiries or efforts. Perhaps if she had contacted Mr. H., she would have learned that J. had demonstrated a tendency to be withdrawn when transitioned to new places. Ms. S. also cited as a reason for keeping J. that she thought J. would get neglected if he went back to his father because Mr.

H. would also have to look after J.’s brothers, one of whom is disabled. However, Ms. S. made no inquiries of Ms. E. or Mr. H. in connection with those concerns. [ 96 ] It is hard to put any weight on Ms. S.’s evidence that she kept J. because she was concerned about his being non-talkative or neglected under his father’s care when she took no action and made no inquiries consistent with that purported belief at the time. When Ms. S. first assumed care of J. she had an extant court application filed July 6, 2015, seeking an order prohibiting J.’s relocation to [omitted for publication].

In her supporting Affidavit to that application, Ms. S. complained that Mr. H. was putting her “grandparental rights” in jeopardy and that she would like to have full custody of J. until her daughter was “ready” to parent. I find the primary reason Ms. S. kept J. was not because she had genuine concerns about J.’s well-being in his father’s care, but because she wanted to prevent J.’s relocation to [omitted for publication], she wanted to preserve her “grandparental rights”, and she wanted to assume “full custody” of J.

She sought to accomplish this by simply keeping J. as if he were a possession, then forcing Mr. H. to go through the court process to restore what was J.’s status quo for most of his life.

[ 97 ] There was no suggestion that J. was at risk physically, emotionally, or psychologically if returned to his father’s care. In my view, Ms. S.’s actions demonstrated a selfish disregard for J.’s best interests. There is no evidence that she turned her mind to the effect her actions would have on J. and his psychological well-being. She did not consider how J.’s ability to feel secure, trust, and attach to caregivers may be significantly impacted by being permanently separated from his primary caregiver. While she has had care of J. for the past two years, she should not have had had J. in her care after December 2015. (

e) the child's need for stability, given the child's age and stage of development [ 98 ] Both Ms. S. and Mr. H. can provide J. a stable home life when he is in their care. Both parties have spouses who are able to provide short term care or transportation when the primary caregiver is at work. [ 99 ] Prior to Ms. S.’s intervention, Mr. H. was a stable figure in J.’s life. While he has now spent the last two years in Ms. S.’s care, J. is still young and should readily transition back to living with his father. Mr. H. has lived in [omitted for publication] with Ms.

E. for over two years now and their living and family situation is stable. J. lived in [omitted for publication] with Ms. E. and his brothers prior to residing with Ms. S. and that living arrangement will not be entirely strange or unfamiliar to him. (

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 [ 100 ] Both Ms. S. and Mr. H. are capable of exercising their parental responsibilities and parenting time with J. [ 101 ] Ms. S. has raised concerns about Mr. H. failing to maintain contact with J. as much as he should while J. has been in her care. I do not find this argument to be compelling in terms of assessing Mr.

H.’s ability to exercise his parental responsibilities or parenting time. [ 102 ] First of all, this complaint cannot be viewed in isolation from the fact that, in my view, Ms. S. should not have kept J. after December 2015, and put Mr. H. in the position of having to maintain his relationship with J. from a distance in circumstances where he was impecunious with limited transportation options. [ 103 ] I also have difficulty with some of Ms. S.’s evidence which I find was intended to portray Mr. H. as being lax in his efforts to maintain contact with his son. For example, Ms.

S. testified that the RCMP and MCDF investigations were cleared up in two - three weeks, which would have been September 2015, and that Mr. H. simply made no efforts to have J. returned to his care until she filed for guardianship in January 2016. As stated earlier, I find this to be implausible and inconsistent with the other evidence. [ 104 ] At first, Ms. S. testified that Mr. H. had no contact with J. since 2015, then changed her evidence following more specific questions from her counsel which revealed that, in fact, Mr. H. had been in personal and telephone contact with J. since 2015. When Ms.

S.’s counsel asked her if Mr. H. visited J. in conjunction with the Family Case Conference scheduled for December 15, 2016, she said he did not show up and did not visit. When confronted with the Court Record showing Mr. H. had attended the FCC, Ms. S. changed her evidence and qualified that he did have a visit with J. but “did not ask for extra time.” [ 105 ] It was suggested that Mr. H. could have visited more or been the one to take J. to his Prince George appointments to have more opportunities to come to town. I accept Mr. H.’s evidence about his limited financial means to travel. I also accept his and Ms.

E.’s evidence that she is the one who has medical funding to accompany J.(2) to his appointments so it is appropriate that she make the trips to Prince George. [ 106 ] It is very difficult to assess a parent’s level of commitment to their child by measuring the number of times they come to visit when, as the case is here, the parent is of very limited financial means and simply cannot afford the cost of facilitating those visits. Mr. H. also did not have a driver’s license or a vehicle for all or part of this period which further impeded his ability to travel to Prince George to see J.

There is no evidence that Ms. S. offered to assume any costs or responsibility for taking J. to [omitted for publication], or that Mr. H. was refusing those opportunities to visit. The visits between Mr. H. and J. in Prince George generally took place at Mr. H.’s mother’s house as Mr. H. has no local residence here for those visits to occur. [ 107 ] It is Ms. S. who created the impediments to Mr. H. exercising parenting time with his son by keeping J. in Prince George without authority, then requiring that if Mr. H. wanted to see his son, Mr. H. had to come to them.

In these circumstances, it is difficult to accept Ms. S.’s argument that I should construe Mr. H.’s failure to visit more often as a sign he is not a committed parent. I find that Mr. H. did make efforts to visit his son when he could afford to travel to Prince George and was committed to maintaining that relationship. [ 108 ] Ms. S. also argues that if J. were to live with his father it is really Ms. E. who would be the primary caregiver and that Mr. H. would shift the responsibility of caring for J. on her. First, I find that submission to be unsupported by the evidence.

The evidence shows that, in fact, it has been Mr. H. who has assumed primary care of J. since his separation from Ms. H. He lived with J. for a year without any female partner assisting in J.’s care. It was argued in submissions that Mr. H.’s parents were performing the bulk of his parental responsibilities during that time, but again there was no evidence to support that submission, and that contention was not put to either Mr. H. or his father in cross-examination. I accept Mr.

H.’s submission that he did all the “parenting work” when he lived at his parent’s place with J., and he lived there, in part, because it provided him with built in caregivers when he worked graveyard shifts. Given J. would have been sleeping, that would not have required his parents to perform much in the way of exercising parenting responsibilities. [ 109 ] There is no evidence that Ms. E. will have to assume primary care for J. due to Mr. H.’s employment

schedule or other commitments. I find no logical connection between the notion that because Ms. E. assumes the majority of unique responsibilities for caring for J. I should infer that Ms. E. will necessarily assume the lion’s share of caring for J. That did not happen historically. According to Ms. E., when she has to bring J.(2) to Prince George for his medical appointments, Mr. H. stays home to look after R. The only time Ms. E. took on a disproportionate degree of care for J. was when Mr. H. was prohibited from caring for J. himself by MCFD. I do not consider that to be evidence consistent with an intention by Mr. H. to offload his parental responsibilities on to Ms. E.

[ 110 ] By contrast, the evidence shows that Ms. S. relies quite extensively on her spouse, M.S., to exercise her parental responsibilities. She works from 6 p.m. to 2 a.m. It is Mr. S. who primarily drops off and picks up J. from school, Mr. S. who looks after J. in the evenings after school, and Mr. S. who takes J. to activities like the park. I do not find any merit in the submission that J. would be better off in Ms. S.’s care because if he moves to [omitted for publication] he will be primarily cared for by a non-parent, being Ms. E. (

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 [ 111 ] I do not have any concerns about the ability of the parties to cooperate in matters concerning J. There is no evidence before me that Ms. S. has refused Mr. H. parenting time with J. when requested, or that the parties have disagreed about matters concerning J.’s health, well-being, or education. (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being [ 112 ] In this case while there is no other formal civil proceeding, there was intervention by the Director for MCFD concerning Ms. H.’s access to J., particularly, the potential for J. to be exposed to her fiancé, Mr. B. Based on the letter adduced into evidence by Ms. S., I understand that MCFD is longer involved in any plan which would require Ms. H.’s visits with J. be supervised. Ms. S. testified that she continues with that regime to honour Mr. H.’s request that Mr. B. not be allowed around his son.

As such, that protective supervisory requirement is at Ms. S.’s pleasure. [ 113 ] I have some concerns about Ms. S.’s stated commitment to ensuring that J. is not exposed to Ms. H.’s partner. Mr. and Ms. S. were adamant that they always supervise Ms. H.’s visits to ensure Mr. B. is never allowed around J. because they understood the importance of keeping him safe, yet, Ms. S. could tell the court few details about Mr. B.’s past convictions other than she thought his victim was 14. I would expect someone in Ms. S.’s position to exercise more diligence in assessing the threat posed by Ms.

H.’s partner; however, this has not been a dominant factor in my analysis. How Should Parenting Time and Parental Responsibilities be Allocated? [ 114 ] Applying the criteria set out in s. 37 of the Family Law Act as set out above, I find that it is in J.’s best interests he be returned to his father’s care. [ 115 ] In order to preserve the relationship between J. and Ms. S., Ms. H. and extended family in Prince George, parenting time should be allocated to Ms. S. during holidays and long weekends in accordance with an agreed schedule. [ 116 ] Given the distance between them and Ms.

S.’s conduct in keeping J. without permission, I do not believe it is in J.’s best interests to allocate Ms. S. any parental responsibilities beyond the right to be informed of his progress and obtain information from third parties such as his school or medical professionals to keep apprised of his progress. I will order that Ms. S. provide Mr. H. with all documents, identity cards, and reports, concerning J. CHILD SUPPORT [ 117 ] Mr. H. has sought child support from Ms. H. but she did not participate in this trial and I did not approach the issues on the basis that I would be determining that issue. Mr.

H. did not appear to seek child support from Ms. S. I will leave both issues to Mr. H. to pursue in a separate hearing or application if he so chooses. [ 118 ] I will hear further submissions on parenting time. ____________________________ C. P. Malfair Provincial Court Judge Province of British Columbia