N.A.H. v. T.D.H. and D.M. Date:, 2018 BCPC 36

Citation: N.A.H. v. T.D.H. and D.M. Date: 20180207 2018 BCPC 36 File No: 16741 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.A.H. APPLICANT AND: T.D.H. and D.M. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: N.A.H. Counsel for the Respondent: Ms. Natalie Hebert

Place of Hearing: Kamloops , B.C. Dates of Hearing: January 16 - 18, 2018 Date of Judgment: February 7, 2018 [ 1 ] This is N.A.H.’s application for guardianship of her granddaughter, L.M.H., born (omitted for publication). T.D.H. is the biological mother of L.M.H. and D.M. is the biological father. D.M. has not taken

part in these proceedings and advised T.D.H. before the hearing commenced that he would not be appearing. [ 2 ] N.A.H. has filed the requisite affidavit in support of her guardianship order. It discloses no criminal record, no Ministry of Child and Family Development files and no protection orders. There are some shocking revelations arising from the evidence related to this record check. It seems that the Ministry of Child and Family Development has had prior interactions with N.A.H. in relation to her own children.

There are reports that date back a number of years that are connected with the same property and the same parties. In fact, N.A.H.’s husband, who now lives in a house on the same property, was alleged to have met social workers with a shotgun. While the purpose of this hearing is not to determine whether that did occur, it is critical that a history of domestic violence be disclosed. It is astonishing that the record review of the Ministry files did not produce any information in relation to these investigations.

It leaves the court with the inaccurate assumption that there are no child protection concerns in N.A.H.’s history. [ 3 ] Sherry Ouellette who is a social worker who has conduct of the file in respect of L.M.H., could not explain why the record search did not produce the history that she clearly had when she testified.

While she observed that older records had not yet all been placed on the system, those records are still available to the people who do those record searches from a central location. [ 4 ] N.A.H. could have disclosed in her affidavits that there had been a history despite the results showing otherwise. She did not do so. In part, this may have been the way the standard affidavit form is worded. In part, it was to conceal information that may have impacted her application negatively. [ 5 ] There is also a Views of the Child Report prepared by Karen Fenton following an interview of L.M.H. on November 20, 2017.

I note that this interview is conducted before L.M.H. had some lengthy visits with her mother, which must be taken into consideration when formulating a clearer view of the views of the child. On both occasions that she had these lengthy visits, L.M.H. has asked to extend them. This includes a letter she provided during the course of these proceedings so that she could stay longer on her visit she was about to have with her mother. It is clear that L.M.H. is enjoying these lengthy visits. [ 6 ] Otherwise, the most relevant observations from the Views of the Child Report are as follows:

a) L.M.H. was clear to Ms. Fenton that she wanted to continue to live with her maternal grandparents.

b) She sometimes refers to her maternal grandparents as mom and dad and knows that they appreciate the sentiment.

c) At present, L.M.H. is satisfied to connect with her mother and sister, B., daily on social media and spend time with them when they can arrange a mutually suitable time.

d) L.M.H. is passionate about animals and does not want to be away from her own for long.

e) She enjoys spending time with her mother and being a big sister to B.

f) Her mother is outgoing and loves to hike, ride quads and go boating.

g) L.M.H. is comfortable with her stepfather, M.N., and appreciates that he does all the driving for her visits.

h) L.M.H. is aware of the Ministry involvement in her life due to allegations of child protection concerns over the years but trusts her grandparents and denies she has ever been at risk.

i) She denies she has been sexually abused by her cousin, D., but acknowledges her mother’s concern about the reports she received of D. roughhousing with L.M.H.

j) L.M.H. denies that her grandfather’s verbal and physical aggression towards to N.A.H. has caused L.M.H. any harm. She acknowledges this verbal aggression and admits that her grandfather says disparaging things about her grandmother’s housekeeping. He overreacts to simple situations but has never been physical.

k) L.M.H. prefers to be home schooled and believes she is doing well. She does not like being at school amongst large groups of students. [ 7 ] As L.M.H. is 12 years old, her consent to the appointment of a guardian is required. No such consent was provided. The application cannot succeed without that consent, although the consent itself is not the determining factor. Such a defect could be cured by having the child sign a consent if it is appropriate to do so. [ 8 ] It is largely undisputed that N.A.H. raised L.M.H. essentially from the time she was born until present.

It is the nature and reason for that role that is in dispute between the parties. This impacts my consideration of what is in the best interests of the child. [ 9 ] T.D.H. left L.M.H. in N.A.H.’s care while T.D.H. was going through a very difficult time. There is considerable dispute about how much time T.D.H. spent with L.M.H. over the ensuing years, and N.A.H.’s efforts to keep L.M.H. from returning to her mother. No application was made for guardianship until this application was filed. N.A.H., in that process, obtained an exparte interim order for

guardianship. [ 10 ] The circumstances of the interim application are suspect. N.A.H. claimed that she was concerned that T.D.H. would take L.M.H. and keep her with her. It would disrupt L.M.H.’ routine and schooling. L.M.H. was not even in school. [ 11 ] T.D.H. had been discussing taking L.M.H. for a trip and, on a more a long term basis, what would be in L.M.H.’s best interest. N.A.H. knew that T.D.H. was coming to take L.M.H. - not permanently, but for a visit. [ 12 ] N.A.H. ignored T.D.H.’s overtures in this regard and proceeded with an interim exparte application instead.

Only after obtaining the order did N.A.H. respond to T.D.H. She arranged to meet with T.D.H. whereupon she had N.A.H.’s son, Tim, serve T.D.H. with these application materials. It was a distressing event for T.D.H. Not only was this manipulative, but there appears to have been no consideration of what is in the best interests of L.M.H. [ 13 ] This is not the first instance in N.A.H.’s personal history where she has withheld a grandchild from the biological parent. She withheld Kayden from his mother, Teresa, who had to go to court to obtain an order forcing N.A.H. to return Kayden.

This is not the conduct of a responsible guardian who can be relied upon to exercise guardianship responsibilities. [ 14 ] On the issue of exercising guardianship responsibilities, N.A.H. has also told doctors, teachers and social workers not to speak with T.D.H. because she was not a guardian of L.M.H. However, T.D.H. was in fact the guardian and N.A.H. was not. N.A.H. was relying upon the statutory declaration prepared by N.A.H. and signed by T.D.H. without legal advice. That statutory declaration did not relinquish T.D.H.’s guardianship rights nor appoint N.A.H. as an exclusive guardian.

Rather, it gave N.A.H. the ability to act in the place of a guardian. N.A.H. did not obtain a similar document from D.M., who was also a guardian of L.M.H. [ 15 ]

Section 51 of the Family Law Act empowers the court to appoint a person as a child’s guardian upon the court being satisfied that it is in the best interests of the child to do so. [ 16 ]

Section 37 of the Family Law Act enumerates certain considerations for determining the best interests of the child.

They include L.M.H.’s health and emotional wellbeing; her views; the nature and strength of relationships between L.M.H. and significant persons in her life; the history of L.M.H.’s care; L.M.H.’s need for stability given her age and stage of development; the ability of each person who is a guardian or seeks guardianship of the child to exercise those responsibilities; and the impact of family violence on L.M.H.’s safety, security or wellbeing. [ 17 ] With respect to her health and emotional wellbeing, L.M.H. appears to be in good health.

N.A.H. believes that L.M.H. has attention deficit hyperactivity disorder but she has never been diagnosed. There is some reference to L.M.H. possibly being depressed, but again there is no evidence of this. Evidently, when referred for an assessment, the clinic declined to see L.M.H. given the lack of evidence of ADHD. L.M.H. herself maintains that she is neither depressed nor sick in any way. [ 18 ] L.M.H.’s cardio health is possibly suffering. M.N. testified that when he was playing with the children running up and down a long driveway, L.M.H. was required to pause for a break when others did not.

It is suggested by T.D.H. that this may relate to the amount of time that L.M.H. spends sitting at a computer rather than being out and about with active friends. [ 19 ] There is a concern expressed by T.D.H. that L.M.H. feels abandoned by her mother. N.A.H. denies any involvement in impressing this view upon L.M.H. but her conduct speaks otherwise.

N.A.H.’s attitude toward T.D.H.’s involvement in the child’s life, in decision making and in her reasons for leaving L.M.H. with N.A.H. all tend to suggest that N.A.H. has left L.M.H. with that very impression. [ 20 ] There are also some issues about living conditions L.M.H. is in. She and N.A.H. live in a trailer on the property while L.M.H.’ grandfather lives in the house. The trailer has had water access problems. Also, after the forest fire evacuation left the trailer standing empty for a period of time, they returned to find rodents had moved into the premises.

L.M.H. reported mouse poop coming out of the ceiling in her room and onto her bed. As a result, she had to sleep with her grandmother on a mattress on the floor. N.A.H. denied this occurred but also took the firm view that L.M.H. does not lie. [ 21 ] It is unclear why L.M.H. feels a need to write a letter each time she wants to stay with her mother. She should not have to go to these lengths to visit or reside with her mother. I agree with counsel that this is emotionally unhealthy for L.M.H. [ 22 ] I have already set out the views of the child. However, I also have concerns regarding some content in that report.

What can be gleaned from it is that L.M.H. does not have friends where she lives in relative isolation. She considers her friends to be online game players with a common interest in Minecraft. The only other children nearby appear to be her cousins who are 6 and 11. She has a number of interests, from animals to horses to bike riding to photography, yet she does not seem to have any structured interactive time with others in sharing those interests.

Apart from her horseback riding lessons, L.M.H. appears to lead a relatively solitary existence apart from her grandparents’ company. [ 23 ] Perhaps most concerning is that N.A.H. testified she lives in a separate home from her estranged husband. However, it is clear that L.M.H. spends time in that home both in and out of the company of her grandmother. The evidence is that L.M.H. keeps to her room when her grandparents are fighting, and only comes out when she hears her grandmother crying.

L.M.H. believes this does no harm to her, which could not be further from the truth. [ 24 ] While N.A.H. maintained that she and L.M.H. live separately from Mr. H., L.M.H. referred to living with her “grandparents”. She does not deny that her grandfather is verbally disparaging to her grandmother, but denies that he has ever been physical. When considered along with the evidence of Ms.

Ouellette, it is clear that domestic violence continues to be an issue, with or without the physical aggression. [ 25 ] With respect to the nature and strength of the relationships L.M.H. has with significant persons in her life, I have already highlighted my concern about her relative isolation and lack of peer-aged friends. N.A.H. was unable to provide names of any friends

that L.M.H. may have. [ 26 ] It is clear that L.M.H. loves her grandparents but it is equally clear that she loves and enjoys her time with her mother, her half- sister B., and her stepsisters. When she asked for an extended stay for her last visit, she specifically identified M.N.’s daughters as one of the reasons she wished to stay longer. [ 27 ] When L.M.H. visits T.D.H., she has friends she has made there. T.D.H. knows the name of those friends and is aware that L.M.H. has continued to maintain contacts through Instagram and otherwise.

There was one issue with respect to a “boyfriend” whose father was concerned about the difference in age because L.M.H. was two years older. T.D.H. appears to be assisting L.M.H. through this heartache. [ 28 ] L.M.H. also appears to have developed a bond with her stepfather, M.N. She enjoys the very long drive she has with him between her grandmother’s home and M.N.’s home in Bonneville. [ 29 ] The history of L.M.H.’s care is not disputed. N.A.H. has raised L.M.H. since she was approximately two months old. However, T.D.H. had sought L.M.H.’s return from time to time over the years.

N.A.H. refused L.M.H.’s return believing that T.D.H. was not yet ready to raise her. However, this was during a time that T.D.H. was already raising her other two children, T. and B. This was with N.A.H.’s knowledge and blessing. Her refusal to return L.M.H. lacked substance. [ 30 ] There was also some concern over the loss of an infant son in N.A.H.’s care. She was, understandably, deeply upset by the loss of this grandchild. T.D.H. felt it would be unfair to remove L.M.H. during such trouble.

Even if she had seen fit to remove L.M.H., it is unclear that T.D.H. would have been able to care for her in that time. [ 31 ] Over the years, and until T.D.H. relocated to Bonneville in September 2014, T.D.H. interacted with L.M.H. multiple times a week providing care to and connection with her daughter. N.A.H. minimizes this contact in much the same way that she has minimized other relationships L.M.H. should be nurturing. [ 32 ] Ms. Hebert argued that L.M.H.’s need for stability given her age and stage of development is extremely important for L.M.H. This arises from the issue over L.M.H.’s education.

Evidently, L.M.H. expressed her discontent with school. Her grandmother withdrew her and now home schools her. It appears to be very unstructured and L.M.H. seems to be falling behind. Certainly the notes she wrote are in a very crude hand. Her reports to her online instructor lack proper punctuation, grammar and sentence structure. T.D.H. is concerned that the home schooling is not adequate to L.M.H.’s needs and she will continue to fall behind if she does not return to public school. [ 33 ] It is true that L.M.H. has expressed discomfort with being in a large group of people.

However, she asked her mother to take her on a tour of the school in Bonneville that she would attend if she lived there. She appeared relaxed and comfortable with that visit. [ 34 ] It is clear that L.M.H. lives an isolated and unsocialized lifestyle at her grandmother’s home. In Bonneville, she can be provided with a comfortable, clean and safe home under the care of her mother and stepfather. Her mother works nearby to both the school and home. Her stepfather works partly out of the home.

Returning to school will permit L.M.H. to be properly socialized and to give her the opportunity she has missed of engaging with peers on a regular basis. She will also be more physically active while still being able to engage with all of her interests including horse riding, the care of animals, skating and other outdoor activities. [ 35 ] T.D.H. is already a guardian of L.M.H. She is already cognizant of her need to reach out and cooperate with other caregivers of L.M.H.

She has made repeated overtures to attempt to find a way to have L.M.H. return to her home while still encouraging and maintaining the relationship L.M.H. has with her grandmother. The same cannot be said for N.A.H. [ 36 ] Despite being told in court that T.D.H. was a guardian of L.M.H., N.A.H. persisted in telling teachers not to speak with T.D.H. until as late as January 2018.

That she has told education and health care providers the same thing in the past gives me great concern that N.A.H. has no intention of cooperating as a guardian with the other guardians of L.M.H. [ 37 ] There are also other insidious actions of N.A.H. that have made it difficult for T.D.H. to give proper care to L.M.H. One such instance is N.A.H.’s evasiveness revolving around the school login information and health care number, which were specifically to be provided under a consent order she entered with T.D.H.

Instead, she sent L.M.H. to T.D.H. without the health care number saying that L.M.H. had it in her possession. It was in L.M.H.’s cell phone. N.A.H. ought to have given it directly to T.D.H. in the event that something should transpire and L.M.H. was unable to find the health care number for her mother. [ 38 ] Similarly, with the school login, N.A.H. said that L.M.H. had the information. However, T.D.H. said that L.M.H. clearly did not know the login information when they attempted to do her school work.

Despite N.A.H. insisting that L.M.H. would not lie or tell people what she believed they wanted to hear, her response to this was perhaps L.M.H. did not want to do her school work, so she said that she did not know how to log in. [ 39 ] N.A.H. is clearly manipulating control of information to keep T.D.H. from being engaged. This is not the hallmark of a person capable of exercising the responsibilities of a guardian. [ 40 ] Finally, on the issue of family violence, L.M.H.’s coping capacities do not give the court the assurance that the domestic violence is not negatively impacting L.M.H.

N.A.H. does not appreciate the impact of the arguments on L.M.H. Ms. Ouellette stated that if L.M.H. and N.A.H. were in fact living with L.M.H.’s grandfather, the Ministry would have concerns. With the amount of time that L.M.H. appears to be spending at her grandfather’s place, separate residences seem more of form than substance. [ 41 ] It cannot be minimized that N.A.H. has had a significant role in the upbringing of L.M.H. at a time when L.M.H.’s own parents were incapable of caring for her. T.D.H. would have sought return of L.M.H. sooner but for two significant factors in her life.

The first was the death of her nephew. T.D.H. felt that it would be too hard for N.A.H. to also part with L.M.H. with during this time.

[ 42 ] The second significant factor is T.D.H.’s own insecurity and lack of confidence to confront her mother about the return of the child. It is only after she has obtained counselling and acquired the support of her husband that T.D.H. feels she is capable of pursuing the proceedings necessary to seek the return of the child. [ 43 ] T.D.H. is L.M.H.’s guardian. Her other guardian, D.M., has not engaged in these proceedings. T.D.H. is capable of providing a safe, stable and appropriate home for L.M.H. There is no need to add a guardian in L.M.H.’s life at this stage.

There is no compelling reason why L.M.H. should not return to live with her mother. [ 44 ] I am not satisfied that the application brought by N.A.H. is as forthright as it must be in order for the court to appoint a guardian. Nor am I satisfied that N.A.H. is capable of exercising guardianship responsibilities, protecting L.M.H. from exposure to domestic violence, or properly socializing and educating L.M.H. [ 45 ] I dismiss N.A.H.’s application for guardianship. T.D.H. shall have primary residence of L.M.H.

It is important, at least for the short term, that there be contact time provided for L.M.H. in order to ensure that she maintains her relationship with her grandmother. For 2018 and 2019, N.A.H. shall have the following contact time with L.M.H.:

a) one week of the school’s spring break. T.D.H. shall advise N.A.H. which week N.A.H. will have contact time with L.M.H. not later than the 15 th day of February each year;

b) one month of the summer break. T.D.H. shall advise N.A.H. of which month she will have contact time with L.M.H. not later than June 15 of each year;

c) one-half of Christmas break commencing on the Saturday after the last day of school in 2018, and for the second half of Christmas break in 2019; and

d) such further and other times as may be agreed between the parties. [ 46 ] On each occasion that N.A.H. has contact time with L.M.H., T.D.H. will fly L.M.H. from Bonneville to Kamloops. N.A.H. is responsible for picking up L.M.H. and dropping her off at the Kamloops airport. In the event that T.D.H. is able to arrange for someone to pick up L.M.H. from Alberta and drive her to or from N.A.H.’s residence, then T.D.H. may elect that transportation on notice to N.A.H. [ 47 ] This order will end at the end of 2019. Contact time with grandparents is something that is best left to the guardians.

L.M.H. will be 14 years old and will have other interests that must be accommodated in determining how much time she will spend away from home. ____________________________ S.D. Frame Provincial Court Judge