S.M.K. v. C.L., 2018 BCPC 64

Citation: S.M.K. v. C.L. 2018 BCPC 64 Date: 20180227 File No: 16882 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.M.K. APPLICANT AND: C.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Appearing on their own behalf: S.M.K. (via telephone) Place of Hearing: Kamloops , B.C. Date of Hearing: February 21, 2018 Date of Judgment: February 27, 2018 [ 1 ] This is an application by S.M.K. under s. 51 of Family Law Act for guardianship of T.L.A., born [omitted for publication]. S.M.K. is T.L.A.’s aunt. The named Respondents are C.L., D.A. and D.D. [ 2 ] There is an affidavit from S.M.K. in support of the s. 51 application which attaches the prior guardianship agreement between D.A. and D.D.

In the affidavit, S.M.K. said that C.L. is not an option for the child because of child protection concerns, mental health issues, addiction, criminal activities and homelessness. There are no particulars provided for the source of the information. [ 3 ] The affidavit attaches the Death Certificate of D.A. but no Death Certificate for D.D. I accept that she is also deceased. [ 4 ] The affidavit attaches a 2016 agreement between D.D. and D.A. agreeing that D.A. would have primary residence and the day- to-day care of T.L.A. D.D. would have contact and visits at D.A.’s discretion.

This agreement was evidently signed at the Red Deer Child and Family Services office. [ 5 ] There is a letter from Nancy Tarrant, a social worker from Sexqeltqin Health Centre. In her correspondence, Ms. Tarrant advises that T.L.A. had not resided with her biological mother since 2013. The Adams Lake Indian Band became involved with C.L. while she resided on the Indian Band lands in the Chase area in 2012 due to substance issues and safety and wellbeing concerns for T.L.A.

The letter states that C.L. continues to live in the Chase area and has continued to struggle with alcohol and drug addiction issues since T.L.A. last resided with her in 2013. [ 6 ] There is also a letter from the Secwepemc Child & Family Services which states that they are aware that S.M.K. and R.K. would be seeking guardianship of T.L.A. The letter states that Secwepemc Child & Family Services does not support T.L.A.’s biological mother C.L. pursuing guardianship.

If C.L. were to do so, Secwepemc Child & Family Services would have concerns with C.L.’s ability to parent T.L.A. [ 7 ] This affidavit and the application were served on C.L. on October 2, 2017. She has filed no reply. [ 8 ] S.M.K. has also filed a Form 34 affidavit as required by Rule 18.1(1) and s. 51 of the Family Law Act . The appropriate record checks have been attached and show that there are no protection orders, child protection records, or police records associated with S.M.K. [ 9 ] The only void in this information is the evidence that removes C.L. as a guardian and replaces D.A. and D.D. as guardians.

However, C.L. was given notice of the application and chose not to respond. If she is in fact still a guardian, that status will remain unchanged by this order. If she is not a guardian, then that status will also remain unchanged by this order and S.M.K. will become the sole guardian as a matter of law. [ 10 ] Under s. 51(1)(

a) of the Family Law Act , S.M.K. is appointed guardian of the child. [ 11 ] Under s. 40(30(

a) of the Family Law Act , S.M.K. will have all of the parental responsibilities for the child. [ 12 ] The primary residence of the child shall be with S.M.K. ________________________ S.D. Frame Provincial Court Judge