C.N. and D.N. v. S.I. and J.I. Date:, 2018 BCPC 34

Citation: C.N. and D.N. v. S.I. and J.I. Date: 20180213 2018 BCPC 34 File No: 17-29727 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.N. AND D.N. APPLICANTS AND: S.I. AND J.I. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOVE Appearing in person: C.N. Appearing in person: D.N.

Appearing in person: S.I. Appearing in person: J.I. Place of Hearing: Vancouver , B.C. Date of Hearing: January 30 and 31, February 1 and 2, 2018 Date of Judgment: February 13, 2018 Pre-trial document disclosure [ 1 ] During a pretrial conference I ordered that each party exchange documents that the party wished to file at this hearing with the other parties by December 15, 2017. Some documents were exchanged. During the trial, C.N. and S.I. produced documents that had not been exchanged and that they proposed to file as exhibits.

Recognizing that neither party had counsel and both wanted to file these exhibits, I allowed them to do so. Some of the contents of the documents are clearly hearsay. I have been very careful to not rely upon any evidence, including some of these documents, that would not be properly admissible as evidence. [ 2 ] C.N., D.N., K.N., and Brenda Rasi, a complex development behavioural educator, testified at this hearing; as did S.I., her mother D.I., and J.I. J.I. was at the pre-trial conference and therefore knew of the hearing dates.

She did not appear until the fourth day of the hearing when she expressed her views. M.I.’S early years [ 3 ] M.I. was born on [omitted for publication]. His mother is J.I. and his father is R.N. His maternal grandmother is S.I. His paternal grandmother is C.N. and his paternal grandfather is D.N. M.I. was born premature with complications related to his mother having used opiates and alcohol during her pregnancy. [ 4 ] Upon his birth, his mother J.I. wanted to place M.I. for adoption. When notified of the birth, R.N. advised that he wanted an opportunity to raise M.I. M.I. remained in the B.C.

Children’s Hospital until September 14, 2010 when he was “removed” by the Director of Child, Family and Community Services and placed in a foster home where he lived for almost the first year of his life. On August 17, 2011 this court ordered that S.I., his maternal grandmother, have interim custody of him under the Family Relations Act . [ 5 ] While living with S.I., his paternal grandparents, C.N. and D.N. had visits with him. He went to stay with their daughter, K.N., on many weekends and travelled with the N. family, for example on a California holiday.

At one point, K.N. stated that have if J.I. or R.N. were unable to care for M.I., she would like to be considered to adopt him. This upset S.I. who then cut off all access to C.N., D.N. and K.N.in early 2012. [ 6 ] On December 14, 2014 N.S., who lived with S.I. and apparently was seen by M.I. in a grandfather role, committed suicide by firearm in their condominium. S.I. had difficulty coping with the death. [ 7 ] M.I. was “removed” from S.I. by the Director on August 12, 2015. This removal was due to a concern that S.I. was leaving M.I. unsupervised in the care of J.I. who was using drugs and unstable.

When S.I. refused to enter into an agreement with the Director that J.I.’s contact with M.I. would be supervised, the Director determined that he was at risk. M.I. was placed with C.N. and D.N. as foster parents. [ 8 ] On September 28, 2015 this court ordered that M.I. be returned to S.I., under supervision, including that he was not to have access to J.I. or R.N. unless such was arranged and supervised by the Director. After three months the supervision order expired and the Director closed the file. [ 9 ] Once M.I. was returned to S.I., she denied access to C.N. and D.N.

In October 2015, the N.’s brought an application for access to M.I. which was later amended seeking guardianship. That application is before the court on this hearing as well as an application by S.I. for guardianship. [ 10 ] From the time of M.I.’s birth it appears that R.N. continued to be unstable due to his psychiatric problems, for which he was hospitalized several times, and his drug addiction. He was twice in residential addiction recovery institutions. He died of a drug overdose in December 2015. [ 11 ] After M.I. was returned to S.I. she became unstable.

She had lost N.S. and seems not to have been doing very well. From the evidence, it seems that she and M.I. often moved residences, at times staying with friends and family. At one point when she went to Penticton, taking M.I. with her and out of school; she was effectively homeless. [ 12 ] It was while S.I. and M.I. were in Penticton or travelling back to the Lower Mainland that on May 24, 2016 this court ordered C.N. and D.N. be guardians of M.I.

S.I. turned M.I. over to the N.’s and since then he has lived with them. [ 13 ] In spite of C.N.’s efforts to have S.I. visit M.I., she has refused to and has not seen him nor spoken to him by telephone when he phones. J.I. continues to have an unstable life and struggles with her drug addiction. She has had a few visits with M.I., although C.N. has encouraged her to visit more often. She makes arrangements to visit but seldom shows up. M.I. today [ 14 ] M.I. is in Grade 2 at the [omitted for publication]. He has been diagnosed with cerebral palsy.

He also has some cognitive difficulties that, although not yet formally diagnosed, are felt by the experts dealing with him to be due to FASD and neonatal abstinence

syndrome. He regularly attends many medical appointments. A psychoeducational assessment was completed in June 2017 and was filed as an exhibit. It is obvious that this child requires a lot of additional care, which he is receiving within C.N. and D.N.’s home. S.I. has been invited to obtain information from the doctors about M.I. and his special needs and also to attend leg surgery he had for his cerebral palsy. She has not met with the doctors, does not have an appreciation of his medical needs, and did not attend the surgery. The surgery was successful.

M.I. will need to wear a brace until he stops growing. [ 15 ] M.I. will be assessed in the future at the Sunny Hill Children’s Hospital. This will determine whether he is formally diagnosed as FASD and will determine any other neurological impairment. GUARDIANSHIP [ 16 ] S.I. and C.N. conducted their cases during this four-day trial and each gave evidence, both under oath and during many “statements” to the court and to each other. I found that C.N. was a calm, sensible witness whose interests are clearly for M.I. and his future.

She and her husband operate a successful business that they plan to sell in the near future. They live in Lions Bay, West Vancouver. They have property in Vancouver and Whistler. C.N. is 64 years of age and D.N. is 69. Their daughter, K.N., is married and is a lawyer. She has two young children. They are in a position both financially and by stability to provide M.I. with a home and the care that he will require to grow into a healthy adult, addressing his medical complications.

C.N. has been very clear that if she has sole guardianship of M.I. she will continue to encourage and permit S.I. and J.I. to visit with him and be part of his life. [ 17 ] C.N. has educated herself on M.I.’s needs and how the person caring for him can get those needs met. Her attachment, as well as that of D.N.’s, to M.I. is strong. She has the sort of grounded approach to this special needs child that a guardian raising him needs and will need in the future.

The evidence is that M.I. needs consistency and C.N. is certainly capable and, in fact, is providing that. [ 18 ] S.I. apparently lives in East Vancouver but plans to move again. She would not tell the court where she lives or works. The only conclusion that the court can come to is that she currently is very unstable and has been so for some time. Some of the documents filed as well as her own evidence indicate that in her past she has had difficulty with her mental health and addictions.

On her evidence, she is not currently receiving any assistance for these issues. [ 19 ] During the trial, S.I. caused the court great concern with respect to her mental stability. She often interrupted others who were speaking and yelled rather vicious statements to the N. family. The court was, at times, concerned as to whether S.I. was in a mental state such that she might not be able to carry on with a judicial proceeding. The hearing did proceed and it became apparent that “holding accountable” C.N. was her main interest in the proceedings. Punishing her, apparently, for some perceived wrong.

It is unclear why she has such animosity towards C.N., but it is obvious that they could not share guardianship responsibilities. For example, the N. family often travel and wish to travel to visit relatives in United States as well as for vacations often in Palm Springs or Hawaii. C.N. wants to take M.I. to England. S.I. has refused to allow M.I. to renew his passport to do this. She stated to C.N. in court “you will never get a passport for M.I. if I am a guardian”. This attitude, unfortunately, was seen throughout not only her evidence, but during her examination of witnesses and statements made in court.

It is consistent with her conduct. [ 20 ] S.I. has taken her upset with C.N. to anyone who disagrees with her. She sees them as enemies. This includes those who are providing care to M.I. She has reported many of these people, including school principals, K.N. as a lawyer, social workers, RCMP, and others to their employers and/or regulatory bodies. She told the court that M.I. “is being held hostage“. Decision [ 21 ] C.N. and S.I. both very much want to raise M.I.

Unfortunately, they are not able to agree on virtually anything in this case including the facts, how events should be interpreted, even what judges ordered in the past. One thing that they do agree on when asked directly is that they cannot both be guardians for M.I. They have not been able to cooperate and agree on whom should raise M.I., parenting time, or anything else that guardians who live apart and are raising a child must do.

So the court must decide who is best suited to raise M.I., and that party will be the guardian. [ 22 ] Having considered the provisions of the Family Law Act and in particular turning my attention to the best interests of M.I., I have no doubt that the situation that he is in presently is the best that one could hope for him. To move him from the stability that he currently enjoys to the instability of S.I.’s home would be clearly contrary to his current interests and future development. Further, as stated above, to allow S.I. and J.I. to be guardians and therefore take

part in the direction of his life simply will not work. Since M.I.’s birth, J.I. has been and remains completely unstable. S.I. is currently living in an unstable situation, but more importantly her attitude towards the N. family would ensure that any proposal of joint decision-making would be a disaster. [ 23 ] Therefore, in M.I.’s best interest, C.N. and D.N. will be the sole guardians of M.I. This will entitle them to carry out all the responsibilities of raising him, including obtaining a passport for him and travelling with him outside of Canada.

I will allow for S.I. and J.I. to have contact with M.I. but that time, including the need for supervision, shall be at the discretion of C.N. [ 24 ] I truly hope now that this trial is over and there is some certainty in who will raise M.I., S.I. will see her way to overcome her animosity to the N.’s and agree to allow M.I. to enjoy her companionship. I also hope that J.I. overcomes her difficulties such that she will be able to have a meaningful relationship with M.I. [ 25 ] The court orders: 1. all previous orders dealing with guardianship, custody and access to M.I. be set aside; 2. under s. 51(1)(

a) of the Family Law Act (FLA) C.N. and D.N. are appointed sole guardians of M.I.; 3. under s. 40(3)(

a) of the FLA C.N. and D.N. will have all of the parental responsibilities for M.I.; 4. S.I. and J.I. shall have contact with M.I. at the discretion of C.N. and, under s. 59(3) of the FLA , any such contact will be

supervised at the discretion of C.N. ________________________ The Honourable T. Gove Provincial Court Judge