M.M.F. v. C.T.F. and J.J.K., 2019 BCPC 19

Citation: M.M.F. v. C.T.F. and J.J.K. 2019 BCPC 19 Date: 20190129 File Nos: F17064, F17079, F18083 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 File No: 17064 BETWEEN: F.M.A.C. APPLICANT AND: C.T.F. J.J.K. RESPONDENTS File No: 17079 BETWEEN: M.M.F. APPLICANT AND: C.T.F. J.J.K. RESPONDENTS File No: 18083 BETWEEN: C.T.F. APPLICANT AND: J.J.K. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G. BROWN Counsel for M.F.: J. Steiner Counsel for J.K.: B. Scheirer Appearing on her own behalf: C.F. Place of Hearing: Abbotsford , B.C.

Date of Hearing: October 1, 2, November 20, 2018 Date of Judgment: January 29, 2019

INTRODUCTION [ 1 ] THE COURT: These are my reasons for judgment in the proceeding M.M.F. v. C.T.F., and J.J.K., file number 17079. [ 2 ] M.F. is the maternal grandmother of J.K., born [omitted for publication] and C.F. and J.K. are his parents. By necessity, my decision will also reference file 17064, where the paternal grandmother F.M.A.C. was the applicant and the parents were the respondents. Ms. C. is no longer seeking any relief under that proceeding but past orders were granted in that file. [ 3 ] This is a complicated set of family proceedings involving the now three-year-old boy J.

It is complicated because the paternal grandmother, F.C., is very much involved in the care of J. while her son, the father, is away from home driving a truck for a living. Ms. C., her spouse, and Mr. K. have been living in [omitted for publication] with the child since August of 2017. To complicate matters further the maternal grandmother, M.F., had historically been caring for J. and she was essentially supervising her daughter's visits with the boy for some time. M.F. is pursuing her application in proceeding 17079 to seek guardianship and primary care of J. [ 4 ] As stated in page 3 of the

Section 211 Report prepared in this case, "The dynamics between the four adults is best described as complicated and fluctuating." Historically, the parents were not J.'s primary caregivers and their separation was a difficult one. However, at this time they communicate much better and they each are more involved in J.'s care in their own way. Mr. K. also now has a better relationship with his mother. In the past, Ms.

C. had alleged that her son was withholding J. from her. [ 5 ] M. and C.F. continue to have what can only be described as a strained relationship and C. does not support her mother's application. [ 6 ] Notwithstanding these changing allegiances, it is clear to me that the grandmothers, especially F.C., have played a large role in raising this young boy. I must decide what role each party is to play in J.'s life. M.F. seeks guardianship and primary care of J. in [omitted for publication], whereas the parents and Ms.

C. desire to preserve the current arrangement where J. is being raised by the paternal side of the family in [omitted for publication]. [ 7 ] As set out in page 9 of the

Section 211 Report, the parties collectively have not found a way to cooperate and I certainly agree that it is in J.'s best interests that all four adults make better efforts in that regard. BACKGROUND [ 8 ] Most of the background facts are not contentious and my findings are based on the evidence presented and information contained in the

Section 211 Report, submitted October 9th, 2017. [ 9 ] The father, J.K., is now 52 years old and he is a career truck driver. He met C.F., who is almost half his age, in the spring of 2014. There were ongoing problems in their relationship but they were a couple when J. came into this world on [omitted for publication]. [ 10 ] In February of 2016, during an argument between the parents, C.F. was attacked by Mr.

K.'s dog and the relationship ended in March of 2016. [ 11 ] As I stated earlier, each of the grandmothers in this case have featured largely in J.'s life. [ 12 ] In April of 2016, the parents gave their mothers, F.C. and M.F., a form of parenting rights in a written agreement. [ 13 ] On July 19, 2016, in file 17064, I granted an interim order on a without prejudice basis wherein C.F. would exercise her parenting time at the home of her mother, M. M.F. then had care of J. on extended weekends. The father was to exercise his parenting time while F.C. had care of the child for the remainder of each week.

Based on the evidence I have heard, M.F. was most involved in J.'s life for some four months from mid July 2016 to early November 2016. [ 14 ] Certain other orders were made under file 17064. [ 15 ] On August 3rd, 2016, F.C. obtained a court order granting her care of J. and suspending the parents' parenting time. There was some concern that her son did not return J. to her as expected, however, that order was soon vacated on August 9, 2016.

The August 9, 2016 order also contained a term that neither the parents nor the grandmothers were to remove J. from the Lower Mainland. [ 16 ] Just weeks later, on August 30th, 2016, I ordered that a

Section 211 Report be prepared for both court files to assess the guardianship of J., with the assessment to include the parents and the grandmothers. That report was ultimately prepared on October 9, 2017 and it recommended that the father and both grandmothers share guardianship of J., however, the report writer recognized that it would be a challenge for these three adults to jointly make decisions for J. given that J.K. and his mother were in [omitted for publication] and M.F. was in [omitted for publication].

As I discuss later, joint guardianship of this type would be all the more difficult because of the distrust that continues to exist between M.F. and the other parties. [ 17 ] My July 19, 2016 order under file 17064 was varied on November 4, 2016 so that the mother's parenting time was to be at times agreed between the mother and father. [ 18 ] On the same date, in an order in this proceeding, 17079, M.F. was granted contact time as agreed between the parties and any information obtained by her concerning J.'s development and health issues was to be shared in writing with the parents.

M.F. consented to this order and had counsel present. M.F. saw much less of J. following these November 4, 2016 orders, as J. lived primarily with F.C. and the father in the [omitted for publication] area. [ 19 ] At a case conference on June 16, 2017, a consent order under file 17064 was granted deleting the clause prohibiting J. from

being removed from the Lower Mainland. At the same case conference, a consent order was made in this proceeding which granted C.F. parenting time as agreed with the father to include Wednesday afternoon until Thursday afternoon. C.F. was to notify J.K. of her intention to exercise parenting time 24 hours in advance. M.F. expressly consented to the latter order and she was present when both orders were made. [ 20 ] In August of 2017, J. moved with his father and the C.s to [omitted for publication].

Although C.F. had filed a motion to prohibit J.'s move outside the Lower Mainland, she is now fully supportive of the move and she is content with her visitation. [ 21 ] M.F. has had very limited contact with J. since the move to [omitted for publication]. On June 11, 2018 a court order did grant her contact time with J. in [omitted for publication] each Wednesday during J.K.'s working hours but, for a variety of reasons, she has only had one or two visits with J. in [omitted for publication].

She was also granted contact time once per month to coincide with the mother's parenting time on a Wednesday in [omitted for publication] and once per month to coincide with the mother's parenting time on a weekend in [omitted for publication]. Again, M.F.'s actual visits have been very limited. M.F.'S CARE OF J. [ 22 ] M.F. is 59 years old and she raised C.F. and three other daughters, all of whom were adopted. She has been a special education teacher for close to 30 years and her work is flexible.

If she were granted primary care of J. she has the flexibility to shorten her hours or even take a leave of absence. M.F. has separated from her spouse and she lives alone in a modular home in [omitted for publication]. The home has a bedroom for J. She has lots of extended family in the area. I have no concerns with the criminal record check or Ministry check. [ 23 ] M.F. indicates that she has a good relationship with C. but there have been differences of opinion. Her daughter has anxiety, some learning difficulties and she struggles with PTSD. M.F. states that she is open to a fair and reasonable visitation

schedule for the parents should she be granted her application. However, I note that her daughter feels that her mother has and would hinder her visitation. [ 24 ] M.F. has known Mr. K. since about 2014 and she was present at J.'s birth with F.C. After J. was born, M.F. felt that C. was overwhelmed with her responsibilities in caring for J. and in caring for the family home. M. would often take J. to give the parents a break and F.C. was also involved with J. [ 25 ] Following the parties' separation in the spring of 2016, F.C. applied for guardianship and M.F. says she responded with her own application .

Based on my order of July 19, 2016 and the evidence I have heard, it is clear that the grandmothers were given primary caregiver roles at that time. C.F.'s parenting time occurred at M.'s home on extended weekends and F.C. had care of J. for the remainder of the week during which time the father exercised his parenting time. As indicated above, this arrangement continued for about four months. [ 26 ] During this period, M.F. cared for J. Friday to Monday of each week and C. visited J. at M.'s home but not overnight.

Also during this time period, M.F. took certain measures to address J.'s medical needs and development. I find that M. was undoubtedly acting in J.'s best interests but her efforts created friction between the parties due to a perceived lack of consultation. [ 27 ] It is also evident that M. felt that the other parties were not diligently addressing J.'s health issues. For example, F.C. had explained that J. had been suffering from an ear infection but it was M. who renewed the antibiotic prescription twice to ensure the infection was gone.

M. was concerned that J. sat in a W position and she tried to role model how J. should be sitting. She also observed J. to drag one leg and to have a skin condition. On her own, M. sought the advice of an occupational therapist. An email from the occupational therapist was given to C. to pass on to the father. [ 28 ] M.F. also initiated a referral of J. to Early Childhood Development Services. She felt J. was delayed in his language skills and he needed his eyes checked.

I understand that J. went to an optometry clinic much later in 2017 and his eye alignment is now stable. [ 29 ] Perhaps of most significance, M. observed J. to have what appeared to be a seizure and she consulted with a pediatrician, Dr. Anquist. C. was aware of this consult but M. thought C. would pass this information on to the paternal side of the father.

J. was never seen by a neurologist to follow up on the seizure concern but he has not exhibited anything like a seizure since that time. [ 30 ] Based on the November 4, 2016 order made in this proceeding, M.F.'s contact time was to be agreed upon between the parties. In reality, M.'s contact time with J. was drastically reduced. J. was living primarily in [omitted for publication] with F.C. and the father. M. did pass on J.'s medical information to C. as required by the November 4th, 2016 order, but she expected C. to share that information with the father.

The father was transporting C. in his truck when C. picked up that medical information. [ 31 ] J.K. and his mother moved with J. to [omitted for publication] in August of 2017 and as discussed below, M. has had few visits with J. ever since. M. has several current concerns about J.'s care in [omitted for publication] including use of a car seat, marihuana smoke and a trampoline with no side netting. Of course, the father maintains that these issues are blown out of proportion.

He says he is using the car seat properly and he does not smoke marihuana in front of the child. [ 32 ] C. does not support her mother having any form of guardianship of J. Like the paternal side of the family, she sees her mother as "interfering" and she wants her to just be a grandmother. Even at the time she separated from J.K., C. felt her mother made it difficult for her to visit her son and there is a wedge between herself and her mother. C. is content with J. living in [omitted for publication] and she hopes to have unsupervised visits as arranged with Mr. K. She denies smoking marihuana around J.

VISITATION DIFFICULTIES FOR M. AND C.F. [ 33 ] As indicated above, M.F. was much less involved with J. following the November 4th, 2016 order made in this proceeding. J. resided primarily with F.C. and the father in the [omitted for publication] area, which is some distance from [omitted for publication]. According to M., the adults did not work cooperatively to ensure J. got to spend regular time with C. and her (see page 8 of the

Section

211 report). Conversely, Mr. K. claims that M.F. did not make enough of an effort to see J. He says she only had three visits with J. in [omitted for publication] but he was coming with J. to [omitted for publication] at his cost. [ 34 ] The move by F.C. and J.K. to [omitted for publication] in August of 2017 only exacerbated the problems with M.'s visits with J. From my perspective, Mr. K. has been a little cavalier in his handling of visits for M.F. but M. has had her own obstacles in visiting J. I note that Mr.

K. offered M. to see J. for his birthday in [omitted for publication] of 2017 but M. was unable to go. Mr. K. did deny the December 2017 visit because he felt M. was interfering.

M. had no form of visits whatsoever in February, March and April of 2018 and she missed seeing J. when he was down in the Lower Mainland in May of 2018. [ 35 ] The June 11th, 2018 order was intended to give M. more regular visits but, in reality, she only saw J. once or twice in [omitted for publication] in the summer of 2018 and a few times when J. was down in the Lower Mainland. [ 36 ] There have been a myriad of problems leading to M.'s lack of visitation. To begin with, Mr.

K. took the view that if he was not working on a Wednesday, then M. could not come up to visit J. because the order speaks of her visits occurring during his "working hours." The order is somewhat ambiguous in that regard. Furthermore, M.F. had wrist surgery in July of 2017 so she had difficult driving. Other difficulties included alleged delays in responding to text messages, weather, Mr. K.'s work schedule, the cost of gas, and M.'s responsibilities with her other grandchildren. [ 37 ] Moving forward, Mr.

K. proposes to bring J. down to the Lower Mainland one to two weekends per month but C.'s parenting time is his priority. He is concerned that M.'s time with J. takes away from C.'s time. Since the move to [omitted for publication] in August of 2017, he has made about 15 trips to [omitted for publication] for C.'s parenting time with J. More recently, F.C. has been coming down with J. on Wednesday and she stays with C. overnight to Thursday. [ 38 ] Respecting C.'s time with J., the

Section 211 Report indicates at page 9 that, for the most part, C.’s visits have always been supervised by someone. She now lives with C.N. in [omitted for publication] and she has told the court she is not ready to parent J. full- time, given her current situation and her educational plans. She fully supports J. living in [omitted for publication] and her preference is to visit him in [omitted for publication] if she can get a good winter vehicle. I will just add that I heard today of recent difficulties with visitation over December and it appears that Mr. K. was involved in a motor vehicle accident.

J.K.'S AND F.C.'S CARE OF J. [ 39 ] F.C. and J.K. now reside on the same property in [omitted for publication] and they appear to have a harmonious relationship at this time. The C.s live in a 5th wheel and Mr. K. resides in a cabin. This rural [omitted for publication] property consists of 20 acres with several outbuildings for chickens, horses, cows, goats and dogs. J. can ride his bike there or even use a small quad. [ 40 ] J. does appear to be well-adjusted in his [omitted for publication] home. He attends [omitted for publication] at least three times per week and F.C. takes him there.

According to the paternal side of the family, J. loves it on the farm. He can interact with the animals and play on the swings, in the sandbox and on the trampoline. He plays with a young girl, A., who lives nearby. [ 41 ] While I do look favourably upon J.'s current living arrangements, I am not oblivious to past concerns about Mr. K. At the time the

Section 211 Report was prepared on October 9, 2017, F.C. did not view Mr. K. as a suitable caregiver because there were times he did not adequately supervise J. (see page 7 of the report). [ 42 ] I also note at page 4 of the report that Alison Livingstone, a social worker, had a child protection file open from May to September of 2016. Although there were concerns about marihuana use by both parents and Mr. K.'s ability to parent, the social worker found J. healthy and adequately cared for and bonded to both his father and F.C. [ 43 ] I do appreciate that Mr.

K. is now a more experienced parent and his relationship with his mother has improved, but F.C. plays a key role in J.'s life. Without her involvement, I would have more concern about J.'s current parenting arrangement. As explained further below, it is F.C. who primarily cares for J. and she is the one to take him to his medical appointments. [ 44 ] I will address J.K.'s parenting of J. first. Mr. K. is 52 years old and he drives a gravel truck in the [omitted for publication] area. His trucking work has always kept him busy.

When he was in a relationship with C.F., he did truck runs to Calgary for five to six days per week. J.'s care was then left to C., his mother and I would add M.F. Following separation. Mr. K. acknowledges that his mother cared for J. while he was at work but when he was home he did change diapers and bathe J. [ 45 ] Mr. K. felt that M.F. interfered with C.'s parenting time by not allowing her overnights. [ 46 ] Mr. K. believes that the November 4, 2016 order signified a change whereby the parents were to become more directly involved in J.'s care.

C. was to see J. with his mother approximately every second weekend. Mr. K. felt M. was too "hard-headed" and she would consult physicians for J. without telling him. She became a wedge between herself and all the other parties. [ 47 ] Mr. K., his mother, her spouse, and J. moved to [omitted for publication] in August of 2017 because their friends bought property there which could accommodate all of them. He also found good work there. Unlike one year ago, he now has positive communication with C.F. He is still concerned that she can easily become overwhelmed.

As previously discussed, C.F. is now quite content with visiting J. one to two times per month and she feels J. is thriving in [omitted for publication]. [ 48 ] Mr. K. testified that he would involve C. in any major decisions involving J., such as circumcision. He feels decision making would be too difficult if M.F. were made a guardian. [ 49 ] Regarding marihuana use, Mr. K. does smoke it but not around J. He does not become intoxicated when smoking marihuana and he is seeing a counsellor to address his stress. [ 50 ] My general sense is that Mr.

K. is a good father to J. and this is corroborated not only by C. but by his own mother,

notwithstanding her prior concerns. Mr. K. is a little rough around the edges. In the past he would smack J. on the backside when hewas doing something dangerous but now he talks to him like a "little man." Mr. K. has seen J. count into the 20s, practice his A, B, C'sand partake in many activities. J. is on his dental plan and J. has a pediatrician, Dr. Little, in [omitted for publication]. Again, F.C. is theone who takes the boy to his appointments. The paternal family has never seen J. have a seizure. [51] F.C. is 69 years old and in good health.

She is married to E.C. and as previously explained, they reside in a 5th wheel in the[omitted for publication] property occupied by Mr. K. Mr. K. acknowledges that he could not care for J. without her assistance. Mr.K.'s trucking work can even take him to Williams Lake for periods of time. [52] According to F.C., following J.'s birth, she stayed with C.F. and J. during the week and went home to [omitted for publication]on the weekends. When C.F. and J.K. separated, J. stayed with her, her spouse and her son in [omitted for publication]. She minimizedM.F.'s involvement with J.

F.C. conceded that there was a time in August of 2016 when she had a dispute with her son because he hadnot brought J. back to her on time. [53] F.C. shares her son's concern that M. had taken J. to specialists without informing her or her son. At this time, J.'s hips are fineand there are no other concerns. The [omitted for publication] Clinic note of April 3, 2017 indicates that the alignment of J.'s eyes isstable. The Interior Health note from Dr.

Little, dated September 28th, 2018, states that J. has generally been in good health. [54] Of significance, F.C. has a good relationship with C.F. and C. confirms this to be the case. Following the November 4th, 2016set of orders, F.C. would take J. to C.'s home for visits. In fact, C. asserts that F.C. has been much more involved with J. than has herown mother.

Again, C. supports J. being in [omitted for publication] with F.C. and the father. [55] Notwithstanding that F.C. has been J.'s main caregiver in both [omitted for publication] and [omitted for publication], shewithdrew her guardianship application with the hope that M.F. would also drop her guardianship application. THE GUARDIANSHIP APPLICATIONS AND THE ROLE OF GRANDPARENTS [56] In this case, C.F. and J.K. are presumptive guardians under s. 39(1) of the Family Law Act. They are the parents of J. and livedtogether during J.'s birth and early life.

Of course, parenting responsibilities and parenting time still must be allocated between them. [57] M.F. has applied to be appointed a guardian under s. 51 of the FLA, and the onus is on her to establish that it is in the bestinterests of J. to be declared a guardian (see M.(A.A.A.) v. British Columbia (Director of Adoption) 2015 BCCA 220; S.(L.M.) v. U.(W.D.) 2018 BCSC 1154 at para. 189).

As I observed earlier, this is an unusual case where the grandmothers have played a large role inraising J. and I must evaluate M.F.'s application by considering only the best interests of J., as outlined in s. 37 of the FLA. [58] If M.F. is appointed a guardian, her parenting time and responsibilities must be established.

Even if I do not appoint her aguardian, she may be entitled to contact time under s. 58 of the FLA. [59] Before I engage in a detailed analysis of J.'s best interests in this case, it is important to briefly review some case law relating tograndparent applications for relief akin to guardianship. [60] In 1993, the seminal case of Chapman v. Chapman, (BCSC) set out some key principles to be considered infamily cases involving grandparents. [61] First, the onus is on the applicant grandparent to demonstrate that the proposed access is in the child's best interest.

Secondly,the custodial parent, as then defined, has a significant role. The court should be reluctant to interfere with a custodial parent's decisionand should do so only if satisfied it is in the child's best interest. Thirdly, it is not in the best interest of a child to be placed intocircumstances of real conflict between the custodial parent and the nonparent. [62] Our Court of Appeal in F.(N.) v. S.(H.L.), 1999 BCCA 398 , [1999] 127 B.C.A.C 66, cited Chapman with approval,although the court indicated that the third point may not apply to all cases of this kind. [63] In the case of D.W.M. v.

J.S.M., [2003] B.C.J No. 1861 (BC Master), the grandparent's application was dismissed and the courtsaid the following at paragraph 20: When ruling on an application for access to a child, a court must give paramount consideration to the best interest of that child. However, significant deference must be accorded the custodial parent and their ability to determine the child’s best interests. Ordinarilythe grandparents of that child are entitled to access at the time and for the duration and under the conditions that the custodial parent mayallow.

The limits to the court’s deference will be reached where the custodial parent is acting wilfully against the children’s bestinterests. [64] When the FLA came into force in 2013, a court dealing with parenting arrangements or contact was required to consider only thebest interests of the child under s. 37. Under the former FRA, s. 24 required a court to give "paramount consideration" to the bestinterests of the child. The court in M.S. v.

G.S., 2013 BCSC 1744, focused on the different wording under the FLA and concluded thatauthorities such as Chapman, cited above, would not result in a decision in full accord with the best interests of children as conceived bythe FLA. In short, preferring a parent as opposed to others is presumably a consideration of the parents' interests. [65] That being said, other recent decisions from our Supreme Court and Provincial Court have held onto and applied the keyprinciples in Chapman. For example, in Kalafchi v.

Yao, 2015 BCSC 1152, the court held that while deferring to the custodial parents'decision about contact with a non-guardian may be in conflict with the emphasis in the FLA on the best interest of the child, the otherprinciples established by Chapman remain valid. [66] In D.D. v. A.C., 2017 BCPC 5 , Judge Koturbash concluded that deference to the custodial parents' views is a relevantconsideration but the custodial parents' views cannot trump the best interest test.

[ 67 ] Accordingly, I will be evaluating M.F.'s guardianship application with only the best interests of J. in mind but I will be taking into account the views of his parents. BEST INTERESTS OF CHILD (J.) [ 68 ] To determine what is in the best interests of J., I will consider the following factors under s. 37(2) of the FLA : (

a) Health and emotional well-being of the child (J.) [ 69 ] Based on all the evidence, I have little doubt that M.F. was well-intentioned when she took steps early in J.'s life to assess his development, his manner of sitting and his possible seizure. Quite frankly, she is probably the one party most adept at dealing with medical professionals and monitoring J.'s development. The

Section 211 Report is dated now but it does comment on M.F.'s solid understanding of J.'s health historically. [ 70 ] However, M.F. only communicated her efforts to her daughter and not to the paternal side of the family. She never had a full and frank discussion about her concerns with J.'s primary caregiver, F.C., and this created mistrust between the parties. Even C.F. shares a certain distrust of her mother's role with J., and she wants her mother to simply be a grandmother to J. [ 71 ] Most importantly, I am satisfied that J. is a healthy young boy. Ms. C. and Mr.

K. have him regularly involved in [omitted for publication] in [omitted for publication], and he sees an optometrist and a pediatrician who confirms he is in good health. Given the poor communication and mistrust that exists in this case, it would not be tenable to give M.F. parenting responsibilities concerning J.'s health. Such an arrangement would also be very cumbersome given the distance between [omitted for publication] and [omitted for publication]. (

b) Views of the child (J.) [ 72 ] Given that J. is three years old it would not be appropriate to consider his views. (

c) The nature and strength of the relationships between the child (J.) and the parties [ 73 ] Upon review of all the evidence, I consider F.C. to be more than J.'s babysitter. She is his primary caregiver. Mr. K. is definitely a more involved father now, but F.C. cares for J. during his work hours and she takes J. to all his appointments. [ 74 ] M.F. has a bond with J. but it has diminished over time. She has seen much less of J. due to his move to [omitted for publication], and even earlier her contact time decreased while he resided in [omitted for publication].

M. considered the move to [omitted for publication] to be unilateral but she did not oppose a cancellation of a non-removal order which allowed for the move. Since then, there have been a myriad of reasons for limited contact with J., but the fact is her contact is now infrequent. [ 75 ] C.F. is strengthening her bond with J. but she recognizes that J. is doing very well in [omitted for publication] with his father and F.C. (

d) History of the child’s care (J.) [ 76 ] As already discussed, F.C. has been the primary figure in J.'s young life. Mr. K.’s role has become more important but trucking occupies much of his time. [ 77 ] M.F. was heavily involved in J.'s infancy, but her caregiving role quickly diminished following the November 4, 2016 court orders. For well over two years she has only had brief interactions with J. [ 78 ] Concerning C.F., her visits have usually been supervised but I see her visits evolving to unsupervised weekend parenting time. (

e) The child’s need for stability (J.) [ 79 ] In my view, J.'s [omitted for publication] home provides him with stability and the support of several caregivers. I cannot conceive of disturbing the status quo which has served him well. That said, I would be more concerned if F.C. were not directly involved in J.'s care. My order will address the importance of F.C.'s role in J.'s life. [ 80 ] I also agree that while J. has resided in [omitted for publication], he has been exposed to very little of the friction that was more evident in the past. (

f) The ability of the parties to exercise parenting responsibilities. [ 81 ] I am satisfied that Mr. K. can exercise his parenting responsibilities to J. so long as his mother remains actively involved in J.'s care. It may be that when J. reaches school age, F.C.'s role will be less crucial but, at this time, she is the central figure in J.'s life. [ 82 ] I expect that the paternal side of the family will continue to monitor J.'s development, consulting with professionals as necessary. I also expect that Mr. K. will continue to be careful not to expose J. to marihuana smoke.

J. has a very pleasant rural existence in [omitted for publication] but care must be taken to ensure his activities are safe and I recommend side netting for the trampoline. [ 83 ] M.F. is capable of parenting J., but the physical distance between her in [omitted for publication] and J. in [omitted for publication] makes it extremely difficult for her to be an active guardian.

More importantly, the friction between M. and the other parties makes any form of joint guardianship unworkable. [ 84 ] As commented above, C. is maturing as a parent and she recognizes that she will not be a primary caregiver of J. at this time.

(

i) The appropriateness of an arrangement requiring the parties to cooperate on issues affecting the child (J.) [ 85 ] Communication between M.F. and the paternal side of the family is poor and full of tension. Even M.'s relationship with C. is strained. I appreciate that the

Section 211 Report recommended shared guardianship between J.K., M.F. and F.C. However, the report writer thought it would be optimal if the three proposed guardians lived in close proximity to one another and that they built a" more cooperative dynamic". [ 86 ] Unfortunately, those ideals in the report have not been achieved. M.F. remains miles apart from the paternal family and I mean that both literally and figuratively. Shared guardianship of the type suggested in the

Section 211 Report is simply not feasible with the current situation. CONCLUSION [ 87 ] Having considered the best interests of J., I conclude that J. is presumptively a guardian and he should be J.'s caregiver on the clear understanding his mother will remain involved in J.'s day-to-day care.

In the event F.C. is no longer involved in caring for J., notice ought to be given to all other parties so they can reconsider their positions. [ 88 ] C. is also presumptively a guardian but with more limited parenting time. [ 89 ] M.F. will not be appointed a guardian but her contact time ought to be set out in general terms. I am satisfied that she was once very involved in J.'s care and it is in his best interests that she have some contact time which is not at the whim of other parties. I am concerned that gas money may be an issue here but it was Mr.

K. who chose to move to [omitted for publication], so my order will address some transportation cost issues. ORDERS [ 90 ] Based on the above an analysis, these are my orders under file 17079: 1. Upon the court being advised that the name and birth date of each child is as follows: J.K., born [omitted for publication]. 2. All prior orders in this proceeding are cancelled. 3. This court is satisfied that J.J.K. and C.T.F. are guardians of the child under s. 39(1) of the Family Law Act . 4. Under s. 40(3)(

a) of the FLA , the guardians will share equally all parental responsibilities for the child. 5. Under s. 49, if the guardians cannot agree on a parental responsibility, J.J.K. must make the decision and C.T.F. may apply for a review of that decision under s. 49 of the FLA . 6. J.J.K. will provide the primary residence for the child. 7. In the event F.C. is no longer involved in caring for J., J.K. will notify C.T.F. and M.M.F. of this change within one week of the change and this change will be considered a significant change in circumstances. 8. C.T.F. will have parenting time with the child as follows: (

a) One weekend per month from Friday evening to Sunday evening in [omitted for publication] B.C., on one week's notice to J.J.K. and M.M.F. J.J.K. shall be responsible to transport the child to and from this weekend visit unless otherwise agreed upon. (

b) Additional visits in [omitted for publication] or the Lower Mainland as agreed upon between J.J.K. and C.T.F. 9. M.M.F. will have contact time with the child for a minimum of two hours on the Sunday during C.T.F.'s weekend parenting time as set out in paragraph 8(

a) above. She may have such further contact as is agreed to by her, J.K. and C.T.F. 10. The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family and from discussions in front of the child concerning family issues or litigation. [ 91 ] Under file 17064, all court orders will be cancelled. So that order will be drafted in that file. [ 92 ] Finally, subject to comments from counsel, under file 18083, the brand new file, I suggest that it just be adjourned generally. (REASONS FOR JUDGMENT CONCLUDED)