J.M. v. C.M. and T.B., 2021 BCPC 379

Citation: J.M. v. C.M. and T.B. 2021 BCPC 379 Date: 20210611 File No: 17757 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M. APPLICANT AND: C.M. and T.B. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Applicant: S. Walter Counsel for the Respondent, T.B.: H. Lloyd Place of Hearing: Kamloops, B.C. Dates of Hearing: March 29, 30 and 31, 2021 Date of Judgment: June 11, 2021

[ 1 ] The Applicant in this matter is J.M. (she now goes by the name J.T. (“Ms. T.”)). She is the biological mother of the child, C. (“C.”) who at the time of the hearing was 9 years of age. The father, and guardian, of the child is C.M. (“Mr. M.”). He did not appear at the hearing of this matter. The Respondent T.B. (“Ms. B.”) is the paternal aunt, caregiver, and guardian of the child. [ 2 ] The parties agree that Ms. B. should remain as a guardian of the child, and for the child to primarily reside with her. I agree with this approach. Ms.

B. was an impressive witness, and more importantly, an extremely caring and child-focused parent. The child, and the biological parents, are lucky that Ms. B., and her family, were prepared to step into the void in 2014 and take over the care of the child. I have read the counselling records filed, and it is readily apparent, in spite of the challenges of raising C., and other matters requiring their time, that the Bs have dedicated themselves to acting in the best interests of C., and in finding and implementing methods to address C.’s challenges.

I am satisfied that they will continue to act in the child’s best interest, not only in the short term, but also the long term. C.’s best chance at learning how to address her own emotions, and leading a normal life, is in the B. family. In contrast, I find that since 2014, the biological parents have had significant limitations on their ability to parent the child. I find that many of C.’s issues are likely connected to her early childhood, and her interactions with her biological parents. [ 3 ] The issue in this matter was succinctly put as follows: what involvement should Ms. T. have in the child’s life.

The test for this issue, as in all matters involving parenting arrangements, is what is in the best interest of the child (s. 37 of the Family Law Act ( FLA )). Ms. B. says, in

summary, that it is in the best interests of the child for Ms. T. to have no contact with the child until a number of pre- conditions have been satisfied. I will give a full description of these terms at the end of this decision. In the alternative, Ms. B. says Ms. T.’s parenting time should be supervised, and only occur after certain conditions are met. Ms. T. says that the present parenting regime should continue, with the primary residence of the child with Ms. B., but that Ms. T. have a regime of parenting time, with holidays divided equally. [ 4 ] On the issue of parenting responsibilities, Ms.

B. says she should have sole responsibility of the child except that Ms. T. can receive disclosure pursuant to s. 41(

j) of the FLA . Ms. T. says that she should have parenting responsibilities on the Master Joyce model. [ 5 ] Finally, Ms. B. requests that Ms. T. be compelled to sign a consent to allow Ms. B. to obtain a passport on behalf of the child. Ms. T. agrees to this request, but wants to be advised of when and where C. will be attending out of the country. [ 6 ] I do not intend to review in detail the evidence of the Respondent and her witnesses, except as it relates to the best interest of the child and the issue of Ms. T.’s parenting time. Court Orders [ 7 ] A

summary of the relevant terms of prior court orders, is as follows: 1. March 12, 2013 – Judge Gill ordered that Ms. T. and Mr. M. be joint guardians and have joint custody of the child. - Ms. T. was to have the primary residence of the child with liberal and generous access to Mr. M.; - (it should be noted that at this time Ms. B. was not a party to this matter.) 2. April 8, 2014 – Judge Hoy made a final order that the March 12, 2013, Order be varied, and that Ms. T. and Mr. M. were the guardians of the child; and - Mr. M. was to have the sole parental responsibility of the child. 3.

April 30, 2019 – Judge Skilnick ordered that Ms. B. be added as a party to this matter. 4. December 2, 2019 – The parties by consent agreed that Ms. B. was a guardian of the child pursuant to s. 51(1)(

a) of the Family Law Act (“ FLA ”); and - Ms. T. was to have supervised parenting time with the child in Kamloops at such dates and times as could be arranged and facilitated by MCFD. General Circumstances [ 8 ] Ms. B. is the sister of Mr. M., and the primary caregiver of the child since the May long weekend of 2014. She is married to C.B. and has two children aged 9 and 7 at the time of the hearing. She is a registered nurse and is presently completing her Master’s degree. She hopes to become a nurse practitioner. Circumstances of the Child [ 9 ] I am advised by Ms. B. that Mr. M. removed C. from Ms.

T.’s care when he attended at her residence and observed drug paraphernalia, persons passed out, and the children uncared for. C. was non-verbal at the time she was removed from the care of Ms. T. [ 10 ] C. resided with the paternal grandparents for a short period of time. Mr. M. was unable to care for the child as he worked in camp in the oil patch. The grandparents were dealing with a number of their own health issues. As a result Mr. M. asked Ms. B. if the child could reside with her family. It was originally intended to be a short term placement but continues to today. [ 11 ] Ms.

B. describes C. as creative, curious, mischievous, and capable. She also is anxious and at times worries. She says she misbehaves more than most children. She says C., starting in Grade 1, has been accused of lying and stealing, and was caught trying to

light a fire at her school. [ 12 ] A MCFD BCFPI report was filed setting out answers provided by Ms. B. on C.’s behaviours. C. clearly has significant challenges. The report was completed for the purposes of assessing and obtaining supports for C. within the community. Ms. B. says that C. is doing better now. C. at the time of the report was having difficulty with school work, but Ms. B. says she is now doing better and in the latest assessment is considered average. [ 13 ] Ms. B. says her family is C.’s stability and support, and that C. is aware of this. C. calls her mom. C. refers to Ms.

T. as J., but is aware of who her biological parents are. Ms. B. says she has spoken to C. about having a relationship with Ms. T. Ms. B. says that C. has expressed ambivalence, not caring one way or the other, if she has a relationship with Ms. T. [ 14 ] C. was referred for a psychiatric consult, and a report of Dr. Hollman has been filed. The report sets out that C. has “a very complex clinical picture which is manifested by severe disruptive behaviours”. The doctor diagnosed C. with significant attachment injuries, ADHD, anxiety, learning disabilities, and PTSD.

The doctor observed that her behaviours at school and home “continued to worsen her social alienation”. Ms. B. says she was not surprised with the opinions expressed by the doctor. She also has observed that C. has significant attachment and abandonment issues. Mr. B. also advised that C.’s diagnosis of attachment issues is probably the most significant of her behaviours. Ms. B. says that since this report she has been able to access services for C., and place her on medication. She says she has been doing better as a result, and this was confirmed by Mr. B. [ 15 ] Ms.

B. says that C.’s older half-sister J1, and daughter of Ms. T., has been diagnosed with FASD. An IHCAN assessment has been filed which expresses this opinion. Ms. B. says that many of the symptoms set out in the report with respect to J1 are similar to the observations she had made with C. Ms. T. is doubtful of this assessment, saying that she only had three glasses of wine when she was pregnant with J1. [ 16 ] The Bs say that C. is very reactive to changes in her routine. Ms. B. describes herself as very structured and has created a routine for C.

She says that if this routine changes it really throws C. “out of whack” and she becomes quite flustered. Mr. B. observed that C.’s behaviours were erratic and tough, and became worse when Mr. M. was in and out of the child’s life. [ 17 ] Ms. B. described C. as being very possessive such that she had poor people skills. She says C. has difficulty keeping friendships. When she does find someone she becomes overwhelmed, overbearing, and the other child will withdraw. [ 18 ] C., since coming into the care of Ms. B., has received, and continues to receive, counselling from a number of different sources. Ms.

B. says that her and her family members have learnt techniques, form the counsellors in the last year, to regulate C.’s emotions and this appears to be helping. [ 19 ] The counselling includes COS, or Circle of Security, which is a theory that to support children in trouble they need to have a stable and predictable environment, at all times, and not only when things go bad. Ms. B. says her family has been using this theory with C. and it has been a “huge game changer”. She says the counselling is working and they are seeing improvements so they will continue to ensure C. takes counselling. Ms.

B. identified a number of other steps that they need to take for C. to continue to improve: this includes things such as respectful social engagements and learning social boundaries. [ 20 ] Ms. B. says that their counsellor Patricia was first against C. and Ms. T. having any contact with one another. Ms. B. says that Patricia has now advised her that Ms. T., or Mr. M., could have contact with C. but that it must occur in a controlled environment supportive of C. Ms. B. says that if Ms. T. is not consistent and reliable in her contact with the child then it will have a significant and negative impact on the child.

Mr. B. says that Patricia was not totally for or against contact occurring, but that he believes it will put a strain on their family. [ 21 ] Ms. B. says her husband at first considered himself as an uncle to C., but that since Mr. M. has removed himself from C.’s care, Mr. B. has taken over a parental and caregiver role to C. She says that if C. is having a problem, she will come to her, but if she is not home, she will go to Mr. B. for help. Mr. B. has been the primary caregiver to C. for the last year, as he is now working from home. He says that Mr.

M. became more neglectful in his care of the child beginning at the end of 2015, and at this time he stepped in to try and help with the care of the child. Ms. B. says that C. calls her husband “dad” at times, but she considers it a term of endearment, and that C. is not confused on who her biological father is. [ 22 ] Mr. B. says that C., on her own volition, started calling him dad in July of 2020. He says she asked him if she could and he told her that she could call him whatever she likes. Mr. B. says that C., from when they began caring for the child, has called Ms. B. “mom”.

Again this was the choice of C., and was not requested of her. [ 23 ] Mr. B. testified and confirmed much of what was said by Ms. B. He showed insight into his own behaviours and the effect they had on the child. He says that in the beginning he overreacted with the child, but through counselling he has learnt techniques to assist C. in calming down. He says they have learnt not to react quickly to her behaviours, now waiting for her to calm down before they speak to her. He says that within a few weeks of taking this approach there was significant improvement.

He says they have also worked hard with C. and have become more interactive and affectionate, and that the response from C. has been good. He says his relationship with C. has improved significantly including that they do more things together and communicate better. [ 24 ] Mr. B. has been through his own personal struggles, with the loss of a high paying job, and his abuse of alcohol. He has, however, addressed these issues, started his own business, and stopped drinking. Mr.

B. says that around 2015 he abused alcohol for a couple of months, then sobered up and has only had a couple of “bumps in the road”. [ 25 ] Ms. B. says she and her husband try and stress work ethic, honesty, and trust, but that the children should be allowed to make their own mistakes. The B. family is active with outdoor activities, and travel when able. She describes C.’s relationship with her cousins as a true sibling relationship with the dynamics that come with this. [ 26 ] Ms. B. says that Ms. T. has never provided them with any financial support for the child.

[ 27 ] The Bs clearly indicated their ongoing intention to care and support C. into the future. [ 28 ] Ms. B. says that she believes the parenting arrangements for Ms. T., if contact is allowed, should include the following: - supervised parenting time with a third party supervisor; - parenting classes; - abstention from alcohol and non-prescribed drugs; - on the issue of parenting responsibilities, she says she can keep Ms. T. informed, but that she is much better informed on any medical decisions; and - Ms. T. be required to consent to Ms.

B. obtaining a passport for the child, and to provide any executed documentation required. [ 29 ] On the last point, Ms. B. says she understood from Mr. M. that he was required to “pay her off” to obtain Ms. T.’s consent on the last passport application. [ 30 ] Ms. B. says that any contact she is to have with Ms. T. must be taken slowly, in baby steps, and that she remains scared as to what the outcome might be for C. [ 31 ] Ms. B. says that Ms. T. could be a parent to the child one day, but she first needs to get help. Ms. B. says Mr.

M. also needs to learn parenting techniques and skills necessary for parenting the child, before he again has contact with the child. [ 32 ] Mr. B. believes that neither of the biological parents should have contact with the child. He says that he has seen the damage their treatment of C. has caused to her. Circumstances of Ms. T. [ 33 ] Ms. T. has three children. She has an older daughter, J1, aged 12 or 13, C., and her young son J2, who was 17 months old at the time of the hearing. Ms.

T. acknowledges that J2 was removed from her care by the Director of MCFD in November of 2019. [ 34 ] At present, J2 continues in the care of the Director, and J1 lives with her father and siblings. Ms. T. presently does not see J1. [ 35 ] In 2013 Ms. T. says she became overwhelmed with caring for both J1 and C. and asked for help. She says at this time she was self-medicating to cope with her stress and responsibilities of being the primary caregiver to the children. She says she allowed a friend to live with her, and she began using drugs.

She agrees that the children were there to see her “downfall and instability”. She says she is ashamed of how she acted with the children, and she has to live with this. [ 36 ] She says Mr. M. removed C. from her care. Ms. T. described it as a kidnapping, but was unable to say whether the child was taken by Mr. M. to the offices of MCFD because of a concern with her care of the child. She says J1 was not removed by the Director, although there is some evidence that indicates this is not correct. [ 37 ] The MCFD reports indicate that the children were taken from Ms. T.’s care on December 1, 2013. Ms.

T. says she tried to clean up and become a “proper parent”. She says she thought it was in C.’s best interest for her to remove herself. She says her drug use and depression only became worse. She says she struggled with alcohol and crystal methamphetamine. She says between 2014 and 2015 things were “kind of a blur” as she struggled with drug addiction, and that her memory “was not linear”. [ 38 ] Ms. T. says that at the time that she was notified that she was pregnant with J2 she was actively using drugs. She described it as “quite a bit”. She says she struggled to clean up after this.

J2 was born two months premature. She says J2 had severe dips in his heart rate, and that at the time of his birth she was advised that he tested positive for amphetamine and was diagnosed with syphilis. She says she disputes J2’s positive test for amphetamines as she had not been using amphetamines in the two weeks prior to his birth. She was referred to a MCFD Report dated November 21, 2019, in which it is reported that that drug screening of Ms. T. and J2 both came back positive for amphetamines, and that J2 was showing signs of withdrawals. Ms. T. says she disputes this as it is not what she was told.

She says she was travelling and taking ephedrine. She says they treated J2 with morphine but that she wasn’t using opiates at the time. She says she argued with J2’s doctor and the morphine prescription was stopped. [ 39 ] In the MCFD report of April 21, 2020, a public health nurse stated that Ms. T. was no longer welcome at a doctor’s office as a result of abusive language. It is reported that Ms. T. called the doctor “a bitch”. The report says it was over an argument with respect to nutrition. Ms. T. says the doctor was trying to get her to give J2 peanuts. The report also expressed a concern that Ms.

T. had failed to follow up on blood tests for J2 with respect to the syphilis diagnosis. [ 40 ] Ms. T. says that J2 was returned to her. She says that she and a friend decided to go fishing and camping so they bought a tent in which J2 would be comfortable. She says they started camping in late spring or early summer, and did this for two months. [ 41 ] She says she then purchased a trailer and that Mr. M. spent time with them. She says that K., (the ex-partner of Ms. T.’s boyfriend at the time, C.B.), was punched and bear sprayed, and K.’s car was rammed. She says the players in this incident were Mr.

B., herself, and the ex-girlfriend. She says she was present but she did not punch K. She was unable to say who did. [ 42 ] In September of 2020 the MCFD reports indicate Ms. T. was of no fixed address, a flight risk, and was considering leaving the province with J2. Ms. T. says that fleeing with her children was not a good option, as this was not in their best interests, but admitted she had considered this. She says she was transient.

The social workers report states that she was abusive while in the presence of the child, and that the medical professionals were having great difficulty in getting her to address J2’s medical needs and follow through with their recommendations. Ms. T. denies this, saying that it was not safe for them to attend a clinic with others.

[ 43 ] Ms. T. says she was using cocaine in September 2020, but says a friend was looking after the child at the time. She did not provide to the social worker the phone number of this friend, saying at trial that her phone died. The report indicates that she refused to provide this number. Ms. T. was requested by the social worker to take a drug test, but Ms. T. refused. [ 44 ] Ms. T. admitted that a friend of hers overdosed in her car when J2 was present. [ 45 ] Following this incident Ms. T. says she moved back to Chilliwack.

She says she currently is employed as an outreach and harm reduction worker. [ 46 ] Safety plans were entered between Ms. T. and MCFD with respect to the child J2, on September 18, 19, and 22, of 2020. An Interim Supervision Order was made on October 14, 2020. On December 4, 2020, J2 was removed from Ms. T. on the allegations that she had breached the Supervision Order by failing to provide five days written notice of moving, had not had J2 follow through with medical assessments, and not providing random drug screens. The five day notice and drug screen requirements were must remove clauses. [ 47 ] Ms.

T. says she was told by a social worker that J2 was removed because she had not completed the random drug testing required of her. She denies this occurred and blames the Kamloops MCFD office for failing to forward her file to Chilliwack. She says she is working hard to have J2 returned to her. On her sobriety she says there has been “bumps in the road”. [ 48 ] She says at the time of J2’s removal she “wasn’t using every day”. She says she was intoxicated on drugs when caring for J2, on occasion, but never used in front of him.

She admitted to telling the social worker in the fall of 2020 that drug use was normal and should not be a concern. She said at the hearing she now agrees that it is not normal and should be a concern. She says that in early January of 2021 she had a slip, and that this was the last time she had used “hard drugs”. [ 49 ] The MCFD records indicate that Ms. T. was adamant, when J2 was removed, that she had done nothing wrong. She said at the hearing that she believes MCFD should have been involved, but that it was unnecessary for them to remove the child.

She says the social worker, on whose direction the removal occurred, was unprofessional and not doing his job. [ 50 ] Ms. T. says on December 26, 2020, her mental health was not good. Her brother and girlfriend, who at the time had J2, met with Ms. T. At one point her brother’s girlfriend asked her if she did not want to interact with the child. Ms. T. says she “lost it”, handed J2 to her brother, and left the residence. She says she was drinking during this visit but denied being drunk. She says she then walked form Maple Ridge to Mission to a friend’s place, took LSD, and then went back to her residence.

She says she then tried to hang herself. She describes this as her rock bottom. It is concerning to the court that she then blamed her children saying that this is the emotional state her children put her in, explaining she acted this way because she loves them. [ 51 ] Ms. T., following her suicide attempt, says she sought psychiatric help, but did not receive it. She says she was unable to remain in hospital to get this help as she was required to provide a drug test, and it was more important to get her son back. She says she missed the drug test.

She admits she was still struggling with drug addiction at this time. [ 52 ] Ms. T. says she suffers from a histrionic personality disorder, PTSD, and depression. She says she has taken cognitive behaviour counselling, but in cross it became apparent that she did this on her own and with a probation officer in 2018. Her evidence was she went through a book “with him”. She says she has attended detox, and substance abuse awareness. She says she also attends N.A. and A.A. every day. She says she has been on a waiting list for months for counselling. She did see a counsellor in her detox program, but no longer does.

She said she did not because of her visits with her son, but then acknowledged she disagreed with the counsellor’s information on harm reduction. [ 53 ] She agreed that she told her social worker that she was a problem drinker, but then tried to explain that when she is high she hates herself so she drinks and this makes her feel better about herself. She says she is not an alcoholic, as she can stop drinking, and when she is not high she does not drink to excess. [ 54 ] Ms. T. says that she saw the child after Mr. M. removed the child in 2014. This occurred when the child was spending time with Mr. M. Ms.

T. only saw the child in these circumstances, and rarely contacted Ms. B. directly to see the child. Ms. B. was not aware of the child seeing Ms. T. until just recently when this was disclosed. [ 55 ] Ms. T. says she only saw C. on the “whim” of Mr. M., when “he thought he could get something from me”. She says this occurred on an irregular basis, estimating once every two months for one or two nights. She says that when the Bs moved to Kamloops her contact with the child became more frequent, including phone calls, and less frequent in person contact once C. began school. Ms.

T. was unable to say when C. began school. Ms. T. says that she thought it was best to keep her contact with C. hidden from the Bs as Mr. M. told her not to “make waves”, and she thought it would have a negative impact on C. for her not to have contact with her biological mother. [ 56 ] Ms. T., in her direct said that during some of her meetings with Mr. M. and the child that Mr. M. was drinking “hard”. She says she remained sober. In cross she said that Mr. M. was sober when the three of them were together. [ 57 ] Ms.

T. says her contact with C. became minimal when she began working with a travelling carnival company in 2017. She says she has not seen C. for three years, then said the last time she saw her was in 2017. She says her last phone call with C., before the June 2020 call, was in 2018. [ 58 ] Ms. T. says she really tried to address her struggles with addictions. She says she loves her children, but believes, quite adamantly, that children should be able to “self soothe”, that it is good for children to cry. She says that children need to exercise their lungs, and that this teaches independence. Ms.

T. later said that she does not know what a normal mother looks like, as she does not know her mother and she has not seen her step-mother since she was 13. [ 59 ] Ms. B. testified that she was concerned with a recent contact in June of 2020 with Ms. T. Ms. T. telephoned her with what Ms. B.

understood was a concern with respect to Mr. M. She says Ms. T. then unexpectedly brought up that she wanted to have contact with C. Ms. B. allowed for this supervised telephone contact to occur. Ms. B. became very concerned when she overheard Ms. T. tell C. she should see Ms. T.’s new baby, which then became a new focus for C. Ms. B. was also concerned that Ms. T. minimized C.’s challenges when she advised her that all of her problems were fine and that she had many of the same things. Ms. B. says that C. became quite withdrawn after this call, but then came back around. [ 60 ] The Bs testified that Ms.

T. told them at one point that she was watching them, and was going to burn their house down. Ms. T. denies saying this. The police were notified and a no contact order was imposed. Ms. B. says she is scared of Ms. T. having contact with C., because she feels that Ms. T. is unstable, and suffers from mental health challenges. Ms. T. says she remembers threatening the Bs, because they told her she could see the child, and then withdrew this agreement. She says as a result she told Ms. B. that she was going to drive through the threshold of their home, and asked if she could get out of the way. Ms.

T. says she felt entitled to see C. She was asked in cross if this would have been frightening for C. She says she cannot remember what she was thinking that night. Ms. T. says she was arrested under the Mental Health Act , but was able to manipulate the nurses into releasing her. She says at this time she was very sick, regularly using drugs, and “don’t believe I was myself”. [ 61 ] Ms. T. has not had any contact with C.’s professional supports, such as her counsellors and doctors. [ 62 ] Ms. B. says that as far as she knows C. does not have a relationship with Ms. T. Ms. B. says she had no contact with Ms.

T. in the eight years the child has been with the B. family, except for a few text messages, Facebook messages, and the recent telephone conversation in June of 2020. She says that C. does not bring up Ms. T., except on random occasions, and doesn’t say much about her. Mr. B. confirmed the above, saying that C. has not talked about her mother for a very long time, and that he does not believe they have a relationship. [ 63 ] One of the messages sent by Ms. T. to Mr. B. was filed. It appears Ms. T. was trying to arrange a Christmas video call with C. This message includes the following quotes, from Ms.

T.: - This attachment shes (sic) [C.] developed for you is unhealthy as she HAS a mother and father you’re not her mom n dad. -… holding me back from her based on my past is petty and childish and if you guys want a girl…go adopt one. (Ms. B. then responded telling her how she could do this as per the court order, and not to contact Mr. B.). [ 64 ] Ms. T. responded, including stating the following: -“…get your own daughter”. [ 65 ] Ms. B. again requested that Ms. T. stop messaging her husband, to which Ms. T. said “Fine enjoy the next lawyers bill bitch”. Ms.

T. on cross said that she felt the Bs had spent a lot of money on this case because of personal reasons, and not because it was in the best interests of the child. [ 66 ] Ms. T. says this was shortly after J2 was removed by the Director and it was a hard time for her. She says she was desperate for her children and was concerned that she was going to be alone again at Christmas. She says she just wanted to tell C. that she loved her. [ 67 ] The MCFD records indicate that Ms. T., while pregnant with J2, was using “illegal street drugs and was drinking alcohol”.

These records also indicate that J2, when born, was in a fragile medical state with syphilis and was required to withdraw from drugs. J2 was born on [omitted for publication], 2019. Ms. B. was referred to the MCFD records of November 17, 2020, in which a caller from a child development centre reported Ms. T. saying, with respect to J2, that “he ignores me”, and “he’s just a brat”. Ms. B. says that if this was said to C. she would be devastated. [ 68 ] Ms. B. also referred to a Facebook post in the week before the commencement of this hearing, in which Ms.

T. says that she still likes Bailey’s in her coffee and that “I got into recovery for DRUGS!” [ 69 ] Ms. T. was given, by consent, supervised parenting time through MCFD as referred to above in the Order of December 2, 2019. Ms. B. says she was advised by MCFD that Ms. T. would have to ask for the supervised parenting to occur, and if she did so they would ensure this happened. Ms. B. says she is not aware of Ms. T. making any attempts to

schedule parenting time with C. Ms. B. says she is aware of the restrictions from COVID 19, but that she was not aware of any attempts by Ms. T. to arrange a zoom or other social media contact with the child. [ 70 ] Ms. T. acknowledged that she has a criminal record for driving while prohibited, fraud, and breach of bail. She says she was incarcerated in 2018 for 40 days. [ 71 ] Ms. T., to her credit, says she is grateful for Ms. B. caring for the child, and that she doesn’t disagree with anything she has done for the child. She says she only disagrees with Ms. B. having “cut off” her contact with her child.

She says she does not agree with this. She says, however, that Ms. B. has given C. opportunity, and has done what she would like to do as a parent. [ 72 ] Ms. T., as noted before, lives in Chilliwack. She says for her to visit C. she would take the bus, or get a ride from a friend. She says she can contact C. by Zoom, or through other platforms. [ 73 ] D.M., the mother of Ms. B. and Mr. M., and grandparent of C., testified. She described a difficult relationship with Ms. T., in which Ms. T. restricted her contact with the child. Circumstances of Mr. M. [ 74 ] Mr. M., after his removal of the child from Ms.

T., would see the child during his time away from the oil patch. Ms. B. says that

the child was very bonded with her father, and that she becomes quite upset when he was leaving for work. [ 75 ] Ms. B. says that the last time she saw Mr. M. was in March of 2020. She says that Mr. M. began a relationship with an individual with a significant drug use issue. She says Mr. M., in March, was found by his employer to be using drugs at work. As a result he returned to Ms. Bs residence. Ms. B. says she found drugs in his room and asked him to leave. She has not seen him since. She says she believes that he continues to work up north, and does see their parents. Ms.

B. advised that she had been provided an Affidavit sworn by Mr. M. that indicates he supports the child continuing to reside with Ms. B. This Affidavit was not admitted as evidence, as counsel disclosed it at the commencement of the trial. I did allow Ms. B. to refer to the information included within the Affidavit as to her understanding of the position of Mr. M. with respect to the issues before the court. [ 76 ] Ms. B. says that she tried to co-parent the child with Mr. M., until March of 2020. She describes this arrangement as “up and down” and that he was a “lackadaisical parent”, and spoiled C.

She says she believes he has stayed away from C. because he is not in a good position at this time. Ms. B. says that Mr. M. would make promises to C. that he was unable to keep. She says when Mr. M. failed to deliver on his promises to C. that the child was devastated. She says she believes, for these reasons, that he has not contacted C. for the last year. She says she believes it is not in the best interests of the child to see her father until he learns parenting skills. [ 77 ] Mr. B. describes Mr.

M. as a terrible dad, because he made and broke too many promises, would not show up when he said he would, and they were left to pick up “the pieces”. Law [ 78 ] The sections of the Family Law Act relevant to the application before me, are as follows: Best interests of child 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; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

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. Parenting arrangements 40

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (

a) one or more guardians only, or (

b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and withoutlimiting that, the following must not be presumed: (

a) that parental responsibilities should be allocated equally among guardians; (

b) that parenting time should be shared equally among guardians; (

c) that decisions among guardians should be made separately or together. Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent andlocation; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is anIndigenous child, the child's Indigenous identity; (

f) subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments forthe child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. Parenting time 42

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibilityof making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Exercise of parental responsibilities 43

(1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child.

(2) If a guardian is temporarily unable to exercise any of the parental responsibilities described in

section 41 (a), (c), (d), (

f) to (

j) or(l) [parental responsibilities], the child's guardian, in writing, may authorize a person to exercise, in the best interests of the child, one ormore of those responsibilities on that guardian's behalf while the guardian is unable to do so. [79] The Applicant has referred me to the following cases: 1. C.A.J. v. N.J., 2014 BCSC 279 , 2014 B.C.S.C. 279; 2. J.D.S. v. D.Y.C.P., 2014 BCSC 1577 , 2014 B.C.S.C. 1577; 3. K.M.M. v. D.R.M., 2014 BCSC 569 , 2014 B.C.S.C. 569; and 4. F.K. v. M.K., 2010 BCSC 563 , 2010 B.C.S.C. 563. [80] Mr. Justice Bernard in C.A.J. v.

N.J. refers to s.37 of the FLA, and concludes that the best interests of the child is the onlyconsideration in determining parenting arrangements (para. 93). This principle is applied in J.D.S. v. D.Y.C.P. and K.M.M. v. D.R.M. [81] Madam Justice Griffin (as she then was), in F.K. v. M.K., discussed orders for supervised parenting time. At paragraph 149 sherefers to, and quotes the case of V.S.J. v. L.J.G., (ON SC), [2004] O.T.C. 460 (S.C.J.). The difficulty with F.K. v.M.K. is that it pre-dates the Family Law Act, and specifically the best interests of the child as defined in s. 37.

Decision and Analysis [ 82 ] I will first address the issue of parental responsibilities for the child. [ 83 ] Ms. B. asks that she be given the sole parental responsibilities of the child. Ms. B. agrees that Ms. T. can request and receive third party records relating to the health, education or other information respecting the child. [ 84 ] Ms. T. asks the court to provide her with shared parenting responsibilities with Ms. B., but accepts that if the parties are unable to agree on a decision that Ms. B. could make that call, with Ms. T. being at liberty to apply to the court if she felt Ms.

B.’s decision was not in the child’s best interest. [ 85 ] I have considered the circumstances set out above, and order that Ms. B. should have the sole parental responsibilities for the child. I find that it is in the best interests of the child for Ms. B. to make all decisions respecting the child. The evidence before the court is that the B.’s have consistently made decisions, and acted on those decisions, with the primary goal of what was in the best interests of the child. There is no evidence that indicates they will not continue to do this in the future. [ 86 ] I find that Ms. T., and Mr.

M., on the other hand, for the reasons set out above, have not acted in the child’s best interest. There is no legal principle that a biological parent should have shared parental responsibilities of the child. The only test that I must consider is what is in the best interests of the child. I find that the B.’s energy should continue to be focused on making decisions in the best interests of the child and acting on those decisions. The evidence indicates that this requires a significant amount of the B.’s time and energy.

I find it is not in the best interests of the child to add to their duties the requirement that they comply with a regime of shared parenting responsibilities with Ms. T. The only exception is that Ms. T. will have the right to request and receive from third parties “health, education, or other information respecting the child” (s. 41(

j) of the FLA ). [ 87 ] I will next address Ms. T.’s application for parenting time with the child. Ms. B. applies for Ms. T. to have no parenting time with the child C., until Ms. T. has satisfied certain pre-conditions. In the alternative she says that Ms. T.’s parenting time should be supervised and only once every two weeks. She also asks for terms requiring Ms. T. to abstain during parenting time, that her parenting time be discontinued if C.’s mental health or behavioural challenges increase and C.’s medical professionals recommend this discontinuance. [ 88 ] Ms.

T. would like equally shared holiday time with the child, but accepts that this would likely require a transitional period. She would also like to have regular zoom time with C., suggesting this occur at 4:00 p.m. every Sunday. Ms. T. argues that it is in the best interests of the child for her to have contact. She says that the Bs have put up a barrier to her having contact with C. She feels she is a significant factor in the child’s life because she is the biological mother and that it is important for the child to get to know her mother. [ 89 ] I find for Ms.

T. that her application is not about the best interests of the child, but rather it’s about her own interests and needs. I make specific reference to Ms. T.’s attempts to speak with the child at Christmas of 2020. Ms. T. did not act in the best interests of the child, but rather in her own interest and how it would affect her if she did not speak to her children at Christmas. This was about Ms. T.’s needs, and not C.’s. [ 90 ] Credibility is an issue in this hearing. I accept the evidence of the Bs in circumstances where there evidence conflicts with the evidence of Ms. T.

I find that she was prepared to tailor her evidence to minimize her own blame for her lack of involvement in her children’s lives. I find that she is completely at fault for her lack of contact with C., starting with her own neglect of the child resulting in the removal of the child from her care, and continuing with her failure to then take timely and positive steps to learn how to parent in such a way that her contact with C. would be in the child’s best interest. It has been seven years since the child was removed from Ms.

T. [ 91 ] Despite this, I must still ask, whether it is in the best interests of C. to have contact with Ms. T. Is contact between Ms. T. and C. in the child’s best interest, or will it negatively affect the child? I must consider the circumstances of the child, and the effect on the child that any contact by Ms. T. may have.

Section 37 of the FLA states that in determining the best interests of the child I must consider “all of the child’s needs and circumstances”, including the factors set out in (

a) through (j). [ 92 ] It is not a given or an absolute that it is always in the best interest of a child to have contact with a biological parent. [ 93 ] The child’s needs are significant in the matter before me. The Bs have obtained the necessary training and counselling to address these issues in a way that is in the best interests of the child. Ms. T. has not received any training or counselling in this area. [ 94 ] The court is concerned that Ms.

T. has displayed an unwillingness to accept medical advice, believes her opinions are more valid than the professionals, and has not followed up with medical investigations with respect to the child J2. This does not bode well on the issue of whether she is prepared and able to follow the instructions and advice of medical professionals with respect to the care and best interests of C. [ 95 ] The question I must ask is whether limited and restricted contact between the child and Ms. T. is in the child’s best interest. I find that at this time it is not. The evidence at this time is that Ms.

T.’s own challenges would be more disruptive to the best interests of C. I find that C. requires stability and consistency in her life for her to continue to make progress. The Bs have done their very utmost to provide these to C. At this time Ms. T. has not proven any willingness to act in a similar manner, despite the child’s removal from her seven years ago. [ 96 ] The court is not prepared, in the circumstances at present, including the history of the relationship between Ms. T. and the child, and Ms. T.’s own personal struggles, to allow for parenting time between the child and Ms. T.

I find that there is a significant likelihood that any such contact would be harmful to the child. I have considered whether even limited contact such as parenting time through Zoom, or some other social platform, would be in the best interest of the child. I find that the risk of this not being in the best interests of the child is significant. I come to this conclusion based on the history of Ms. T., and the significant needs of the child, that I have detailed above. [ 97 ] I am also satisfied that if Ms. T. decides to carry through and receive the necessary assistance to address her own challenges, and

to learn how to act and implement tools in the best interests of the child, that some contact between her and the child is possible in the future. Ms. T. must show consistency in her efforts to act in the best interests of the child, which to this point in time has clearly been lacking. I find, however, that no such contact should occur until Ms. T. has taken the necessary steps for this court to conclude that the risk of adding this potential destabilizing factor into the child’s life is worth the risk.

To be clear, I find at this time such a risk is not in the best interests of the child. [ 98 ] I am satisfied that Ms. B. will act in the best interests of the child if it becomes apparent that it is best for the child to have some form of contact with Ms. T. or Mr. M. The efforts of Ms. T. and Mr. M. to become better parents to C. will determine whether the risk of such contact is minimized to a degree that such contact is in the best interests of the child. I find that Ms. B. has always acted in the best interests of the child, including the limits of contact she has placed on both Mr. M. and Ms. T.

I am satisfied that Ms. B. has taken into consideration, and will continue do so, the opinions of expert and medically qualified practitioners on this issue. As such, I will allow contact between the biological parents and the child, but at the sole discretion of Ms. B. [ 99 ] Ms. B. seeks a term requiring Ms. T. to sign her consent to the B’s application for a passport for C., and that they would advise Ms. T. when they are taking the child out of the country. Ms.

T. appears to agree with this term, and I will make this a further term of this order. [ 100 ] The Court Order will be final, and will include the following terms: 1. Upon the Court being advised that the name and birth date of each child is as follows: C., born [omitted for publication]. 2. Under s. 40(3)(

a) of the FLA , T.B. will solely have parental responsibilities for the child as set out in s. 41 of the FLA . 3. Under s. 40(2) of the FLA , J.T. and C.M., shall be able to request and receive from third parties health, education or other information respecting the child, except in relation to health care provided pursuant to s. 17 of the Infants Act . 4. The term of the Order of the Honourable Judge Hoy of April 8, 2014, providing sole parental responsibilities to C.M., is terminated. 5. T.B. will have all the parenting time with the child. 6.

J.T., and C.M., may have parenting time with the child, but any such parenting time, if at all, including the dates and times, and whether parenting time will be supervised and by whom, will be at the sole discretion of T.B. 7. T.B. may apply for a passport for the child, and J.T. and C.M. must cooperate with and provide to T.B. all necessary documents as may be required to allow the child to travel. _____________________ R.C. Dickey Provincial Court Judge