K.K.M. V. T.J.S., 2021 BCPC 316

Citation: K.K.M. V. T.J.S. 2021 BCPC 316 Date: 20211210 File No: 17965 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.K.M. APPLICANT AND: T.J.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. PHILLIPS Appearing on her own behalf: K.K.M. Counsel for the Respondent: D. Gagnon Place of Hearing: Kamloops , B.C.

Dates of Hearing: July 27, 28, 29, 30 and September 29, 2021 Date of Judgment: December 10, 2021 Introduction [ 1 ] This is K.K.M.’s application for primary residence of the two youngest children L. and W. The Respondent, T.J.S. is the biological father of the children and resides in Kamloops, British Columbia. K.K.M. resides in the Lower Mainland. [ 2 ] After their parties separated in 2019, the children resided with T.J.S. in Kamloops as K.K.M. struggled with alcohol addiction and mental health issues. During this time of instability, T.J.S. kept K.K.M. informed and involved in the children’s lives.

In December 2019, K.K.M. moved on her own to the Lower Mainland and started up a relationship with a new partner and mutual friend, Mr. H. [ 3 ] The parties had an informal arrangement where the children would spend certain weekends with K.K.M. in the Lower Mainland then be returned to T.J.S. in Kamloops. [ 4 ] On August 12, 2020 during agreed up parenting time, K.K.M. removed the children from T.J.S.’s care and relocated them to the Lower Mainland. Prior to this date, the children were in the primary care of the T.J.S.

This was a relocation of the children without notice. [ 5 ] K.K.M. removed the children based on her belief that T.J.S. inappropriately touched the children. Eventually, a Ministry, RCMP and BC Children’s Hospital investigation and assessment cleared T.J.S. of any wrong doing.

The RCMP investigation included a lie detector test that T.J.S. consented to. [ 6 ] At a December 9, 2020 interim hearing I granted T.J.S.’s application to have the Children returned to his care however, the return was not to occur until the summer of 2021 to allow the Children to complete programs K.K.M. had enrolled them in. [ 7 ] The issues to be decided are primary residence. Specifically, whether it is in the best interest of the children to reside primarily with T.J.S. in Kamloops or with K.K.M. in the Lower Mainland?

Essentially, the matter to be decided is whether the Children ought to be relocated to the Lower Mainland to reside with K.K.M.? Background [ 8 ] The parties have four children. The youngest, L. and W. are the subject of this hearing. The two older children are in the Lower Mainland. The eldest C., is presently in the care of the Ministry in the Lower Mainland and as I understand the evidence of K.K.M., this child struggles with a “massive drug dependency. He is addicted to meth and heroin”.

The second eldest, K., resided with T.J.S. during the period of instability then moved to the Lower Mainland with K.K.M. in January 2020. This child was and continues to struggle with her mental health. T.J.S. supported the move as the child was adamant about residing with K.K.M. While T.J.S. is not the biological father of K., he is the only father K. has known. He honours and respects K.’s decision to live with K.K.M. [ 9 ] The parties were married on October 2008, separated January 1, 2019 then continued to live together until they went their separate ways in May 2019.

The children remained in the primary care of T.J.S. during this time as K.K.M. was struggling with mental health issues including depression and anxiety which in her evidence, were contributing factors to her alcoholism. During this period, K.K.M.’s time with the children was sporadic. Eventually, she checked into a detox centre in Kamloops in October of 2019. During this period of instability, the parties moved to Kamloops however, by December 2019, K.K.M. decided to move back to the Lower Mainland on her own.

K.K.M., in her evidence used the term “hot mess” to describe her situation around this time in her life. [ 10 ] In Kamloops, T.J.S. connected the children with their Metis heritage and accessed services at Lii Michif Otipemisiwak (LMO), a Metis organization in Kamloops. One of the last services provided was a picture book to help the children come to terms with their mother’s decision to move out of the home and community. T.J.S., his parents and the children are of Metis heritage.

K.K.M. is not Metis however, she did connect the children with Metis resources in the Lower Mainland while they were in her care. [ 11 ] While K.K.M. was dealing with her mental health issues, detoxing and relocating to the Lower Mainland, T.J.S. cared for the children full time. He accommodated K.K.M.’s requests for parenting time which was sporadic. During the period March to July 2020, K.K.M. had approximately 40 days of parenting time. As well, she was given opportunities to communicate with the children by phone or electronic means.

For the most part, the parties were cooperative in their efforts to keep the children connected with both parents. [ 12 ] Prior to K.K.M. moving the children to the Lower Mainland in August 2020, the children developed a close bond with their paternal grandmother, B. who assisted in their care. After being relocated to the Lower Mainland, the children had limited to no contact with their grandmother, B. [ 13 ] After the December 2019 separation and upon relocating to the Lower Mainland, K.K.M. moved several times but has since settled in Surrey with Mr. H. in a two bedroom apartment. [ 14 ] Mr.

H., works full time as a store manager in the Lower Mainland and is relied upon by the parties to handle the pick-up and drop-offs as T.J.S. had no vehicle and K.K.M. had no driver’s license. The Children appear to have a good relationship with Mr. H. and he appears to be supportive of their needs, including the needs of K.K.M. Mr. H. is gainfully employed, is engaged in the children’s lives, and is active in the community as an umpire for youth softball. [ 15 ] Mr. H. is no stranger to the parties. He has known K.K.M. for 11 years. They first met in 2009 when the parties had separated briefly. At one point, Mr.

H. was involved in a three way intimate relationship with K.K.M. and T.J.S. however, this relationship was short-lived. Mr. H. reached out to K.K.M. around June 2019 after K.K.M. and T.J.S. separated again in hopes of commencing a romantic relationship with K.K.M. In January 2020, Mr. H. drove to Kamloops to pick up K.K.M. and moved her to the Lower Mainland with him. Mr. H. and K.K.M. have been together since.

[16] The children have been introduced to Mr. H.’s mother, Ms. B., who was a witness for K.K.M. K.K.M. and the children havebeen well received and accepted by Mr. H.’s family in the Lower Mainland. [17] T.J.S. did not have any contact with the children for a four to five month period from August 12, 2020 to sometime aftercompletion of the investigations into the inappropriate touching complaint filed by K.K.M. From the December 2020 interim hearing toJune 30, 2021, T.J.S. had parenting time on alternate weekends. [18] The children returned to their father’s care in July 2021.

This was around the time T.J.S. and the children had to evacuate fromthe [omitted for publication] area in Kamloops due to the threat of a fire burning nearby. T.J.S. was putting children to bed and heardvehicles honking outside. He observed red glow of fire with lots of smoke. He tried calling B. to no avail. Fortunately, he got a call froma friend who came to pick him and the children up and drive them to Chase, British Columbia to be with B. On route to Chase, T.J.S.sent a text to K.K.M. to advise her of the situation. T.J.S. and the children returned home the following day.

Shortly after getting backinto their apartment, the children were asking for orange juice. T.J.S. realized they needed milk as well and decided to make a quick rundownstairs to a convenience store in the same building. He instructed the children to stay put and to not let anyone in. He was gone forabout two minutes. The children talked to K.K.M. that same night and told her about T.J.S. going to the store earlier. Some time later,Mr. H. and K.K.M. felt compelled to call the Ministry about this incident. A social worker called T.J.S. and attended at his residence thenext day accompanied by another social worker.

The social workers investigated and concluded that the children’s safety was notcompromised and no action was taken. K.K.M. confirms receiving a follow up letter from the social worker involved stating that theinvestigation was concluded. [19] Since their return to Kamloops in July, T.J.S. registered and enrolled the Children in the [omitted for publication], a schooloperated and administered by [omitted for publication] with the mandate: “We believe the union of Aboriginal tradition and academicexcellence can live in one house in harmony for the betterment of all.

The future of holistic native education lives here in this house, ourhouse.” The children are learning Secwepemc in school and Metis at home. [20] Prior to the children returning to Kamloops, K.K.M. arranged for a dental assessment which disclosed a need for certain dentalwork. T.J.S. is cognizant of the need to bring the children to the dentist however, at the time this hearing concluded in September 2021,he did not have the necessary funds. Both parties derive their income through government funded disability and child tax. Child tax ispaid to the parent with day to day care of the children.

This changed during 2020 and 2021. An anonymous person called in andcomplained about T.J.S.’s receipt of child tax during a period when the children were removed without notice and in the care of K.K.M.This resulted in a claw back of child tax, when the children returned to T.J.S.’s care in July. T.J.S. intends to bring the children to adentist when the child tax is reinstated. The alternative is for K.K.M. to follow up with the dentist she visited prior to the childrenreturning to Kamloops.

Relocation and Best Interests of Child [21] This matter arose initially as application for guardianship and parenting time, then turned into a relocation without notice of thechildren to the Lower Mainland. At an interim hearing, the court granted T.J.S.’s application for the return of the children to Kamloops atthe end of the school year. [22] This hearing is a continuation of K.K.M.’s amended application to have the children live primarily with her in the LowerMainland.

K.K.M. continues to reside in the Lower Mainland and continues to seek primary residence, child support and spousal support. [23] By interim order, the children are now living in Kamloops with T.J.S. in his two bedroom apartment and enrolled in the [omittedfor publication]. The children’s grandmother, B. sees the children daily during the week as her vehicle is used to transport the children toand from school. [24] The central legal issue to be tried is whether it is in the best interest of the children to reside primarily with T.J.S. in Kamloops orin the Lower Mainland with K.K.M.

In answering this question, the court is mindful of the interim decision returning the children toKamloops from the Lower Mainland based on an application of the best interest of the child test in those proceedings. Law [25] At the time of separation in 2019, the parties had an informal arrangement where the children resided primarily with T.J.S. inKamloops and K.K.M. had reasonable parenting time. From August 2020 to December 2020, T.J.S. had no contact with the Children andthey resided primarily with K.K.M. in the Lower Mainland.

By interim order from December 2020, the children were returned to T.J.S.in Kamloops commencing July 1, 2021 with parenting time on alternate weekends from Dec to June. [26] There is a divergence among our courts in British Columbia as to whether an interim order falls within the meaning of “an order”under s.46 (1)(

a) of the FLA and in doing so, triggers the application of Division 6 of

Part 4. The tests vary depending on whether it is arelocation per

section 46 or 69. Fortunately, our Court of Appeal in the decision K.W. v L.H., 2018 B.C.C.A. 204, answered this question.At paragraph 83 of K.W. v. L.H., the court cites S.J.F. v R.M.N., 2013 BCSC 1812 , 2013 B.C.S.C. 1812 and specifically para 60of the S.J.F. decision which read: [60] On this basis, I concluded that the applicable time period for determining which

section applies is the situation as it exists at thetime of the claim or application. Orders issued after the commencement of the proceedings do not change the nature of the claim beingmade. [27] Then at para 92, the Court of Appeal says: [92] I agree with Justice Punnett and adopt his analysis set out at paras. 54–60 of S.J.F. reproduced above.

Absent an existing agreementbetween the parties, when an initial application is brought for an order respecting parenting arrangements under s. 45 and a guardianindicates in his or her pleadings or by notice in writing of an intention to change the child’s residence, s. 46 applies notwithstanding thatan interim order is made in the course of the proceedings. To the extent that L.J.R., A.J.D., Pepin, and Wong suggest otherwise, those

cases were wrongly decided and should not be followed. [ 28 ] The situation in the K.W. and S.J.F. decisions are similar to the case before me in that an interim order was made after a removal without notice. The order created some stability for the family in the interim as the parties continued to advance their particular interests in having the children reside with them in their respective locations. For the parties appearing before me in this case, the situation as it existed at the time of application was fluid. There was no agreement and no order.

Shortly before and for some time after separation, K.K.M. was struggling with addiction and mental health issues, requiring T.J.S. to step up and care for the children, which also meant ensuring the children had continued contact with K.K.M. In the circumstances, I find this matter falls within division 2 and specifically, per s. 46 of the FLA , which reads: [ 29 ] Changes to child's residence if no agreement or order: 46.

(1) This

section applies if all of the following circumstances exist: (

a) no written agreement or order respecting parenting arrangements applies in respect of a child; (

b) an application is made for an order described in section 45(1)(

a) or (b) ; (

c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian. (2) to determine the parenting arrangements that would be in the best interest of the child in the circumstances set out in subsection (1) this section, the court (

a) must consider, in addition to the factors set out in section 37(2), the reasons for the change in the location of the child's residence, and (

b) must not consider whether the guardian who is planning to move would do so without the child. [ 30 ] At the time of application, the children resided primarily with T.J.S. Following an allegation by K.K.M. that T.J.S. may have touched the children inappropriately, K.K.M., who had since moved to the Lower Mainland, refused to return the children after parenting time. After a thorough examination by multiple authorities the allegations were determined to be without foundation and by interim order of this court, the children were returned to T.J.S.’s care at the end of the school year.

The children remain in T.J.S.’s primary care in Kamloops. [ 31 ] Both guardians claim that a change in the location will have a significant impact on the children’s relationship with that guardian. [ 32 ] Given the number of moves the children have made prior to their parents separation, during their separation, and post separation, including these proceedings, I find the primary consideration is whether the relocation to the Lower Mainland with K.K.M. is in the children’s best interest. Best Interests of Child – Family Law Act [ 33 ] Pursuant to

section 37 of the FLA , when making an agreement or order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interest of the child only. The circumstances to consider are set out in section 37(2) of the FLA . Each consideration is set out in the order they appear in the subsection followed by discussion of each. (

a) The child's health and emotional well-being [ 34 ] Presently, the Children are 5 and 7 respectively. Both children are relatively heathy although T.J.S. and B. raised concerns about L.’s weight gain while in K.K.M.’s care. From the evidence of B., she observed significant weight gain in L. between the time she seen L. in person in July and when she returned to Kamloops in December. Specifically, B. stated: When they came back they were significantly overweight. I was worried. [L] gained a lot of weight. Today, she is closer to what she was in July. She isn’t a tiny girl.

At Christmas, it scared me because she looked puffed out and bloated. I couldn’t believe what I was seeing. It is not possible for a 6 yr old to gain that much weight in 6 mos. The girls are active when with me. It was surprising to see that much weight gain. 63-94 lbs in 5 months was concerning. [ 35 ] T.J.S. is vegan. During the relationship, K.K.M. and the children were vegetarian. During the period of separation and instability, the children remained vegetarian as they were in T.J.S.’s care and continue to be vegetarian since returning to T.J.S.’s care.

While in K.K.M.’s care in the Lower Mainland, the children remained primarily vegetarian however, K.K.M. confirmed in her evidence that she introduced meat back into the Children’s diet. I expect a combination of a change in diet, periods of inactivity and the parent’s separation have contributed to L.’s weight gain. [ 36 ] Other evidence of health issues of the children were related to hygiene. Specifically lice and ringworm.

Both parties seem to suggest the other is responsible however, I find that both parents are equally responsible as the children were spending time with each parent who knew about the problem, had access to the medication to treat it and the time to ensure it was being addressed adequately. [ 37 ] I have not heard evidence that suggests the children’s emotional wellbeing has suffered over and above the normal emotional turmoil that occurs when their parents separate. Nor have I heard evidence that either child’s emotional wellbeing has suffered as a result of any particular health issues raised by their parents.

All of this seems to be in the past as both parents confirm that the children are healthy. (

b) Child’s Views [ 38 ] The children have a strong bond with both parents and get upset when it is time to move from one to the next. There is no Views

of the Child Report to consider. From the evidence of both parents, Mr. H. and B., the children are accustomed to spending time with both parents, have adjusted to new partners of each parent and are comfortable in each home.

c) the nature and strength of the relationships between the child and significant persons in the child's life; [ 39 ] The children have a strong bond with both parents and equally strong bonds with their paternal grandmother B. and K.K.M.’s new partner, Mr. H. All are contributing in their own way to the success of the children. [ 40 ] T.J.S., his parents and the Children are Metis. T.J.S. has a strong connection with LMO and the Metis community in the Kamloops area. The Children are learning their Metis language and culture first hand from T.J.S., their Kookum (grandmother) B. and the LMO.

While the Children resided with K.K.M. in the Lower Mainland, K.K.M. connected them with the Metis organization in the Lower Mainland and an aboriginal support worker in the public school L. and W. attended however, the breadth, scope and quality of these connections is unclear in the evidence in terms of maintaining cultural continuity for the children. [ 41 ] I find that in terms of maintaining the children’s connection to their Metis Culture, Kamloops is the better option as the children are connected directly to a progressive Metis organization that they are familiar with, they are connected to other Metis people beyond their father and grandparents, they are learning to speak Metis within the family unit; and they are enrolled in an Indigenous owned and operated school that focuses on providing a culturally relevant educational experience for the children.

I do not see this same level of cultural connection in the Lower Mainland. Not to say cultural continuity is not or cannot be obtained to the same degree as it is has in Kamloops, there is a lack of detail from an evidentiary basis, on how cultural continuity for the children is or can be achieved in the Lower Mainland. I have more to say on cultural continuity when comparing both provincial and federal legislation.

d) the history of the child's care; [ 42 ] The children are five and seven years old and until the parties separated in December 2019, had been in the care of both parents. I find that from the initial separation to August 2020, the children were in the primary care of T.J.S. From August 2020 to June 2021, the children resided with K.K.M. and Mr. H. in the Lower Mainland. Since July 2021, the children have resided primarily with T.J.S. and alternate weekends with K.K.M. From August 2020 to December 2020, the children did not see T.J.S. nor B.

This was the result of the inappropriate touching complaint filed by K.K.M. Once the complaint was investigated, then dismissed and an interim court order made, T.J.S. was able to see the children again.

e) the child's need for stability, given the child's age and stage of development [ 43 ] The children are young and well cared for in either parents’ home. Neither child has special needs. Since 2019, the children lived in Osoyoos, Chase, Kamloops, Delta, Surrey and back to Kamloops. If I grant K.K.M.’s application for primary residence, the children will have to move one more time. Given that both children are now registered in school in Kamloops, there is a greater need to maintain stability and continuity in their lives. [ 44 ] Neither party has demonstrated the children have the benefit of a standard of stability that is not met while in the others household.

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; [ 45 ] I find that both guardians are willing and capable parents and are able to meet the needs of the children.

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; [ 46 ] K.K.M.’s application for a protection order in June 2020 resulted in a finding that the parties were both contributing to an environment of animosity and conflict and conduct orders were made to guide communications. [ 47 ] K.K.M.’s allegation of inappropriate touching by T.J.S. against the children were, after investigation by multiple authorities, deemed inconclusive. [ 48 ] K.K.M. made further allegations that she was sexually assaulted by T.J.S. during their period of separation and instability.

T.J.S. denies the allegation and the matter is presently before the court and heading to trial. During the course of this hearing, K.K.M. was permitted to cross examine T.J.S. directly on the sexual assault allegations however, the cross examination did not yield sufficient evidence to conclude a sexual assault occurred. At the end of the day, it remains an allegation to be tested in the context of a criminal trial. [ 49 ] The parties are separated and have been apart for some time, which has lessened the conflict that was common while in the early stages of separation as they work out the details of child care.

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; [ 50 ] I make no finding that a person was responsible for family violence. I will have more to say on family violence and any impact that may have on the children.

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; [ 51 ] Both parents have expressed feelings of anxiety and concern during pick up and drop offs. The inclusion of Mr. H. and B. with

exchanges has smoothed things over for all involved. Conduct orders are in place and seem to be sufficient to allow the parties to conduct themselves accordingly.

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 52 ] K.K.M. filed a sexual assault complaint against T.J.S. arising from the period of separation and instability for the family. The matter is presently before the court. T.J.S. denies the allegations and has retained the assistance of legal counsel. The allegations will be addressed in due course.

Both children appear comfortable in the care of each parent and to their credit, the parties have kept this proceeding between themselves as adults and have shielded the children from the inherent animosity that flows from the allegations and court proceeding. Discussion of Best Interests of a Child – Family Law Act [ 53 ] The original relocation of the children from their father’s care in Kamloops to the Lower Mainland occurred in August 2020 after an allegation of inappropriate touching against one of the children.

The allegation was levied by K.K.M. based on her observations of genital warts on one of the girls. After examination and assessment from the BC Children’s Hospital, the warts were determined to be the result of poor hygiene. T.J.S.’s parenting time resumed by an interim order.

In that order, T.J.S. was granted scheduled parenting time until the summer to allow the children to complete the school year at which time, they returned to the care of T.J.S. in Kamloops. [ 54 ] This hearing is to determine whether the children ought to remain with T.J.S. in Kamloops or be returned to K.K.M. in the Lower Mainland. [ 55 ] Given the initial relocation without notice or agreement to the Lower Mainland and the subsequent return of the children to Kamloops, the court is concerned with creating any further instability or disruption in the children’s lives should the children be relocated back to the Lower Mainland. [ 56 ] I find that both parents have demonstrated their ability to care for the children and to meet their respective needs.

There was a period of instability prior to and after the parties separated where K.K.M. was on her own struggling with an alcohol addiction and declining mental health. T.J.S. cared for the children during this time. He kept K.K.M. informed regarding the children and kept the door open for K.K.M. to exercise parenting time. Since moving to the Lower Mainland and entering into to a relationship with Mr. H., K.K.M.’s mental health has improved and her addiction to alcohol has diminished however, she continues to use cannabis regularly.

Some of this cannabis use is while the children are around however, from the evidence of S.B., the children, while familiar with K.K.M.’s and Ms. B.’s use of cannabis, are not permitted to be present while it is being used. T.J.S. has no addictions and does not use cannabis. [ 57 ] The two older children of the relationship are not the subject of this application. The eldest, now 15 has been in the Ministry’s care for some time due to behavioural issues that are beyond the capacity of the parents. This child resides in the Lower Mainland and struggles with drug addiction.

The second eldest child is a daughter, who was residing with T.J.S. during the period of instability but later moved to the Lower Mainland with K.K.M. This daughter struggles with mental health and has a complicated relationship with her father, T.J.S. who accommodates and respects her decision to reside with K.K.M. While the court is not being asked to make any orders regarding these two older children, K.K.M. submits that the mental health of the older children will be further diminished if their younger siblings are not living with or accessible to them.

T.J.S. is cognizant of this and is open to a parenting time

schedule that ensures L. and W. are able to meaningfully connect with their elder siblings. [ 58 ] Mr. H. is a stabilizing factor in K.K.M.’s life. He appears honest, hardworking and has connected with the children. The children are familiar and comfortable with Mr. H.’s family in the Lower Mainland. Given the animosity between the parties, Mr. H. has played a pivotal role in creating a safe space during exchanges. Family Violence [ 59 ] Section 37(2)(

g) and (

h) of the FLA requires assessment of family violence as guided by s. 38 which reads: 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [ 60 ] The allegations of sexual assault against T.J.S. levied by K.K.M. is working its way to trial. During the course of this hearing, K.K.M. was permitted to cross examine T.J.S. on the alleged assault however, the cross examination in the context of a family hearing,

did not reveal sufficient evidence from which the court can safely conclude that the alleged sexual assault occurred. [61] There was evidence led by both parties regarding an assault by K.K.M. against T.J.S.’s sister that occurred while T.J.S. andK.K.M. were living with T.J.S.’s father temporarily in Osoyoos. As I understand the evidence, the assault was at the lower end consistingof pushing, shoving and loud voices. The RCMP got involved in an effort to keep the peace. The children were several years youngerthen and were present however it is uncertain whether they witnessed this altercation directly.

The children’s lives were disrupted by thisevent however, as the family had to pack their bags and move from the Okanagan area to B.’s home in Chase. [62] K.K.M. alleged inappropriate touching by T.J.S. against the children, which became her rationale for relocating the children withher to the Lower Mainland without notice. The investigation concluded that the issue was one of poor hygiene. The children did not seetheir father, nor their grandparents in Kamloops until the investigation concluded some 5 months later.

Best Interest of an Indigenous Child and Cultural Continuity [63] The Children are Metis as is their father and their paternal grandparents. T.J.S. is active in the Metis community in Kamloops andparticipates regularly in cultural events organized by LMO. The children are learning their Metis culture and language from their father,T.J.S., their Kookum (grandmother) B. and through their connection with LMO. During the period of instability, LMO providedsignificant support to the family, including K.K.M.

In Kamloops, the children are attending a Secwepmc owned and operated schoolwhose mandate is to ensure children receive quality education while maintain a strong connection to Indigenous culture. At this school,the children are learning to understand and speak Secwepmc. [64] K.K.M. is not Metis however, while the children were in her care in the Lower Mainland, she connected the children with Metisservices in the Lower Mainland. It is unclear from the evidence, whether this connection went beyond services and included culturaltraining, guidance or language.

While in the Lower Mainland, K.K.M. enrolled the children in a public school and connected the childrenwith the aboriginal support worker however, it is unclear from the evidence whether and how, the children’s Metis culture was nurturedthrough that process. [65]

Section 37 of the Family Law Act does not speak directly to maintaining cultural continuity for Indigenous children. In E.V. v.R.B., 2019 BCPC 205 , 2019 B.C.P.C. 205, Judge Frame identified that cultural heritage was not included within s. 37 of theFLA and stated at para 24: [24] While both counsel acknowledged that the considerations set out in

section 37 of the Family Law Act do not include culturalheritage, it is an important consideration. Ms. Caldwell referenced the Adoption Act, an adoption case, and some child protection cases.This is unnecessary. It has been established since the Supreme Court of Canada decision of Van de Perre v. Edwards, 2001 SCC 60, thatheritage is a factor to be considered. That case distinguished the considerations in adoption from those where the competition is betweenbiological parents (or in this case biological grandparents), the distinction being that the biological grandparents share the race andculture of the child.

So while it is an important factor to consider who is in the best position to preserve and nurture C.V.’s culturalidentity, that factor must be considered among the other factors as a whole. In other words, it is not a determinative factor. [66] The predecessor to

section 37 of the FLA was

section 24, which included as a factor to consider at section 24 (1)(c) “the love,affection and similar ties that exist between the child and other persons”. This consideration led to an analysis of an Indigenous child’s“existing ties” to people, culture and land as a means to assess or preserve and nurture the cultural identity of an Indigenous child. (seeA.L. et al v. D.K. et al 2000 BCSC 480 , 2000 B.C.S.C. 480 at para. 52). [67] Under the current section 37(2)(

c) of the FLA, issues of cultural continuity in the context of an Indigenous child are capturedunder the heading – “the nature and strength of the relationships between the child and significant persons in the child’s life” which Ifind is a fairly generic way to address a very specific issue. [68] More recently, Canada enacted

An Act respecting First Nations, Inuit and Metis Children, Youth and Families S.C. 2019, c.24(FNIMCYFA). The

preamble of this legislation makes reference to Canada’s commitment in implementing the United NationsDeclaration on the Rights of Indigenous Peoples which states at

Article 9: Indigenous people and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions andcustoms of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right. [69] The

preamble also makes reference to Canada’s recognition of the legacy of residential schools and the disruption thatIndigenous women and girls have experienced in their lives in relation to child and family services systems. [70] In regards to maintaining cultural continuity of a child, section 9(2) of FNIMCYFA states:

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the followingconcepts. (

a) cultural continuity is essential to the well-being of a child, a family and an indigenous group, community or people; (

b) the transmission of languages, cultures, practices, customs, traditions, ceremonies and knowledge of indigenous peoples is integral tocultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the indigenousgroup community or people to which he or she longs is respected; (

d) Child and family services provided in relation to an indigenous child are to be provided in a manner that does not contribute to theassimilation of the indigenous group, community or people to which the child belongs or to the destruction of the culture of thatindigenous group, community or people; and

(

e) the characteristics and challenges of the region in which a child, a family or an indigenous group, community or people is located are to be considered. [ 71 ] The best interests of an Indigenous child is addressed in

section 10 of the FNIMCYFA . Section 10(2) sets out the primary consideration to consider and states: 10(2) when the factors referred to in subsection 3 (factors to consider) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance for that child, of having an ongoing relationship with his or her family and with the indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. [ 72 ]

Section 3 of FNIMCYFA sets out the factors to consider when assessing the best interest of an Indigenous child. Preserving a child’s cultural identity is specifically stated at

section 3 (

d) which states: 3(

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the indigenous group community or people to which the child belongs [ 73 ] The FNIMCYFA is federal legislation and speaks directly to Indigenous children however it appears to be directed at Indigenous communities who chose to exercise legislative authority in relation child and family services.

In British Columbia, the Family Law Act and Child Family & Community Services Act ( CFCSA ) are the governing legislation when dealing with parenting issues involving children or child and family services for children in care. [ 74 ] Under the CFCSA , a consideration of the best interest of the child includes at section 4(1)(e), a child’s “cultural, racial, linguistic and religious heritage”. In addition, at s.4(2), if the child is Indigenous, the following factors must also be considered when determining best interest of the child: s.4(2) (

a) the importance of the child being able to learn about and practise the child’s Indigenous traditions, customs and language; (

b) the importance of the child belonging to the child’s Indigenous community. [ 75 ] My reference to the federal FNIMCYFA and the CFCSA of British Columbia are stated as a means to illustrate, what I view as a lack of any specific reference in the FLA to cultural continuity when determining best interest of an Indigenous child. [ 76 ] As I write this decision, Bill 29, the

Interpretation Amendment Act , 2021 received Royal Assent on November 25, 2021 and is now in force. Bill 29 adds a non-derogation clause to the

Interpretation Act confirming that provincial laws uphold, and do not diminish, the rights of Indigenous Peoples as set out in

section 35 of the Constitution Act, 1982 . Bill 29 requires that the UN Declaration on the Rights of Indigenous People be used to assist in resolving disputes over the meaning of British Columbia Acts and Regulations. Specifically, Bill 29 adds

section 8.1 to the

Interpretation Act , which states:

Section 35 of the Constitution Act and Declaration 8.1(1) in this section: “Declaration” has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act; “Indigenous Peoples” has the same meaning as in the Declaration on the Rights of Indigenous Peoples Act; “Regulation” has the same meaning as in the Regulations Act.

(2) For certainty, every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by

section 35 of the Constitution Act, 1982 .

(3) Every Act and regulation must be construed as being consistent with the Declaration. [ 77 ] In the context of maintaining the cultural continuity of an Indigenous child, while not specified directly within section 37(2) of the FLA , it is open for a court to interpret this

section so as to specifically consider within the best interest of a child analysis, the cultural continuity of an Indigenous child. In doing so, it is open for a court to adopt best interest of an Indigenous child factors identified in federal statutes such as the FNIMCYFA and provincial statutes such as the CFCSA . Specifically, the factors may include: (

a) cultural continuity is essential to the well-being of a child, a family and an indigenous group, community or people; (

b) the transmission of languages, cultures, practices, customs, traditions, ceremonies and knowledge of indigenous peoples is integral to cultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the indigenous group community or people to which he or she longs is respected; and (

d) the characteristics and challenges of the region in which a child, a family or an indigenous group, community or people is located are to be considered. [ 78 ] Applying the best interest of a child considerations as set out in

section 37 of the FLA , I find that for L. and W., it is in their best interest to find stability in their lives and to maintain a strong connection to their Metis culture. Accordingly, I am denying K.K.M.’s application to relocate the Children to the Lower Mainland. I find that a further move will disrupt the children’s lives. I also find that the children’s connection to their Metis culture will be fostered more directly through their connections with their Metis father and grandparents; their attendance at the [omitted for publication]; and the connection the family has to an established and progressive Metis

Organization, the Lil Michif Otipemisiwack, in Kamloops, British Columbia. [ 79 ] At the same time, the court is mindful of the love, care and resourcefulness of K.K.M. over the children; the connection the children have with their older siblings; and the connection the children have formed with Mr. H. and his family in the Lower Mainland. ________________________ R.D. Phillips Provincial Court Judge