B.V. v. S.L., 2021 BCPC 106

Citation: B.V. v. S.L. 2021 BCPC 106 Date: 20210428 File No: 1930837 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.V. APPLICANT AND: S.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: S. O'Mahony Counsel for the Respondent: C. Ashclarke Place of Hearing: Vancouver , B.C. Date of Hearing: Sept. 22-25, 29-30, 2020, Feb. 9-11, 23, and March 29, 2021 Date of Judgment: April 28, 2021

INTRODUCTION [ 1 ] S.L. is the mother of J.S.M.L., born [omitted for publication] (the “child”) and is the child’s sole guardian. The father of the child, J.S.V. died on [omitted for publication]. [ 2 ] B.V. is the paternal grandmother of the child. B.V.’s original application to the court was filed on January 27, 2017, and then amended August 15, 2018. B.V. sought an order granting her guardianship, parenting time and parental responsibilities for the child. S.L. opposed this request.

Although the filed application was never formally amended, B.V. now only seeks an order for contact with the child. [ 3 ] The issue before me is whether contact between B.V. and the child is in the best interests of the child. If it is, then I must decide on the level of contact. THE LAW [ 4 ]

Section 59 of the Family Law Act , SBC 2011, c. 25 (“ Family Law Act ”) allows the court to make an order to allow anyone who is not a guardian to have contact time with a child. [ 5 ] When making an order for contact, the court must only consider the best interests of the child according to Family Law Act s. 37 , which states: 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. [ 6 ] S.L. remains the sole guardian and has all parental responsibilities over the child. Section 40(1) of the Family Law Act lists the parental responsibilities as follows: 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 and

location; (

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

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the 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. ORDERS SOUGHT BY B.V. [ 7 ] The orders sought by B.V. are extensive. I will summarize the requests: 1. B.V. is to have contact as follows: a. On the first and third weekend of each month. The first weekend is to be from Saturday at 4:00 p.m. to Sunday at 6:30 p.m. The third weekend visit is to be from Sunday at 9:00 a.m. to drop-off at school on Monday morning, and if there is no school, then to Monday at 6:00 p.m.

These visits are to be extended if the day after a visit is a professional development day or a statutory holiday. b. A 72-hour weekday visit during each annual school spring break, a continuous 48-hour visit during the Christmas holidays, and a continuous 96-hour visit in each of July and August of each year. c. Specified remote contact with the child. d. Such other times as agreed by the parties. 2. B.V. is to have compensatory contact time if for any reason there is cancellation, delay or abbreviation of a scheduled contact visit. 3.

B.V. is to be responsible for the transportation of the child until S.L. obtains her driver’s licence, after which the driving duties will be shared. 4. Certain COVID-19 protocols will be in place including the sharing of the costs of testing if the government should start charging for these tests. 5. B.V. can supervise the child’s bathing but not actively bathe the child. 6. S.L. will be required to provide certain information about the child to B.V. 7. B.V. can take the child to certain specified events. 8. M.V., his wife, J.S., and their children are to have contact with the child. 9.

S.L. is to pay to B.V. the sum of $5,000 for the wrongful denial of contact pursuant to s. 61 and 62 of the Family Law Act . 10. The parties are to mediate any disputes prior to any further court applications. ORDERS SOUGHT BY S.L. [ 8 ] S.L. is agreeable that B.V. have contact with the child but disagrees with the extent of contact time sought. S.L. proposes as follows: 1. One contact visit a month occurring on a Sunday between the hours of 10:00 a.m. and 4:00 p.m. 2. A conduct order preventing B.V. from bathing the child and sharing a bed with the child. 3. An order prohibiting the following: a.

M.V. and his wife from having any contact with the child. b. Removing the child from the Lower Mainland.

c. Taking the child to any Sikh temple. d. Providing the child with any religious instruction. e. Taking photographs of the child for the purposes of any court proceedings. 4. A requirement for B.V. and her partner to provide a negative COVID-19 test result no more than 3 days before any contact visit. If there should be a cost to the test, the parties will share the costs equally. B.V. is to also comply with any COVID-19 health mandates. The requirement for testing will stop once the government state of emergency is lifted or if the parties agree in writing. 5.

B.V. is responsible for all transportation of the child during contact visits. THE WITNESSES [ 9 ] The following persons testified at trial: 1. The applicant, B.V.; 2. The partner of B.V., A.D.; 3. The son of B.V., M.V. (“M.V.”); 4. The respondent mother, S.L.; 5. The fiancé of S.L., A.L.; 6. The aunt of S.L., M.M.; and 7. The pediatrician for the child, Dr. K.H. CASELAW [ 10 ] Both counsel have referred me to a number of cases, which I have listed in an appendix attached to this decision. I have reviewed the decisions even if I do not mention all of them in my Reasons.

EVIDENCE AND DISCUSSION [ 11 ] Much of the evidence came in the form of text messages between the parties. Otherwise, the dates of events appeared to be approximations but nothing turns on the precise date of when something occurred. I will set out the history based on the text messages and the testimony of the parties. [ 12 ] S.L. and J.S.V. began dating in or about 2012. J.S.V. is also called [omitted for publication] but for the purposes of this decision, I will refer to him as J.S.V.

Their child, J.S.M.L. was born [omitted for publication]. [ 13 ] The parties disagree about where S.L. was living before and after the child was born. B.V. said that S.L. lived in a Surrey home where J.S.V. and her second son M.V. lived. M.V. is also nicknamed [omitted for publication]. For the purposes of this decision, I will refer to him as M.V. [ 14 ] S.L. said she was living in Vancouver with her aunt, M.M., because her pregnancy was high risk and S.L. wanted to be closer to the hospital in Vancouver. [ 15 ] Where S.L. lived prior to and at the time of the child’s birth is not important.

It is unfortunate we spent so much trial time on what was clearly a collateral and irrelevant fact: see the decision Virani v. Dhami, 2003 BCSC 239 , at paragraph 106 . [ 16 ] S.L. said that she and the child moved to the Surrey home in approximately November 2014, to be with J.S.V. [ 17 ] During that time, B.V.’s partner, A.D., who is also referred to as [omitted for publication], had his own house in Surrey. According to S.L., B.V. was spending the majority of the time at A.D.’s home starting in October 2014. [ 18 ] In November 2014, S.L. returned to work at Safeway, working once or twice a week.

During this time, B.V. cared for the child. [ 19 ] S.L. was aware that J.S.V. had an alcohol addiction problem. She was not aware of him using illegal drugs. Both S.L. and B.V. were concerned enough about J.S.V.’s behaviour that neither wanted him to be alone with the child. [ 20 ] In May 2015, S.L. and J.S.V. separated, and S.L. and the child moved to an apartment in Surrey owned by S.L.’s father.

There was some dispute about whether J.S.V. also moved with S.L. but again this is not important. [ 21 ] In about May 2015, S.L. began to work full-time at Safeway and B.V. continued to provide care for the child while S.L. worked. [ 22 ] Both parties spent considerable time discussing an incident in July 2015, when the child was left alone in the care of J.S.V. S.L. and M.M. testified that they thought B.V. was supposed to be present at all times when J.S.V. was with the child.

Whether or not this was the case, on some date in July 2015, J.S.V. was in an incapacitated state while the child was in his care and the child had to be retrieved. There remains a dispute about who did this though. Both B.V. and M.M. claim to have taken the child away from J.S.V.’s care. [ 23 ] I mention this incident only because considerable trial time was spent discussing it. However, I fail to see any relevance of this

incident in a case where parental responsibilities are not in issue. [ 24 ] Sometime in early 2016, S.L. began to date A.L. In March 2016, A.L. began to care for the child and in August 2016, A.L. moved in with S.L. and the child. According to S.L., A.L. began to care for the child two to three times a week, while B.V. cared for the child the remainder of the time when S.L. worked, which included overnight care for the child when S.L. worked a late night shift.

A.L.’s evidence was that he cared for the child about once a week, rarely more than that. [ 25 ] By January 2017, the parties’ concern about J.S.V. was such that they went together to the Surrey Provincial Court. The parties dispute the purpose of the visit to the court. B.V. says that she and S.L. agreed that B.V. should become a guardian of the child. S.L. said she only went to the court to get advice on her options about removing J.S.V. as a guardian, and that she never agreed to B.V. becoming a guardian.

Regardless of the purpose of the court attendance, on January 27, 2017, B.V. filed an application to be appointed a guardian of the child and to have parental responsibilities and parenting time. [ 26 ] There is no evidence filed with the court proving that service of the application on S.L. occurred. S.L. never filed a reply and the application was not pursued in court at the time. [ 27 ] S.L. suggests that her distrust of B.V. started at this time. She was of the view that B.V. was trying to take the child away from her.

B.V. disagrees although the application filed under her name clearly shows an intention to obtain a parenting role over the child. B.V. never withdrew her application to be appointed a guardian. It was only on August 27, 2020, at a pre-trial conference held before Judge Raven, that the court was told that B.V. was now only seeking an order for contact. [ 28 ] S.L. said that starting in February 2017, other people began to care for the child more often. This included A.L., M.M., S.L.’s father and stepmother, and S.L.’s cousin.

As a result, B.V. had less time to spend with the child. [ 29 ] S.L. said B.V. began to undercut S.L.’s role as the child’s mother. S.L. cited an incident at a social gathering in December 2017. During the course of the evening, the child began yelling and became defiant. S.L. felt that the child needed time to regulate herself and so S.L. placed the child into a “time-out” in a separate room. S.L. said that when she left the room, B.V. went in and brought the child out of the room to apologize to S.L. [ 30 ] S.L. cited this incident as an example of B.V. trying to undercut S.L.’s role as the child’s mother.

I agree that B.V. should not have interfered with S.L.’s parenting decision. Although this incident was at best minor, it seems to have contributed to S.L.’s growing distrust of B.V. although it did not stop S.L. from still allowing B.V. to have overnight visits with the child. [ 31 ] On [omitted for publication] J.S.V. died from a drug overdose. [ 32 ] In April or May 2018, the child began morning pre-school. According to B.V., she picked up the child after school on Fridays and returned her to S.L. on Sundays.

She said this was every week until May 2018. [ 33 ] S.L. did not agree that B.V. was seeing the child to the extent described by B.V. According to S.L., B.V. had the child from Friday to Saturday or sometimes Sunday to Monday. S.L. said that this was for maybe twice a month, although she agreed that B.V. also saw the child during the days. [ 34 ] In April 2018, S.L. obtained full-time employment as [omitted for publication], working with “at-risk” youth who were in the care of the Ministry of Children and Family Development.

S.L. said it was difficult to answer calls and text messages during work and that B.V. would usually contact her about the child while S.L. was at work. [ 35 ] At this time, B.V. was seeing the child about three days a week. [ 36 ] The child’s pre-school ended in June 2018. At that point, B.V. cared for the child from Monday morning to Tuesday morning. This continued to August 2018. [ 37 ] Also in June 2018, S.L. learned that she was pregnant with her second child. S.L. told B.V. and A.D. of her pregnancy.

B.V. commented, “So we can keep [the child] now.” S.L. did not take this comment as a joke and felt that B.V. was trying to assert herself as the person with the parenting role. S.L. said that her anxiety about B.V. started at this time. [ 38 ] In a text message dated June 10, 2018, S.L. told B.V. that she felt it would be best that B.V. only spend one night a week with the child. S.L. testified that she wanted to establish a routine for the child.

S.L. said that she and A.L. wanted to create more time as a family and to ready the child for the arrival of the second baby, who they would name [omitted for publication]. Despite this, S.L. said that she still wanted B.V. to have time with the child, as B.V. remained a part of the family. [ 39 ] B.V.’s time with the child was being gradually reduced and it was clear that this became an issue. The parties exchanged a series of text messages in August 2018, discussing B.V.’s time with the child. [ 40 ] On August 3, 2018, S.L. sent a text message to B.V. stating: [M.M.] wants to have a meeting to work out a

schedule so everyone has a chance to spend time with her. I have 12p-4p off.

[ 41 ] [M.M.] was a reference to S.L.’s aunt, M.M. S.L.’s reference to “everyone” meant members of both sides of the family. S.L. said that this included her father and stepmother, her aunt M.M., her aunt D., her uncle S. and his mother and father W. and B.M., her cousin J., and A.L.’s mother L.M. The meeting that was suggested in the text message never occurred. [ 42 ] I am satisfied that at this time, S.L. was feeling pressured by various family members, including B.V., to spend time with the child. [ 43 ] The parties exchanged further emails, with B.V. repeating her wish to see the child.

S.L. responded that she was concerned about the child’s behaviour due to a lack of routine. [ 44 ] On August 6, 2018, M.V. sent a text message to S.L. stating that the child should be with his family at least two days a week, noting that B.V. used to care for the child five days a week. [ 45 ] Also on August 6, 2018, M.V. phoned A.L. According to A.L., M.V. was advocating for B.V. to see the child three times a week. A.L. said that M.V. was upset and yelling and said to A.L. “you ain’t nobody.” A.L. said he hung up the phone in response.

Later that day, M.V. sent a text message to A.L. that stated: Hey I just wanted you to know I have nothing against you I was out of line to say u aint anybody you take care of [the child] and are there for her everyday. And I respect that your taking care of her [ 46 ] On August 7, 2018, S.L. sent a text to B.V. with a copy sent to M.V., M.M. and S.L.’ father.

The text read: Hi the weekend was very difficult for me I was at work and kept getting non stop calls and texts we had agreed to a meeting to sort this out but you continued to call and text telling people that I was a liar, I’m not right in the head I found that extremely hurtful even [A.L.] spent a lot of time on the phone with both you and [M.V.] to assure you we are not trying to take [the child] away and even after those calls you called my dad and started a fight between him and me. That was not ok.

What everyone is forgetting is that I am [the child’s] mom, her only mom I want all her grandparents and uncles and everyone to be in her life be- cause family is important but she is only a little girl and now all the adults in her life are fighting, I don’t want that around her I feel like everyone is trying to make decisions for me and not respecting that I am her mother against her only mother. Because if this I want to take a break from

all the fighting I would like to be left alone for now.

I need to take time to sort out what is best for [the child] I know this hurts you, I’m sorry for that but you continually harass me while I’m at work, you call my father get my family involved and now everyone is fighting and I’ve had enough please give me some space we will work this out but right now I need time to myself I have asked that everyone respect that. [ 47 ] M.V. responded in a text that read: Ok just be ready for [the child] to be picked up for the weekends I don’t want u to be stressed at work that wasn’t right my mom did go over board a little I’ve told her that [ 48 ] S.L. told M.V. in a text that she was not prepared to allow the child to go on overnight visits and that S.L. needed time to: sort out what will work best for everyone moving forward as I have said this last weekend was really tough and a lot of negative things were said about me and it really hurt so please respect that I need time to process this. [ 49 ] On August 8, 2018, M.V. texted S.L. to suggest that S.L. did not want B.V. or him to see the child.

S.L. responded by text, stating: Its not just you guys its also my dad and [M.M.] Need time to figure out what is best for [the child] [ 50 ] S.L. said that she was feeling disrespected from all sides and she needed to put the child’s well-being first. S.L. told M.V. that when S.L. and A.L. came to a decision, they would inform him, B.V., M.M. and S.L.’s father. [ 51 ] M.V. responded: Ok but we have rights to see her when we want and u keeping her away like this is bad [ 52 ] On August 15, 2018, B.V. filed an Amended Application to Obtain an Order.

The only amendment to this application was to remove J.S.V. as a party. [ 53 ] I turn now to describe an incident that occurred on August 26, 2018, when M.V. and his wife J.S. took the child to high tea. This incident has nothing to do with B.V. and there is no evidence to suggest that she was even aware of it at the time. The incident is a reason why S.L. does not wish M.V. or J.S. to see the child. Since they do not have an application for contact, the relevance of this incident is doubtful.

Nevertheless, given how much trial time was devoted to incident, I will describe the events. [ 54 ] The lead up to the August 26, 2018 incident started on August 15, 2018, when M.V. texted S.L. to say he was taking the child to high tea and then to Cultus Lake, and to ask to have the child overnight for the birthday of his wife J.S. S.L. replied that due to how people had been acting, the child would only be having day visits with S.L. and A.L. present. [ 55 ] M.V. responded by text: Well can I at least take her for the day with out be supervised like a criminal

[ 56 ] M.V. followed up with a further text to S.L. noting that for the last three years, B.V. cared for the child, and that a couple weeks ago they were told there would be one overnight visit a week “but now even that is apparently too much to ask for.” [ 57 ] M.V. went on to say that it would be in the child’s best interests to have contact with the family and that this was being taken away. He concluded by saying, “Your tearing her apart from all her ties with her father.” [ 58 ] Between August 17 and August 26, 2018, S.L. had a text message discussion with M.V.’s wife J.S.

S.L. understood that J.S. wanted to celebrate her birthday by going to high tea with both her daughter and the child. S.L. said that she agreed to allow the child to go with the understanding that M.V. would not be attending. [ 59 ] A copy of the text messages passing between S.L. and J.S. is found in the RCMP file notes submitted into evidence. [ 60 ] Those records show that on August 15, 2018, J.S. sent a text to S.L. confirming the August 26 date. [ 61 ] There followed a further discussion, with J.S. making mention of meeting at Cultus Lake.

J.S. said she did not know what is going on but that she wanted to have a few close friends and family to come out for her birthday. [ 62 ] J.S. went on to say: Alternatively if you just don’t want her around [M.V.] either if you’d let me take her earlier in the morning with [S.] I could do high tea with the two of them [ 63 ] There was no direct response from S.L. confirming that M.V., referred to as [omitted for publication] in the text message, was not be present. [ 64 ] The high tea occurred on August 26, 2018.

S.L. was working that day and she received word from A.L. that M.V. had come to pick up the child. [ 65 ] At 11:32 a.m. on August 26, 2018, S.L. sent a text message to M.V. stating that there was an agreement that the child be returned at 11:30 a.m., and that she had the impression only J.S., S. and the child would be attending high tea. S.L. told M.V. that if he did not return the child in 30 minutes, she would file a missing person report. [ 66 ] At 11:34 a.m., M.V. sent S.L. a text message stating that the child was not missing and she was fine.

He said they had gone home first because the child was not dressed and needed to be cleaned. [ 67 ] At 11:35 a.m., M.V. texted S.L. that he did not realize high tea was served in separate courses. [ 68 ] S.L. responded at 11:36 a.m., that her trust had been breached and her boundaries violated. [ 69 ] S.L. and M.V. exchanged a number of further text messages. Then at 11:52 a.m., S.L. asked M.V. for his location so that her father could pick up the child. [ 70 ] M.V. would not disclose his location.

He told S.L. not to be unreasonable, that the child was with her uncle and he would message S.L. when they leave for the child’s home. [ 71 ] At 12:38 p.m., M.V. texted S.L. to advise that they were mid-meal and that he would call as soon as they were done. S.L. said she would come by to pick up the child and again requested to know where the child was.

S.L. said she would call the RCMP if she was not given the information. [ 72 ] At 12:44 p.m., M.V. texted that they were almost done and he would call when they were done. [ 73 ] At 12:40 p.m., M.V. sent S.L. by text a photo of the child and himself. [ 74 ] At 1:23 p.m., M.V. said they were waiting for the bill and asked where to meet.

S.L. responded that they would meet at her home. [ 75 ] The RCMP records state that at 2:06 p.m., S.L. phoned the RCMP about the child. [ 76 ] At 2:10 p.m., M.V. sent S.L. a text to say they had a flat tire. [ 77 ] The RCMP records state that M.V. arrived at S.L.’ home at 3:30 p.m. [ 78 ] According to S.L., the child ran out of the car and went to A.L., calling him “Daddy”. M.V. said to the child “Don’t call him Dad. Your Dad is dead.” S.L. said she was mortified upon hearing this.

[ 79 ] At this point, M.V. served S.L. with B.V.’s Amended Application to Obtain an Order. [ 80 ] My review of the RCMP records indicates that there is no report of a safety concern involving M.V. [ 81 ] As I stated earlier, this incident is a primary reason why S.L. distrusts M.V. S.L.’s counsel says this is also a basis for S.L.’s distrust of J.S., suggesting that J.S. was complicit in the incident. There is no evidence to support this suspicion. [ 82 ] The parties attended a Family Case Conference before Judge Cohen on December 3, 2018.

The parties entered into an interim Consent Order to allow B.V. to see the child on December 16, 22, 23 and 26, 2018. M.V. was not to be present for any of the visits except on December 26, 2018. [ 83 ] The parties next appeared before Judge Jahani on January 8, 2019, when a further interim Consent Order was made. The order provided that B.V. would have contact with the child for two overnight visits per month from Friday at 4:30 p.m. to Saturday at 4:00 p.m., with the date to be agreed by the parties at least two weeks prior. B.V. was required to be present for the entirety of each visit.

B.V. was also to inform S.L. two weeks in advance if B.V. intended to take the child outside the Lower Mainland during the visit. [ 84 ] On [omitted for publication], S.L. and A.L.’s child [omitted for publication] was born. [ 85 ] In September 2019, the child started elementary school. [ 86 ] On September 24, 2019, B.V. filed an Application Respecting Existing Orders and Agreements to vary the January 7, 2019 order of Judge Jahani to have weekly contact time with the child. B.V. never pursued that application.

In any event, the proper course of action would have been to set down for a final hearing the Amended Application to Obtain an Order filed August 15, 2018, which was what did occur. [ 87 ] On November 26, 2019, Judge Wingham varied the January 7, 2019 order to specify that B.V.’s overnight visits with the child could take place at B.V.’s home. [ 88 ] On January 31, 2020, two teachers from the child’s school wrote a letter addressed to the child’s doctor raising medical concerns.

The letter described the child as providing jumbled responses, displaying ticks and shaking, having difficulty with motor skills and displaying anger outbursts. The child’s doctor referred her to a paediatrician, Dr. H. [ 89 ] On March 24, 2020, Dr. H. reported that the child presented with a background of mild receptive and expressive language delay. She had challenges in sentence structure and displayed an intermittent body shake when she was excited. Dr. H. said that the child was prone to emotional meltdowns when things did not go her way. [ 90 ] Dr.

H. set out his impression as follows: Impression : The child presents as a five-year-old girl with emerging challenges in terms of receptive and expressive language delay, some early challenges in terms of her learning skills, and significant difficulties, especially with fine motor skills and possibly with her gross motor skills.

Overall, I do agree that this is a child at risk of future learning disability and it becomes extremely important to give her the maximum level of supports at this age and then reevaluate [ sic ] her over the long term with possibly a formal psychoeducational assessment to take place somewhere around grade two. To begin with, I do want to have a conversation with the school-based team, specifically wishing for an occupational therapy assessment.

She is a child with symptoms potentially suggestive of an underlying developmental coordination disorder diagnosis, which would encompass her challenges in motor skills, but also her learning challenges. Once I have had a chance to communicate with the occupational therapist, my suggestion will be to give her the maximum level of resources at school and outside school and then reevaluate [ sic ] her on a regular basis going forward. At this point, I will see her again in about two months’ time. [ 91 ] In a further report dated July 26, 2020, Dr.

H. stated: At this age, it is extremely important for the child to follow a daily routine which includes basic activities of daily living such as consistency of sleep schedule, in both location and timing, as well as consistent support in terms of her areas of developmental deficit. It is important for all caregivers to be fully focused on the child’s challenges. Conflicts between caregivers can further exacerbate the child’s overall function. At this point, her speech development is likely at around age 4 to 5, significantly behind her peers.

Clearly, because of the speech delay, this child faces potential social challenges and difficulties in expressing herself as would be expected of a child of this age. At this point, it is too early to comment on the child’s long-term prognosis but the years in elementary school are particularly crucial in terms of need for supports in motor skills, language skills, academic skills, social skills and overall psychological well-being. [ 92 ] Dr. H. also saw the child in early July 2020, at the request of an emergency room doctor at BC Children’s Hospital because of the child’s self-stimulatory behavior.

The purpose of hospital examination was to rule out any physical or sexual abuse while the child was in the care of her grandparents. Dr. H. understood that the examination was normal and that the child did not report any abuse. He said that given the child’s speech delay, it was important for her to be appropriately observed at all times and in all settings. [ 93 ] S.L. called Dr. H. to testify. I accepted Dr. H. as an expert in the area of paediatric medicine. [ 94 ] Dr. H. felt that the child was at risk of a future learning disability.

He diagnosed a “Developmental Coordination Disorder” based on his discussions with the child’s teachers. Dr. H. did not have any in-person meeting with the child due to the COVID-19 pandemic. He acknowledged that a psychiatric educational assessment of the child would be of assistance, but the assessment could not be performed due to the child’s young age. [ 95 ] I need not determine if the child does in fact have a Developmental Coordination Disorder. The evidence of S.L., A.L. and Dr. H. all reflect genuine concern for the child’s level of development.

Observations about “ticks” or mannerisms displayed by the child

indicate that when she is stressed or under pressure, she has a negative reaction. [ 96 ] As the child’s guardian, S.L. feels it important that the child maintain a regular schedule, including a sleep schedule, and Dr. H. supports this view. [ 97 ] On August 27, 2020, at a pre-trial conference held before Judge Raven, B.V.’s counsel said that the application was now only for contact with the child. [ 98 ] From August to October 2020, S.L. only allowed B.V. to see the child on Sundays from 10:00 a.m. to 4:00 p.m. S.L. cites Dr. H.’s recommendation for a daily routine as the reason to limit contact.

At no time did Dr. H. suggest that B.V. not have overnight visits with the child. [ 99 ] Since October 2020, S.L. resumed contact visits in accordance with Judge Jahani’s order. I have no doubt that this was related to my reminder to S.L., made during the trial, that Judge Jahani’s order remains in effect until changed by the court. ANALYSIS [ 100 ] A great deal of the evidence seemed to focus on whether S.L. or B.V. was better able to protect the child or to care for her. An example of this was the evidence and photographs submitted by B.V. suggesting that the child’s ears were not being cleaned by S.L.

This evidence is not relevant on an application dealing only with contact time with the child. S.L. has all parental responsibilities for the child. An order permitting contact does not permit the applicant to encroach on a guardian’s parental responsibilities. [ 101 ] Likewise, S.L. expressed concerns about B.V.’s care of the child. For instance, she was concerned about B.V. apparently co- sleeping with the child. B.V. denies sleeping with the child. S.L.’s evidence that B.V. was sharing a bed with the child is at best speculation.

Once again, a decision about the child’s sleeping arrangements is a matter that falls within a guardian’s parental responsibilities. The only relevance of this evidence is in demonstrating the mistrust that S.L. has for B.V. [ 102 ] Counsel for S.L. suggested that B.V. was causing parental alienation by trying to replace S.L. as the child’s parent. There is no expert evidence to substantiate a claim of parental alienation, as called for in the decision Williamson v. Williamson , 2016 BCCA 87 . Certainly, B.V.’s application to become a guardian was to seek a parenting role over the child.

However, there was no application to remove S.L. as a guardian. [ 103 ] I am satisfied based on the evidence, that B.V.’s motives were aimed solely at being able to spend more time with her granddaughter. I do agree with S.L. that at times, B.V. tried to exercise some of the responsibilities that belonged just to S.L. I find that B.V. was not motivated by an attempt to replace S.L. as the child’s parent, but that she felt she was doing what was best for the child. Regardless of these good intentions, S.L. remains the sole guardian for the child and she alone has all parental responsibilities.

As stated in decisions, such as Fawcett v. Read , 2016 BCSC 310 , and D.D. v. A.C. , 2017 BCPC 5 , deference to the custodial parent’s views is important and B.V. needs to do a better job at understanding this. [ 104 ] The parties agree that it is in the best interests of the child that B.V. see her. Given the history of B.V.’s involvement in caring for the child, I am also satisfied that it would be in the best interests of the child to have contact with B.V. [ 105 ] The real dispute between the parties is over the amount of contact and the terms under which contact is to occur. [ 106 ]

Section 37 of the Family Law Act sets out a number of factors that may be relevant when considering what is in the best interests of the child. This list is not exclusive and other factors may be considered when deciding what is in the child’s best interests: see the decision Fawcett v. Read , which I cited earlier, at paragraph 20. [ 107 ] Of the factors listed under s. 37 , the most relevant are the following: The child’s health and emotional well-being. It is my view that the child will benefit from seeing B.V.

At the same time, the child’s health and well-being will benefit from stability, as recommended by Dr. H. The nature and strength of the relationship between the child and significant persons in the child’s life. B.V. is a significant person in the child’s life, but so is the child’s immediate and extended family. An order for contact by B.V. should not be so extensive as to interfere with the time other family members can spend with the child. [ 108 ] I have also considered the following: 1. The child is now attending school and that limits her available time. 2.

S.L. and A.L. have now formed a family along with their child, [omitted for publication] and there is a greater emphasis for the child to be with the immediate family. The present circumstances differ from when S.L. was a single parent working full time and requiring child care. 3. There are a number of other relatives who wish to spend time with the child. Aside from B.V., there are members of S.L. and A.L.s’ families. 4. S.L. proposes contact once a month. As the sole guardian, I need to take into account that view. IS THERE A RANGE FOR CONTACT TIME?

[109] Counsel for S.L. referred to a number of cases focusing on the actual amount of contact time ordered by the court in each case. [110] In Giansante v. Di Chiara, (Ont. C.A.), the applicants were extended family members of the child. In anapplication for access, the court made an order for access from 1:00 p.m. to 3:00 p.m. on alternating Sundays. [111] In T.F. v. K.R.C., 2010 BCSC 1808, the aunts, uncles and grandfather of an 8-year-old child applied for access. The court grantedan order allowing access on the third Saturday of each month from noon to 6:00 p.m. [112] In Simmons v.

Simmons, 2016 NSCA 86, the court dismissed an appeal of an order granting the grandparents access to the childevery 10 days for two hours, increasing to four hours and then six hours. Additional time of two hours was granted over Christmas. [113] In D.D. v.

A.C., 2017 BCPC 5, the court ordered that the step-grandmother have contact for four hours once a month, with onlineor phone contact every second Sunday for a maximum 15 minutes. [114] Counsel for S.L. suggests that these cases demonstrate the range of contact times that a non-guardian should be permitted.Counsel for B.V. argued that each case turns on the facts, with the amount of contact time determined solely by what is in the bestinterests of the child. [115] It is certainly the case in personal injury claims that the courts have been able to formulate ranges for compensation for specificinjuries.

Likewise, in Criminal Code, R.S.C. 1985, c. C-46 cases, the courts have established sentencing ranges for specific offences. Inall cases though, the ranges are not fixed and individual factors come into play to decide where a case may fall within a range or if thecase falls outside the range. [116] In my view, family law cases differ because all families are unique with their own nuances and their own way of dealing witheach other. Furthermore, the Family Law Act only mandates that the best interests of the child determine the amount of parenting time orcontact time that a court may order.

This differs from the Criminal Code, which specifically mandates at s. 718.2(

b) that a sentenceimposed on an offender be similar to sentences imposed on similar offenders for similar offences in similar circumstances. [117] A review of the caselaw suggests that, in general the duration of contact time granted by court order is less than the duration ofparenting time granted to a guardian by court order. This is not surprising since a guardian will typically have parenting responsibilitiesand therefore a greater involvement in the life of a child.

Because of those parental responsibilities, there is both a greater emphasis onand a greater importance to the time that a guardian spends with a child compared to the time a non-guardian spends with a child. It is notsurprising then that most if not all contact time orders will provide for less time with a child when compared to parenting time orders.

DECISION [118] Given the considerations I have set out above, I am of the view that the amount of contact time sought by B.V. is excessive andwill interfere with the child’s time with her immediate family, as well as limiting her availability to spend time with other familymembers. The contact time enjoyed by B.V. in the past was under different circumstances, when S.L. was a single parent working full-time. Circumstances have now changed. The child is in school now.

The child is now part of a family that includes A.L. and her sister.Other extended family members wish to see the child. [119] I refer to the comments of Judge Koturbash in the decision D. D. v. A. C., which I cited earlier. In that decision, the reference to“Ms. D” is to the grandmother who applied for contact with the child. [56] However, Ms. D must accept that she is grandparent and not parent. A grandparent is ordinarily entitled to contact at the timeand for the duration and under the conditions the parent agrees too.

Despite everything her grandmother has to offer, there are soundreasons why it is not in S best interests to resume the same level of contact she had when S’s mother and Mr. C were together and livedin Oliver. S now lives in Greenwood, and is in the process of bonding with her new family unit. She is beginning to participate inextracurricular activities and will soon be attending school. [120] I conclude that S.L.’s proposal regarding contact time is reasonable and in the best interests of the child.

Accordingly, I order thatB.V. shall have contact with the child on the first Sunday of each month from 10:00 a.m. to 4:00 p.m., and continuing on the first Sundayof each month thereafter May 2, 2021. The parties are also free to agree to additional contact time. [121] Both parties agree that B.V. and her partner continue COVID-19 testing prior to each contact visit. If the government should startcharging for the testing, both parties agree to share the costs. I will therefore order as follows: 1.

Three days prior to any contact visit, B.V. and A.D. will provide to S.L. a copy of a COVID-19 test result showing a negativeresult, failing which, the scheduled contact visit will be cancelled. 2. If a cost is charged for the taking of a COVID-19 test, the parties shall share the costs equally. In such a case, B.V. will provideS.L. with a copy of the payment invoice within 7 days after receiving the invoice. Upon receipt of the invoice, S.L. will pay to B.V. one-half of the costs for the testing within 7 days. 3.

The requirement for COVID-19 testing will end once the BC Government cancels the declaration of a state of emergencyregarding the COVID-19 virus, or if the parties agree in writing to cancel the requirement. [122] Both parties also need to comply with the COVID-19 protocols to ensure the protection of the child. I order as follows: 4.

Pursuant to s. 227 of the Family Law Act, each party must comply with all orders and directions issued in relation to COVID-19Virus by the Federal and Provincial government, the Public Health Offices of Canada and British Columbia, and any health carepractitioner caring for the child and the parties. Each party must also comply with the same directions by the Public Health entities inany foreign jurisdiction in which they are travelling with the child.

[ 123 ] S.L. asks that B.V. be responsible for all transportation of the child during contact visits. At this time, S.L. does not have a driver’s licence that permits her to drive the child. She has a scheduled driving test for June 2021. Even if she passes her test, she and A.L. only have one car which A.L. uses to drive to work on Sundays. S.L. is unable to drive the child to see B.V. even if S.L. obtains her driver’s licence.

Given this, I order that B.V. be responsible for the pick-up and drop-off of the child at the home of S.L. before and after each contact visit. [ 124 ] S.L. also seeks an order preventing B.V. from bathing the child and sharing a bed with the child. These are matters relating to how the child is raised and is solely in the purview of S.L. as the guardian. As there are no overnight visits, there is also little need for B.V. to bathe or sleep with the child. I will grant these orders. [ 125 ] As the child’s guardian, S.L. is also entitled to decide where the child will be taken.

S.L. does not wish the child to be taken outside the Lower Mainland during contact visits. There is no evidence that exercising contact time outside the Lower Mainland is in the child’s best interests. I will order that B.V.’s contact visits only occur in the Lower Mainland. [ 126 ] I turn now to address S.L.’s request for an order that B.V. not take the child to the Sikh temple or to provide the child with any religious instruction. A decision about religious training is a matter for a guardian to decide and so that is a matter left to S.L.

Attendance at the Sikh temple may involve a social component but a Sikh temple is also a place for religious worship and education. [ 127 ] I draw guidance from the decision A.R. and B.R. v. M.W. and L.R. , 2015 BCPC 285 , where the applicant grandparents, A.R. and B.R., sought an order for contact with their grandchild A.W. The grandparents expressed a wish to expose the child to their religion, which M.W., the mother and sole guardian, opposed. Her Honour Judge Frame made the following observations: 1. M.W. has a responsibility to look after the best interests of A.W.

That responsibility includes making decisions about religion. 2. The court should not interfere with a guardian’s decision about religion unless there is evidence, as opposed to simply a different viewpoint, that the guardian’s decision about religion is not in A.W.’s best interest. 3. Where the guardian has made a reasonable decision about the A.W.’s exposure to religion, the court should not interfere with that decision regardless of whether that decision reflects the views of the grandparents, society, or the court.

The court’s reluctance to interfere with M.W.’s decision on religion is neither an endorsement of her views nor a condemnation of the grandparents’ views. 4. It is not in the best interests of A.W. to be placed into circumstances of real conflict between her mother and her paternal grandparents. 5. When there are two or more guardians sharing parental responsibilities who have differing religious views, the court will often support the child being exposed to each religion involved. However, when as in this case, the guardian(

s) have a different religious view than a non-guardian, the court will respect the decision of the guardian(s). 6. It is in A.W.’s best interest to maintain contact with her grandparents provided that the conflict over religion does not undermine the parental decisions of M.W. [ 128 ] S.L. does not wish the child to be taken to the Sikh temple. B.V. has not proven it is in the best interests of the child that contact visits occur at a Sikh temple, especially in light of the fact this will cause conflict with S.L.

B.V. will still be able to teach the child about her South Asian heritage but she will have to do so outside of the temple. [ 129 ] S.L.’s last request is that B.V. be prevented from taking photographs of the child for the purposes of any court proceedings. If court proceedings are necessary, it may occur months and years later. I am not prepared to prevent potentially relevant evidence from being brought before the court, especially if the possible effect of the order is to deprive B.V. from taking any photographs of her granddaughter.

This request is denied. [ 130 ] I will now address the remaining requests from B.V. [ 131 ] B.V. seeks an order for compensatory contact time if any scheduled visits do not occur. This request is based on speculation. Any order for compensatory time has to wait until the circumstances surrounding the cancellation of contact time are known. [ 132 ] B.V. seeks an order that S.L. provide certain information about the child which S.L., as the sole guardian, is entitled to have. A non-guardian has no entitlement to this information.

If S.L. decides to share the information, she may but I will not order it. [ 133 ] B.V. seeks an order that M.V., his wife, J.S., and their children have contact with the child. This is an application by B.V. for contact with the child. It is not an application by M.V. or J.S. J.S. did not even testify at trial. Although M.V. and J.S. are related to the child, I will not assume that contact with them is in the best interests of the child without proper evidence or an application to the court.

I will not make an order permitting M.V., J.S. or their children to have contact with the child. [ 134 ] B.V. seeks an order that S.L. pay the sum of $5,000 for a wrongful denial of contact pursuant to s. 61 and 62 of the Family Law Act .

Section 61 of the Act permits such an order if an application is made. B.V. has not made a formal application for payment of an amount under s. 61. Her formal application to the court sought guardianship, parenting time and parental responsibilities, which then changed to an application for contact. In my view, an application for any form of penalty requires formal notice and a properly filed application pursuant to the Provincial Court (Family) Rules.

As that was not the case, I will not make an order pursuant to s. 61 of the Family Law Act . [ 135 ] Lastly, B.V. asks for an order that the parties mediate any issues before proceeding to court. This is intuitively a good idea but it can also be a source of delay when there is an important issue that needs a quicker resolution. I am hopeful that with the order I am making, there will be less disputes between the parties in future. The parties are also free to seek mediation, such as through the Family Justice Counsellors, when needed.

For now, I will not require the parties to participate in mediation prior to returning to court but if

circumstances change in future, the requests can be renewed.

SUMMARY [136] I order as follows: 1. B.V. shall have contact with the child on the first Sunday of each month from 10:00 a.m. to 4:00 p.m., and continuing on thefirst Sunday of each month thereafter commencing May 2, 2021. 2. B.V. will have such other contact time visits with the child as agreed to by the parties. 3. Three days prior to any contact visit, B.V. and A.D. will provide to S.L. a copy of a COVID-19 test result showing a negativeresult, failing which, the scheduled contact visit will be cancelled. If a cost is charged for the taking of a COVID-19 test, the parties shallshare the costs equally.

In such a case, B.V. will provide to S.L. with a copy of the payment invoice within 7 days after receiving theinvoice. Upon receipt of the invoice, S.L. will pay to B.V. one-half of the costs for the testing within 7 days. 4. The requirement for COVID-19 testing will end once the BC Government cancels the declaration of a state of emergencyregarding the COVID-19 virus, or if the parties agree in writing to cancel the requirement. 5.

Pursuant to s. 227 of the Family Law Act, each party must comply with all orders and directions issued in relation to COVID-19Virus by the Federal and Provincial government, the Public Health Offices of Canada and British Columbia, and any health carepractitioner caring for the child and the parties. Each party must also comply with the same directions by the Public Health entities inany foreign jurisdiction in which they are travelling with the child. 6.

B.V. be responsible for the pick-up and drop-off of the child at the home of S.L. before and after each contact visit, or at suchother place as agreed to by the parties. 7. During contact visits, B.V. will not do any of the following: a. take the child outside the Lower Mainland; b. take the child to a Sikh temple; c. provide the child with any religious instruction; d. permit M.V., J.S. and their children to have contact with the child; and e. bathe or sleep with the child. 8.

All other applications are dismissed. [137] Counsel for S.L. will prepare the order for approval as to form by B.V.’s counsel, who in turn will forward the order to theRegistry for filing. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia APPENDIX Chapman v. Chapman, 1993 BCSC 2598 Chapman v. Chapman, (Ont. C.A.) Giansante v. Di Chiara, (Ont. S.C.) T.F. v. K.R.C., 2010 BCSC 1808 Simmons v. Simmons, 2016 NSCA 86 D.D. v. A.C., 2017 BCPC 5 N.J.B. v. S.F., 2020 BCPC 53 N.F. v. H.L.S., 1999 BCCA 398 Fawcett v. Read, 2016 BCSC 310 J.L. and E.L. v.

D.L. and T.L., 2009 BCPC 225

C.C. v. D.A. and C.Z. , 2019 BCPC 126 R.L.H. v. T.R.P ., 2017 BCPC 374