L.M.P. v. M.A.G. et al. and A.L. et al. v. L.M.P. Date:, 2014 BCPC 181

Citation: L.M.P. v. M.A.G. et al. and A.L. et al. v. L.M.P. Date: 20140813 2014 BCPC 0181 File Nos.: 12886 and 14147 Registry: Merritt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.M.P. APPLICANT AND: M.A.G., D.J.P., K.P. and S.P. RESPONDENTS AND: AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.L. and T.L. APPLICANTS AND: L.M.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for L.M.P.: Carman Kane Counsel for K.P.: Graham Kay Appearing on her own behalf: S.P. Appearing on their own behalf: A.L. and T.L. Not appearing but a party to the action: M.A.G.

Not appearing but a party to the action: D.J.P. Place of Hearing: Kamloops, B.C. Dates of Hearing: June 10–14, June 17-21, July 8-12, July 23, September 23-27, November 4, November 6-8, December 9-13, 2013, January 27-31, February 14, February 25-27, 2014, May 13, 2014 Date of Judgment: August 13, 2014 [ 1 ] This trial commenced as a child protection file with two attendant applications for custody. The proceedings began before the change in the legislation, which added some complication and length to this matter. That being said, the issues of guardianship have now been resolved.

What remains are the two family law applications with respect to parenting time to be allowed to the grandmother of the children involved, L.M.P. [ 2 ] The children are J.A.G., born [omitted for posting] and J.S.G., born [omitted for posting]. [ 3 ] J.A.G. now resides with her two aunts, A.L. and T.L. J.S.G. now resides with her father, K.P. By way of the guardianship consent orders made in each action on September 25, 2013, L.M.P. remains a guardian of the children, with the limited parental responsibility under s. 41(

j) of requesting and receiving from third parties health, education or other information respecting the children. [ 4 ] While the Ministry of Child and Family Development has withdrawn its application because of the guardianship arrangements that have been made, it has communicated to the parties that L.M.P. should have no parenting time with J.S.G. until such time as J.S.G.’s counsellors recommend it; and that L.M.P. should only have parenting time with J.A.G. at J.A.G.’s request, until such time as her counsellors are satisfied that parenting time can be arranged in some other way. [ 5 ] A number of concerns were raised respecting L.M.P.’s ability to care for these girls unsupervised.

These concerns date back to the unresolved traumas in L.M.P.’s own upbringing; the issues with her parenting capacity of her own children; attachment issues; discipline skills; inattentive caregiving; favouritism; sexualization; stranger danger; safety concerns; and exposure to the biological mother of these girls, M.A.G.

When combined with the other less momentous parenting concerns, K.P. and the Ls. are concerned that parenting time not be extended except under the terms required by the Ministry of Child and Family Development, the children’s counsellors, and their own good parenting judgment. [ 6 ] I have the benefit of the evidence taken at a rather extensive trial as well as the written submissions from the parties filed by L.M.P. on March 28, 2014 (one for each proceeding), by A.L. and T.L. on April 16, 2014, rebuttal submissions by L.M.P. on May 2, 2014, and submissions by K.P. on May 9, 2014.

BACKGROUND [ 7 ] L.M.P. was born on [omitted for posting] in Karachi, Pakistan. While still a teenager, she gave birth to her daughter, A.L., born [omitted for posting]. L.M.P. lived in Pakistan through two Indo-Pakistani wars in 1965 and 1971. She moved to Canada in 1971. She married R.P. in 1973. [ 8 ] R.P. was physically abusive to L.M.P. while she was pregnant with her second child, C.P. The Ps. divorced in 1977. L.M.P. lived in Ontario with her children for a time as well. [ 9 ] L.M.P. moved to Merritt in 1982 and commenced a relationship with R.G. in 1983.

He already had a daughter, A.L., to whom L.M.P. became a step-parent. R.G. was abusive to C.P. who moved to his father’s home in Ontario in 1985. [ 10 ] In 1986, L.M.P. gave birth to M.A.G., who is the mother of the two children in these proceedings. In 1987, L.M.P. and R.G. separated. [ 11 ] From the time of her separation from R.G., L.M.P. raised A.L., A.G. and M.A.G. C.P. returned to Merritt to live with L.M.P. in 1993 or 1994. Around 1994 or 1995, A.G. went to live with her biological mother in Ontario. [ 12 ] M.A.G. was diagnosed with Tourettes, had weight issues and was bullied at school.

She began running away from home at a young age. At the age of 14, she began living with an older man. By 2002, M.A.G. had moved to Kelowna where she became quite immersed in the drug lifestyle. [ 13 ] In 2007, M.A.G. gave birth to J.A.G., who was removed by the Ministry of Child and Family Development at birth. M.A.G. had admitted to using cocaine throughout her pregnancy with J.A.G., including the day of J.A.G.’s birth. [ 14 ] On August 26, 2008, L.M.P. was granted an interim order under the Family Relations Act granting her custody of J.A.G.

J.A.G. was transferred into L.M.P.’s full time care by the Ministry on November 26, 2008 under a six month supervision order. [ 15 ] M.A.G. gave birth to J.S.G. on [omitted for posting]. At the time of her birth, J.S.G. had cocaine in her system. Ultimately, she was also transferred to L.M.P.’s care. Her biological father is K.P., who was born on [omitted for posting]. His parents are the other P. parties, S.P. and D.J.P. [ 16 ] K.P. had his own drug problems, having an addiction for many years. He attended treatment more than five times, but has been clean of drugs since September, 2009.

[ 17 ] On October 29, 2009, L.M.P. was granted a Family Relations Act order giving her sole custody of J.S.G. and joint guardianship with D.J.P. and S.P. L.M.P. had J.S.G. in her care from Monday to Friday each week, while the Ps. had her almost every weekend. [ 18 ] In August, 2011, the Ministry of Child and Family Development received a report that children in L.M.P.’s neighbourhood were out playing and were unattended. When social workers attended L.M.P.’s residence, they learned that J.A.G. had been missing for a brief period of time.

L.M.P. seemed to recognize that the children should not have been left unattended and so the Ministry file was closed at that time. [ 19 ] On November 8, 2011, the Ministry received a report from P.D., a neighbour of L.M.P. She had heard L.M.P. screaming in rage the previous evening. When the Ministry attended L.M.P.’s home, they gave her the option of removal or a safety plan placement of the children with family. This action was, in part, predicated on misinformation or misunderstood information obtained from another neighbour.

As a result of the safety plan placement, J.S.G. was placed in the care of D.J.P. and S.P., and J.A.G. was placed with her aunts, A.L. and T.L. [ 20 ] Tim DeMerchant, the social worker in charge of the file, interviewed J.A.G. on December 12, 2011. J.A.G. told Mr. DeMerchant that Nana (L.M.P.) yells and spanks. This was at the same time as a family group conference was held. L.M.P. had attended the conference expecting the children to be returned to her. On that day, J.S.G. was removed by the Ministry and a presentation hearing was scheduled for December 14, 2011.

J.S.G. was placed in the care of D.J.P. and S.P. on a restrictive foster care agreement. [ 21 ] On the commencement of the investigation to the point of placement of the girls with the restrictive foster parents, a number of issues arose which I have already referred to that caused the Ministry to believe that removal was necessary if the voluntary placement did not occur. Over time, the Ministry attempted to work with L.M.P. to mixed success. Ultimately, the Ministry determined that the girls ought to be removed permanently, which led to those proceedings and to the applications for guardianship.

Based upon the investigation and the rehabilitative efforts made, the Ministry and the applicant guardians seek to restrict L.M.P.’s parenting time with the children until such time as the counsellors for the children approve contact, and in the manner recommended by those counsellors. As a result, K.P. seeks to prevent parenting time until J.S.G.’s counsellors agree she is ready. A.L. and T.L. seek to restrict J.A.G.’s time with L.M.P. except in the manner recommended by J.A.G.’s counsellor and approved by the Ls.

L.M.P. disputes the allegations of concern raised by the Ministry and by the guardians and, as a guardian herself, seeks parenting time on a specified basis with each of the girls. Without belabouring all of the evidence led over several days of this trial, I propose to highlight only those areas of concern. BEHAVIOURS [ 22 ] J.S.G. exhibited behaviours that are in keeping with the concerns raised by the witnesses. She soiled and wet herself, blanked out, had extreme tantrum behaviour, yelled and hit, and exhibited uncontrollable sobbing.

It can be said that some of this may be a product of her exposure to drugs in-utero, as well as the disruption in her life as a result of the removal. However, it has to be remembered that J.S.G. spent her weekends already with D.J.P. and S.P. This placement was not as profound a disruption as it might be if she were placed in foster care with a complete stranger.

She had also not exhibited those behaviours when she only visited the Ps. on weekends. [ 23 ] J.A.G. exhibited traumatized behaviours when forced to engage in Skype conversations with L.M.P. which included crying, hiding, refusing to speak and lying on the floor face down. L.M.P. dismissed these behaviours but they clearly show that the child was frustrated with being forced to engage in this activity. L.M.P. put her own interests in engaging with J.A.G. over the child’s needs. This was a persistent theme with both girls. [ 24 ] While in the care of the Ls., they kept a calendar outlining J.A.G.’s enuresis.

The frequency of this wetting coincided with unsupervised visits between J.A.G. and L.M.P. Wetting herself caused J.A.G. distress and confusion. The Ls. testified that such wetting accidents did not occur during any other times of high excitement or busy-ness. [ 25 ] L.M.P. has suggested that J.A.G.’s behaviours may be explained by the possibility that she has fetal alcohol spectrum disorder. There is no evidence, medical or otherwise, that she has FASD.

She was exposed to drugs in-utero that given but, J.A.G.’s behaviours and symptoms of distress have decreased over time, it seems unlikely that this is the cause of those behaviours. Since the remaining behaviour is wetting herself after unsupervised visits, on a balance of probabilities, it is the unsupervised visits leading to the distress. ATTACHMENT CONCERNS [ 26 ] Magdolina Tornyai is a counsellor who worked with J.S.G. regarding her attachment issues with L.M.P. She assessed J.S.G. to be suffering from ambivalent and disorganized attachment in regard to L.M.P.

She testified that it is possible for the attachment issues to become more secure following hard work, communication and trauma counselling. Mr. Kane argued that Ms. Tornyai’s testimony ought to be given little or no weight based on four critical failings he identified in her report. [ 27 ] He said Ms. Tornyai’s assessment of J.S.G. did not address all of the caregivers in J.S.G.’s life but focused only on L.M.P. He said the assessment was incomplete because Ms. Tornyai’s report did not include details of the process and results of the subjective adult attachment interview performed with L.M.P. Ms.

Tornyai was unable to effectively communicate her findings to the court orally, nor was her written report or e-mail to the social worker, Aman Mann, clear. The report made broad references to “the children” confusing the reader about which conclusions were being drawn about J.S.G. or about children generally. Finally, Mr. Kane argued that Ms. Tornyai’s report was informal in the format of an e-mailed letter and was not presented in a manner appropriate for court proceedings. That aside, Ms.

Tornyai did not make any recommendations regarding L.M.P. not having parenting time with J.S.G. [ 28 ] Respecting the focus on L.M.P., Mr. Kane argued that it was S.P. who took J.S.G. to Ms. Tornyai and reported issues that S.P. observed. Mr. Kane argued that the problems only manifested themselves when J.S.G. was in S.P.’s care but blame was ultimately

assigned to L.M.P. He argued that this was a one-sided approach to analysing the potential sources of J.S.G.’s behavioural issues which led to an incomplete and critically flawed assessment. Mr. Kane felt that it was important that all of the caregivers in J.S.G.’s life be assessed instead of just L.M.P. Instead, Ms. Tornyai never met with D.J.P., only met with K.P. twice, and met with S.P. five times compared to the three one-on-one sessions she had with L.M.P. Despite the meetings with the other caregivers, Ms. Tornyai did not complete an adult attachment interview with them.

As a result, the possible traumas and issues of parenting for K.P., as well as the disclosed difficulties S.P. was having caregiving, were not explored by Ms. Tornyai. Mr. Kane argued that they too had significant trauma issues in their past which were unresolved. [ 29 ] Ms. Tornyai explained, and I accept, that the attachment interviews were done with L.M.P. because she was expected to be the primary caregiver. I also saw no evidence that J.S.G.’s behaviours were persistent while in the care of D.J.P. and S.P. or K.P.

As such, it does not seem necessary to conduct attachment assessments of the remainder of the caregivers. Should it be necessary to assess J.S.G.’s attachments in the context of the whole of her counselling, I am sure that K.P. will arrange same. In the meantime, it does not impact Ms. Tornyai’s attachment assessment with respect to L.M.P. [ 30 ] Mr. Kane also argued that Ms. Tornyai’s report did not take into account that L.M.P.’s role had been reduced to an occasional playtime visitor, as opposed to the primary caregiver. [ 31 ] Mr. Kane argued Ms.

Tornyai did not appropriately apply the adult attachment interview protocol or explain the process to the court. Ms. Tornyai referred to various professionals in her testimony reducing her evidence to information of an academic nature rather than of applied knowledge and experience. As a result, there was confusion and misunderstanding as to what actually occurred with the family and what was merely background information. Additionally, the notes Ms. Tornyai kept with respect to the interview process were destroyed when she left the Child, Youth and Mental Health.

There was frankly puzzling and unsatisfactory evidence regarding why this would ever have been done. [ 32 ] This ties in with Mr. Kane’s argument that Ms. Tornyai’s evidence was confusing and ineffective. She was unable to effectively convey her knowledge, findings and conclusions to the court or to other professionals working with J.S.G. Even in her e-mail to Ms. Mann, Ms. Tornyai switched back and forth referring to herself in the first person and then calling herself “this therapist”. Additionally, other statements referring to “the child” made it unclear whether Ms.

Tornyai was referring specifically to J.S.G. or children generally. Mr. Kane argued that Ms. Tornyai’s testimony created more confusion than clarity with regards to mental health generally and J.S.G.’s mental and emotional healthy specifically. Although he acknowledged that Ms. Tornyai was qualified as an expert, he argued that her knowledge and expertise were not effectively communicated to the court and therefore should not be relied upon. [ 33 ] On the issue of informality and reliability of the report, Mr. Kane cited the informal nature of the e-mail.

He also identified absence of notes of her meetings with each of the parties and the fact that she did not work with any of the other caregivers but simply provided them with materials to read, and provided no practical steps for making progress with respect to J.S.G.’s attachment issues. Finally, Ms. Tornyai referred to L.M.P.’s parenting requiring her to “severely” deal with her own problems. However, she provides no insight on how L.M.P. should accomplish this. [ 34 ] Mr. Kay expanded on Ms. Tornyai’s findings. He noted that Ms.

Tornyai found L.M.P. to be rigid in her approach to J.S.G. preventing her from being in tune to J.S.G.’s needs. She found that L.M.P. focused on her own need to be in control. Mr. Kay did not otherwise address the shortcomings Mr. Kane identified in Ms. Tornyai’s evidence. [ 35 ] I found Ms. Tornyai’s evidence to be extremely frustrating. The testimony wandered and rambled in directions not responsive to the questions put to her. Her testimony was confusing and unfocused making it unclear whether she was providing general evidence on attachment issues or specific evidence on J.S.G.’s issues on many occasions.

However, I was able to discern to some small degree the issues and observations Ms. Tornyai identified that were specific to J.S.G. As poor a witness as Ms. Tornyai may be, she is qualified to do the attachment assessment that she completed and to draw the conclusions she drew. I am satisfied that she observed an insecure attachment between J.S.G. and L.M.P. not just based on reports from S.P., but based on her own observations of L.M.P. interacting with J.S.G. It is her observations of these interactions that were of the most use of the court as opposed to labelling the attachment concern. [ 36 ] Similarly, Mr.

Kane argued that Tony Broman’s testimony ought to be viewed cautiously because of his suspension from work and his unresponsiveness on his last day of testimony, as well as the sources of his information. Mr. Kane acknowledged that, despite these failings, Mr. Broman provided the court with a number of insightful comments regarding J.S.G. He agreed with Mr. Kane that J.S.G. may be getting emotionally charged when at L.M.P.’s home because she connects the location as her true home. He agreed that J.S.G. could have anxiety associated with L.M.P.’s home because she is not allowed to stay there.

He also agreed that it was not fair to say that J.S.G.’s behaviours were not necessarily related to the visits with L.M.P. He felt that the negative behaviours following visits were inconclusive because he had not made any direct observation himself. However, he did observe that J.S.G. may feel unsafe in L.M.P.’s home and therefore releases the negative behaviours later when she is in a safe environment. On the other hand, he agreed that she may be fine with the visits but misses her grandmother when she returns to the P.’s, and therefore acts out. [ 37 ] Mr.

Broman also agreed that it is possible the bedwetting that followed a particular visit to L.M.P. may have also been a result of S.P.’s handling of J.S.G. at dinner that evening. However, this does not address the numerous other bed and self-wetting incidents related in evidence. Certainly there are other possible explanations to the behaviours but the one which is supported by the evidence is the post-visit decompensation. [ 38 ] Finally, Mr. Kane argued that Mr.

Broman’s testimony based on the axis for diagnostic and statistical manual of mental disorders was faulty and that he did not take into account other stressors in J.S.G.’s life such as removal from her home, inadequate discipline, discord with siblings, parental over-protection and discord among the adults in her life. In cross examination, Mr. Broman agreed that those other factors could have been included in his diagnosis. Even if they had been, they are not the most significant factors for J.S.G. [ 39 ] Mr. Kane also mentioned a number of other concerns he identified with Mr.

Broman’s testimony, including mixing up the files between J.A.G. and J.S.G., lack of familiarity with the history of the file and the parties, and his lack of awareness of methodology used

by Ms. Tornyai. Finally, Mr. Kane said that between Mr. Broman testifying on December 10, 2013 and his required return on January 27, 2014, Mr. Broman was suspended from work. Court was advised Mr. Broman would not be able to attend court. Mr. Broman attended and resumed his testimony on the direction of the court. However, he presented with an odd demeanour and was unresponsive to certain questions. Mr. Kane described Mr. Broman as mentally distancing himself from the courtroom and the questions being asked of him. On this final point, Mr. Broman had explained that he had been suspended from work.

He was clearly distressed by that. His failure to attend court when required was entirely a product of the Ministry of Child and Family Services assuming that it had somehow acquired the power to tell the court when its employees, suspended or otherwise, would or would not be returning to court. Mr. Broman was caught between the proverbial rock and hard place when his employer told him he was not to attend court or explain anything to do with his circumstances. I have taken that extraordinary pressure into account when assessing Mr.

Broman’s testimony. [ 40 ] Despite his reticence on the second occasion and his apparent shortcomings when considering the two files, I found Mr. Broman to be quite helpful in identifying the challenges J.S.G. has. Mr. Broman was not hired by any party to be an expert in this litigation. He was performing a function as a counsellor without expecting to have to give an opinion. His evidence merely reflects that. [ 41 ] Mr. Kane was also critical of the source of Dr. Van Leeve’s opinion in her report. Of course, all of the information she received came from K.P. and S.P., as well as her brief examination of J.S.G.

On the basis of what she had learned, Dr. Van Leeve opined that J.S.G. had a reactive attachment disorder and recommended she have no further contact with her grandmother for the interim. Mr. Kane argued that the basis for Dr. Van Leeve’s impressions was on information which was inherently biased and unreliable. He rightly argued that, being based on S.P.’s information, I could only rely upon the opinion of Dr. Van Leeve if I found S.P.’s testimony to be reliable and truthful, and that J.S.G. had suffered trauma. Dr.

Van Leeve did acknowledge in her viva voce testimony that there were other factors at play including J.S.G.’s exposure in-utero to drugs and alcohol. Dr. Van Leeve also acknowledged that she was not able to make a mental illness diagnosis as she is not a psychiatrist. However, the purpose of her assessment and opinion was to have J.S.G. referred to child and youth mental health, which was done. [ 42 ] Mr. Kane argued that there were a number of other stressors not put to Dr.

Van Leeve which he says would have contributed as well to the stresses in J.S.G.’s life including removal from L.M.P.’s care, placement in foster care, introduction to a sibling she never knew she had, and the territorial sibling rivalry she had with her sister A. There are also the ongoing abandonment issues with respect to her biological mother, the introduction of K.P.’s girlfriend J. and children, and the frequent changes to J.S.G.’s

schedule and primary residence. The separation from her sister J.A.G., despite the tensions between the two when they are together, must also have had a significant impact on J.S.G. [ 43 ] I accept that all of these stressors are additional factors to be considered. However, on the balance of the evidence regarding L.M.P.’s conduct and her lack of cooperation with those who were specifically assigned to help her learn improved parenting skills, I am satisfied that the attachment issue is a real and live one.

I accept that there would be bias inherent in the information related by S.P. but she was as forthright as could be expected. I do find her testimony was reliable and truthful. [ 44 ] Certainly J.S.G. has behaviour issues when she returns to the S.P. home after unsupervised visits. I am satisfied on the balance of the evidence that this is a product of the overstimulation and release of stress from her visits to her grandmother.

This is not surprising, given her in-utero drug exposure, her disrupted life, and her continued dysfunctional relationship with L.M.P. [ 45 ] With respect to J.A.G., the attachment assessment was conducted by Elina Falck, who is a team leader for Child and Youth Mental Health in Salmon Arm. Mr. Kane argued there were a number of problems with Ms. Falck’s assessment and opinion.

These included her purported friendly relationship with T.L., the basis of the recommendations being predicated on information from T.L. and A.L. who had a best interest in the outcome, and that the assessment was done only on L.M.P. and not her other caregivers. I entirely reject the argument that Ms. Falck was friends with T.L. and therefore biased. The evidence simply does not support that allegation. They worked in the same building in different departments, knew each other, but were not social acquaintances. [ 46 ] It is a fact that Ms. Falck is not certified to do an attachment assessment.

Her assessment was done for clinical purposes in order to direct her counselling. Ms. Falck was not counselling J.A.G. for the purposes of providing a medical legal opinion to the court. She was assisting a child who had been brought to her with behavioural issues. While Mr. Kane complains that only L.M.P. was assessed, this gave L.M.P. an advantage over all of the other guardians in J.A.G.’s life to present her own perspective and demonstrate her positive relationship with J.A.G. She failed to do so. [ 47 ] As with J.S.G., J.A.G.’s behaviours are explained by a number of factors apart from L.M.P.

Her behaviours can be likely linked to fetal alcohol spectrum disorder, in-utero drug exposure and the disruption in her life caused by the removal. All of these factors are supported on the evidence. The dysfunctional attachment issues with L.M.P. are more significant and treatable at this point. [ 48 ] The Ls. highlighted the concern they had with respect to the lack of stability in J.A.G.’s homes since her birth.

In addition, they relied upon the evidence of Elina Falck, who provided helpful suggestions to the Ls. to guide them in reintroducing the appropriate nature and amount of contact L.M.P. would have with J.A.G. The attachment issue does exist but is being properly addressed by the Ls. and J.A.G.’s counsellor. What is required now is L.M.P.’s cooperation. PAST TRAUMA [ 49 ] L.M.P. acknowledges that she has had a difficult life but does not seem to appreciate that she is not coping well with the aftermath of that constellation of personal traumas.

She was abandoned by her biological father, lived in an abusive household with a stepfather, lived through two wars, fled to another country and survived a series of abusive marriages and relationships. She has worked hard for most of her adult life but often found herself living in chaos. L.M.P. believes that she is strong as she has survived these various traumas. However, she has not often coped well. Her daughter, stepdaughter and daughter-in-law all testified to various dysfunctions they lived through and observed over the years.

These themes seem to be beginning to repeat themselves in the lives of J.A.G. and J.S.G. [ 50 ] L.M.P. denies that she has issues dealing with the various traumas in her life. She believes that she has been strong and has survived all of these incidents. However, it is clear in the evidence of her children and the evidence of those who have had contact with her grandchildren that L.M.P. is more in a denial mode than an insightful one. Rather than confronting the various traumas that have

impacted her and her ability to care for her children and grandchildren, she has preferred to minimize and ignore those traumas. As a result, she lacks insight into the roots of her behaviour and continues in her course of conduct despite every effort to correct and rehabilitate her parenting behaviours. Rather than embracing the counselling and learning experiences, she has treated these as merely obstacles she must overcome. As a result, her conduct tends to devolve to that which caused concerns in the first place.

PARENTING ISSUES [ 51 ] There were a significant number of allegations regarding L.M.P.’s parenting style that ultimately led to the Ministry’s more aggressive action and to the children being placed with their present guardians. In the end result, L.M.P. has taken a number of parenting courses, an anger management course and personal counselling for the past two years. She has worked hard to address the Ministry concerns often without any support from the Ministry. Her counsellor testified that L.M.P. is not traumatized and that she can conduct herself appropriately.

The problem is that the appropriate behaviour is short-lived. She can mimic what she is required to do but she cannot sustain the desired behaviour. [ 52 ] Without belabouring all of the evidence led at trial over the nearly 40 days of testimony, a number of parenting issues with respect to L.M.P.’s children and grandchildren were raised.

These included discipline, inattentive caregiving, favouritism, sexualization and inappropriate safety implementation. [ 53 ] In addition, the observations made by the visit supervisors as well as the counsellors conducting assessments was that L.M.P. focused too much on meeting her own needs as opposed to the needs of the children. This was demonstrated in the way she directed their play time; her excessively effusive greetings and farewells; and her overly emotional interactions on Skype, during telephone calls and in person.

I find that the evidence from the various witnesses in this regard was compelling, consistent and credible. [ 54 ] There were also observations by the visit supervisors and the social workers that L.M.P. persisted in placing her own needs and expectations ahead of the children despite her counselling. Even the counselling she has pursued on her own has been focused on how to achieve what she wants rather than meeting the challenges she has.

As a result, while she may be able to mimic the behaviours expected of her, the underlying behaviours remain the same. [ 55 ] What is most disturbing is that L.M.P. does not accept this assessment and persists in her behaviours to this day. This was demonstrated particularly during J.A.G.’s birthday event. L.M.P. brought a friend who was supportive of L.M.P. and hostile toward A.L. and T.L. L.M.P. persisted on that occasion and on others in conducting herself in a manner that she had been specifically directed not to do.

It is this persistent conduct that leaves the parties unwilling to accept that unsupervised time with the grandchildren will be appropriated. [ 56 ] As traumatized as L.M.P. is by the removal of these children from her daily life, she must come to accept that the quality of time she has with those children must be guided by their best interests, and not hers. L.M.P. is not yet there. That was clearly evident in her own testimony.

While it is a natural thing for any parent or grandparent to feel a strong attachment to the children and wish to be with them as much as possible, it is not appropriate to persist in placing those needs ahead of the needs of the children. DISCIPLINE [ 57 ] The children reported that L.M.P. yelled at them and hit them. J.A.G. also reported being afraid of L.M.P. Mr. Kane argued that this was as a result of a game the children played. I do not accept that. It entirely lacks any air of reality.

It is evident from the witnesses that L.M.P., while it may not have been a frequent occurrence, did lose her temper with the children. She yelled at them in such a manner that they were clearly terribly upset. Their behaviours suggest that this occurred on more than one occasion. I find that L.M.P., when she lost patience with the children, yelled and struck. These are inappropriate parenting tactics. [ 58 ] L.M.P.’s stepdaughter, A.G.(1), testified that she was hit frequently by L.M.P. during her childhood including with such objects as a wooden spoon or coat hanger.

She was told constantly that she was bad and would turn out a whore like her mother. [ 59 ] Ms. L. did not recall being hit herself but did see her brother C.P. being hit frequently, including with objects. In addition, she said L.M.P. would scream and yell at M.A.G., the biological mother of the girls. She too was hit with a coat hanger and called “a little bitch”. [ 60 ] This dysfunction led to all of C.P., A.G.(1) and M.A.G. moving out of L.M.P.’s home in their early adolescence. [ 61 ] L.M.P. has acknowledged that there have been parenting issues and challenges she failed to meet appropriately in the past.

However, she tends to minimize the impact of those behaviours on her own children which, in turn, proves an obstacle for her insight into learning how to properly parent her grandchildren. [ 62 ] When J.S.G. was placed with the Ps., they reported that after unsupervised visits, J.S.G. would begin hitting and yelling, and would look at her reflection in the mirror calling herself “bad, bad, bad”. [ 63 ] It is difficult to know the degree to which corporal discipline played a

part in L.M.P.’s parenting of J.A.G. and J.S.G. They have learned behaviours that are alarming to their present guardians. L.M.P.’s history of physical and verbal abuse of her children as well as evidence that she continues to place her own stress ahead of that of her grandchildren supports the likelihood that there has been inappropriate corporal discipline of these children. That aside, the reports of the yelling from the neighbours and from the children as well as the alarming behaviours of these children satisfy me on a balance of probabilities that L.M.P. persists in discipline which involves a lack of emotional control on her

part coupled with hitting, yelling and name-calling. INATTENTIVE CAREGIVING [ 64 ] One of the reports that led to the removal of the grandchildren was with respect to leaving J.A.G. unattended on her own in the park at L.M.P.’s complex. This was extremely dangerous. L.M.P. said that she had only left her for a moment to use the washroom. The

social workers confused the interview they had with a neighbour, believing that L.M.P. had in fact gone to take a shower. The neighbour was discussing an entirely different event where that neighbour had care of the children while L.M.P. had the shower. The fact that the social workers confused this event does not change the reason for the voluntary placement and ultimate removal.

It may have changed the perspective the social workers took upon the matter and putting the safety plan into place but, on the balance of the evidence, I find that the outcome would have been no different. [ 65 ] Regrettably, the inattention in the park was not a single event. There were other occasions when L.M.P. also did not attend to J.A.G. including while they were at ball games and even at A.L. and T.L.’s wedding. [ 66 ] The Ls. led evidence as well that the girls were permitted, at the young ages of one and two years old, to climb outside stairs and jump on a trampoline unsupervised.

They were also permitted to play with a large dog that had already bitten an adult. As isolated incidents, these would not be alarming. When coupled with the other concerns about the lack of attentiveness at ball games and other social occasions it is clear that L.M.P. does not provide appropriate supervision of these girls when they are in her care. This appears to be history repeating itself. [ 67 ] A.G.(1) testified that she and M.A.G. were left alone frequently at very young ages.

A.L. testified that as a young girl her mother would leave her alone to babysit her little brother when A.L. was herself only six or seven years old. When A.L. was barely older, L.M.P. would leave the country to cross the border and visit friends. L.M.P. denied this saying that she would leave a neighbour to look in on the children. Even if that were so, it is entirely inappropriate to leave young children alone and unsupervised. I do not accept that there was a neighbour looking in on the children.

It would have been obvious at least once on those many occasions that this were so. [ 68 ] The evidence of L.M.P.’s parenting history is that L.M.P. did not provide appropriate supervision for her children either. They were exposed to alcohol use, parties, sexual activities, strangers in their home and domestic violence. While L.M.P. testifies - and I accept - that her partying behaviour has discontinued for some years now, her inability to supervise the children first and socialize later or second persists.

FAVOURITISM [ 69 ] L.M.P. was repeatedly reminded not to show favouritism between the children but persisted in her conduct. This is inappropriate in any circumstance but is particularly so when L.M.P. knew that she was being observed to determine whether her parenting skills were improving. This necessarily led to conflict between the sisters, compounding their behavioural issues and treatment. [ 70 ] L.M.P. acknowledged from time to time that she was playing favourites and that she was making every effort not to do so. Unfortunately, the lesson did not seem to entrench itself in a long-term pattern.

SEXUALIZATION [ 71 ] A.L. gave testimony about photographs taken of her by one of L.M.P.’s male friends when A.L. was a pre-teen. The photograph is outrageous. A.L. is wearing a negligee and posed in a very sexual manner. L.M.P. minimized this saying that she received the negatives and there was no chance that this photo could be placed on the internet. It shows a completely fundamental lack of understanding of the mere fact of being sexualized in this matter. It is disturbing to say the least.

Consequently, when concerns were raised about possible similar sorts of photographs being taken of the grandchildren, and possible sexualized behaviour, it is understandable that A.L. thought this was a repeat of past conduct. [ 72 ] A.G.(1) testified that she felt unprotected by L.M.P. and was sexually molested by a male brought home by L.M.P. This is against the backdrop of the children being exposed on a regular basis to intoxicated adults and sexual activity. [ 73 ] L.M.P. also exposes the girls to people she does not seem to know particularly well.

A man whose name is Terry - last name unknown - who is known to be associated with M.A.G., is permitted to spend time with J.A.G. and J.S.G., including having the girls sit on his lap.

While there is no evidence that there was any impropriety on his part, L.M.P.’s coy and often belligerent response to providing any evidence about this man is troubling. [ 74 ] In the end result, there is no evidence before me that there were any provocative photos taken of J.A.G. and J.S.G., or that there was any sexualized behaviour. [ 75 ] The concern remains of the number of people the children are exposed to without any regard to whether they are appropriate people for them to interact with. This includes the male friends of M.A.G.

While they may indeed be entirely harmless, L.M.P. is not forthcoming when others expressed their concerns. This leaves the very great concern that the girls are placed at risk. [ 76 ] However, I will note that concerns were also raised about sexualizing J.S.G. by painting her fingernails. It has to be borne in mind that when L.M.P. was asked not to do so, she was the primary guardian of J.S.G. with every expectation that J.S.G. would be returning to her home. It was entirely inappropriate for the Ps. to try to impose their will on this subject on L.M.P.

It was equally inappropriate for the Ministry to support the Ps. I do not find the painting of the nail polish on J.S.G.’s fingernails to be sexualization in any regard. Nor do I find L.M.P.’s discontent over the request that she not do so to be at all inappropriate. The Ps. overreached their role and the Ministry responded inappropriately. However, if K.P. or the Ls. now prohibited this activity, L.M.P. would be expected to comply.

STRANGER DANGER [ 77 ] There were similar concerns raised about the apparent lack of discretion in exposing the children to new people or not impressing upon them any sense of stranger danger. The children are variously described as very outgoing and disclosing far too much information to veritable strangers. When this is assessed in conjunction with the lack of supervision in the park, it raises significant concerns. L.M.P. did not seem to see this as a concern. This lack of insight compounds the risks the children are exposed to.

SAFETY [ 78 ] This is one area of evidence which confounded me. There were various complaints about L.M.P. walking down the street without holding the hands of the children. There were complaints about L.M.P. playing a game on the stairs where the children would jump into her arms. There were complaints about L.M.P. allowing the children to jump on a bed. None of these are safety concerns that should result in any report to or action by the Ministry. It should also not provoke any concerns about parenting time with L.M.P.

Any guardian has to exercise the appropriate degree of attentiveness but I found these complaints to be bordering on ridiculous. [ 79 ] I am also bewildered by the Ministry’s concern that L.M.P. would leave the children to play on one floor level while she attended to tasks on another floor level. This is astounding. I cannot fathom that any guardian should be required to hover over children at play leaving all manner of tasks unattended unless that play is interrupted to cart the child from room to room. A properly child-proofed home should more than adequately address safety concerns.

I do not understand that her home was not adequately child proofed for this purpose. I consider this evidence to be completely irrelevant to L.M.P.’s parenting skills. M.A.G. [ 80 ] There is perhaps no other area of complaint that so profoundly supports the concerns of K.P. and the Ls. as L.M.P.’s persistent exposure of the children to their biological mother, M.A.G. There is no dispute that M.A.G. is an entrenched drug addict. Despite the obvious inappropriateness of exposing these children to such a person, L.M.P. did so. She was attending to M.A.G.’s best interests and not those of the children in her care.

Even after the children were removed and had returned for unsupervised visits, L.M.P. persisted in exposing these children to M.A.G. Almost invariably, M.A.G. was coming down from a high whenever she came to stay with L.M.P. In what must have been a frightening situation for the girls, L.M.P. permitted M.A.G. to sleep off her drugs while the children were in L.M.P.’s care. M.A.G. would make an appearance long enough to feed herself and return to sleep.

From the evidence before me, M.A.G. would be anxious to get back to her drug lifestyle and showed little patience for the children. [ 81 ] L.M.P. acknowledged that M.A.G. was occasionally unsafe around the children, particularly when she became impatient with them while she was recovering from her drug use. This behaviour was witnessed by others on at least one occasion when she screamed at her mother to attend to one of the children who was crying.

There is nothing in any of this that shows L.M.P. was taking the needs and safety concerns of her grandchildren into account when she allowed M.A.G. into her home or the home of her son. [ 82 ] The appropriate conduct would have been that which is exercised by A.L. A.L. assesses M.A.G. to determine where she is in coming off her drugs. If she is adequately clean so that she will not exhibit inappropriate behaviour around J.A.G., then M.A.G. is permitted to see J.A.G.

This is how an appropriate and responsible guardian conducts themselves. [ 83 ] It is evident from L.M.P.’s persistent attitude about M.A.G. that she will continue to permit M.A.G. to see the children when she wishes to, regardless of M.A.G.’s condition. More concerning is that she will continue to provide a home and a safe haven for M.A.G., despite the danger it poses to the grandchildren, which is a noble but misguided act. CONSPIRACY [ 84 ] I cannot leave an assessment of the evidence without addressing the conspiracy issue. This was the topic of some frustration during the course of the trial.

L.M.P. initially believed that the Ls. and Ps. were working together to take the children from her. It would be impossible for any right thinking person not to see a conspiracy although, on the balance of the evidence, I find there was no such thing. [ 85 ] From L.M.P.’s perspective, a friend of S.P. reported the incident that led to the removal of the children. J.S.G. was placed, as a result, with S.P. who had joint guardianship with L.M.P. [ 86 ] T.L. was working with the Ministry of Child and Family Development in Merritt.

Instead of the Ministry sending social workers from an entirely different office to attend the report, they sent two people who worked in the same office as T.L. It does not matter that L.M.P. agreed to the safety plan for J.A.G., placing her with T.L. and A.L. She did so on the understanding that after an investigation of a brief nature, the children would be returned to her. She had no expectation that J.A.G. would live in any permanent way with A.L. and T.L.

It is entirely understandable that she would come away from the experience believing that T.L. influenced the Ministry in this matter. [ 87 ] The evidence does not support a conspiracy. I do not accept that L.M.P. labours under some mental health issue that compels her to see this conspiracy. The facts may not bear it out, but the perception does. I believe L.M.P. has now come to accept that this was not a conspiracy. That she did so in the beginning does not negatively affect her evidence or impact the outcome of this case.

SUMMARY [ 88 ] I was provided with a number of cases which are a helpful guide but do not impact what is otherwise a fact-driven case. Ultimately, I must consider whether it is in the best interests of the children to interfere with the guardians who have the role of determining the children’s associations, by imposing parenting time on those children. [ 89 ] I have specifically not yet addressed the issue of how much of the children’s reports I have accepted as necessary and reliable. On several occasions, the girls have reported to various parties that L.M.P. hits and yells.

There is also the evidence of observations the guardians have made about what the children say and do when they are being disciplined. Finally, the children have from time to time indicated that they do or do not want to visit with L.M.P. and that they do or do not want to live with her. All of these are hearsay statements. Given the age of the girls, the context of these proceedings as well as the stress these girls have encountered in their lives, I

find that these statements are necessary. I also find them reliable to the extent that they are supported by observations of physical behaviour and observations of interactions with L.M.P. I have taken into account that the children have gone back and forth in expressing their desires. I have considered the circumstances in which these desires were expressed and the disclosures were made. In the context of these qualifications, I find that the statements made by these children from time to time are reliable.

However, they are only part of the many factors which militate against granting the application sought by L.M.P. [ 90 ] J.S.G. is a healthy and energetic child. She has, as Mr. Kane noted, requested on a number of occasions that she live with L.M.P. These requests are now dated and it is unclear whether she would still have the same wish. Over time, J.S.G.’s visits to L.M.P. were somewhat mixed. On some occasions, she appeared to have a good time and was fully engaged. On other occasions, there was frustration and conflict.

There is also a dispute about whether or not J.S.G. enjoys her telephone conversations with her grandmother. Certainly K.P. does not enjoy them, describing J.S.G. as distracted and acting out. [ 91 ] J.S.G. now resides with her father which was the ultimate plan between L.M.P. and K.P. in any event. He is not opposed to J.S.G. having contact with L.M.P. but wants it to be with the guidance and recommendation of the mental health professionals who are assigned to J.S.G. There is no question that there was animosity expressed in the past by K.P.

However, I do not find that it is to the extent that he would exclude L.M.P. from J.S.G.`s life unless it was in J.S.G.`s best interest that he do so. [ 92 ] I also noted at paragraph 4 of these Reasons that the Ministry has taken the position L.M.P. should not have parenting time with J.S.G. unless and until her counsellors have recommended it; and that parenting time with J.A.G. be at her request until her counsellors are satisfied it can be arranged some other way. The Ministry withdrew its case on that basis. This position cannot determine the outcome of this trial.

I must base the outcome on the evidence that I have heard but, in the end, I do not disagree with the approach of the Ministry. [ 93 ] L.M.P. seeks access to J.S.G. every weekend from Friday after daycare, pre-school or school as the case may be until Sunday at 3:00 p.m. It would be entirely dysfunctional for the structure of J.S.G.’s family life with her father to grant such an order even absent the challenges J.S.G. still faces. [ 94 ] There is no evidence before me to find that K.P. is not acting in the best interests of J.S.G. I therefore decline to grant specified parenting time to L.M.P.

This is something that she must work with K.P. to gain. It is up to him as the guardian responsible for all aspects of J.S.G.`s life to make the decisions about parenting time or contact time she has with any member of her family and in what circumstances such time will occur. I find that it is responsible of him to ease into that contact time in accordance with recommendations of J.S.G.`s mental health counsellors.

However, he must remain mindful that L.M.P. is a guardian and has been an important contact in J.S.G.’s life. [ 95 ] Similarly, L.M.P. seeks access to J.A.G. every weekend from Friday after daycare, pre-school or school until Sunday at 3:00 p.m. This is entirely impractical with A.L. and T.L. living in Salmon Arm. That aside, I make the same comments as with respect to J.S.G. I find, on the balance of the evidence, that A.L. and T.L. are acting in J.A.G.`s best interests. They are responsibly engaging in parenting time for L.M.P. on terms that they have found to be in J.A.G.`s best interests.

I cannot, on the evidence, find that they are wrong in that regard or in any way acting against J.A.G.’s best interests. They are appropriately exercising their role as guardians impressed with this very responsibility. [ 96 ] While it is empowering and probably constructive for the children to be asked if they wish to see their grandmother, the guardians should also be working toward a more natural relationship which puts less emphasis on the previous traumas and more emphasis on the ongoing relationship.

In other words, while it is appropriate to ask the children if they wish to see their grandmother, it should be equally appropriate for any of the guardians to simply say that they are going to a specific event and that Nana is going to be there.

Such a circumstance will permit the guardians of these children to monitor L.M.P.`s behaviour and supervise her interaction with the children while allowing the children to continue their important relationship with their grandmother. [ 97 ] In the event that L.M.P. does come to a point where she is able to have unsupervised parenting time with the children, she must bear in mind that she does not have any of the guardianship responsibilities other than those specifically granted to her by the court order.

She must therefore bear in mind that she is compelled to conduct herself as she is directed by the other guardians of these children. It is no longer open to her to make decisions about how she will interact with the children, what activities she will engage in with the children or how they will be disciplined. [ 98 ] K.P. seeks an order that L.M.P. participate in counselling or other services or programs to facilitate the safe reintegration of J.S.G. with her grandmother pursuant to s. 224(1)(

b) of the Family Law Act . I am not going to make that order given the decision I have rendered regarding parenting time. L.M.P. should understand that if she does not engage in such counselling she may not have unsupervised parenting time for some time to come. ______________________________ S.D. Frame Provincial Court Judge