E.V. v. R.B., 2019 BCPC 205

Citation: E.V. v. R.B. 2019 BCPC 205 Date: 20190821 File Nos: 16037/15943 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.V. and M.V. APPLICANTS AND: R.B., R.T., J.V., and T.J. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Applicants: C. Caldwell Counsel for the Respondent: K. Hensel Place of Hearing: Kamloops , B.C. Dates of Hearing: March 4, 5, 6, 7, 11 and 12, 26, April 23, May 27 and May 29, 2019 Date of Judgment: August 21, 2019 [ 1 ] This is an application by two sets of grandparents, M.V. and E.V. on one part and R.B. and R.T. on the other part, for the guardianship, primary residence, and parental responsibilities of C.V., born [omitted for publication].

Submissions following trial were received March 26, April 3, May 28, May 29 and June 20, 2019. [ 2 ] While each set of grandparents commenced their guardianship applications in separate proceedings, on December 9, 2015 an order was made that the files be heard together. [ 3 ] C.V.’s, who are his guardians pursuant to s. 39 of the Family Law Act , are J.V. and T.J. They did not appear on this application but support their respective parents’ positions. Their relationship ended some time ago and C.V. has resided primarily with one set of grandparents or the other since 2014.

This in part has been due to the inability of his parents to care for him, the involvement of child services in Alberta arising from a suspicious injury to C.V.’s arm, and addiction issues both parents struggle with. [ 4 ] While this case has elements of relocation to it, this is primarily about an application by one set of grandparents and a cross application by the other set of grandparents for guardianship, primary residence, parental responsibilities, and parenting time.

Both sets of grandparents have filed their Form 34 affidavits complete with protection order registry searches, child protection searches and criminal record checks. [ 5 ] A person may apply under s. 51 of the Family Law Act for guardianship of the child. In doing so, that person must satisfy the court that it is in the best interests of the child to appoint them as a guardian. The best interests of the child are set out under s. 37: 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 ] Section 37(2)(

g) and (

h) require an assessment of family violence which is guided by s. 38: 38 For the purposes of section 37 (2) (

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

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

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

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

(

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

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

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

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

i) any other relevant matter. [ 7 ] There is no indication that either set of grandparents have inflicted violence upon C.V. but violence has played a role in his early life. The exposure he may have to it through his biological parents and their respective parents is still a consideration. [ 8 ] While cultural, linguistic, religious and spiritual upbringing and heritage are not specifically enumerated in the best interests of the children under s. 37, they are an important part of that assessment. That these factors continue to have importance is highlighted by the specific enumeration of them under s. 41(

e) governing parental responsibilities. C.V.’s HISTORY [ 9 ] C.V.’s paternal grandparents, E.V. and M.V., reside in Spruce Grove, Alberta. His maternal grandparents, R.B. and R.T., reside in Chase, British Columbia. [ 10 ] C.V. was born in Edmonton, Alberta, on [omitted for publication]. Until he was approximately two years old, he resided with his parents, J.V. and T.J. [ 11 ] In October 2014, T.J. asked her parents, R.B. and R.T., to take C.V. to live with them in British Columbia on a temporary basis. C.V. remained in their care until late 2015. In December 2014, R.B. and R.T. decided to keep C.V. with them.

While E.V. and M.V. made attempts to contact R.B. and R.T., they were unsuccessful in having C.V. returned to Alberta. [ 12 ] During his infancy, C.V. spent time in his paternal grandparents’ care from time to time. This included during the course of a child protection investigation, where C.V. suffered a broken arm under suspicious circumstances.

His father was the focus of that investigation. [ 13 ] While the maternal grandparents assumed the care of C.V. when he was 18 months of age with the support of his parents, R.B. testified that she told C.V.’s parents she would only return him to their care if they completed a drug treatment program to deal with their addictions and completed a parenting course.

It should be noted that to this date neither parent has completed a drug treatment program although J.V., who is serving a jail sentence, completed a short programme of drug treatment while in pre-trial custody. [ 14 ] In summer 2015, E.V. and her son J.V. came to British Columbia to bring C.V. home to Alberta. R.B. and R.T. refused to let them do so.

The maternal grandparents made an ex parte application for temporary guardianship of C.V. despite the involvement of the paternal grandparents in C.V.’s life, and with a knowledge that the paternal grandparents were coming to see C.V. [ 15 ] In early 2016, both sets of grandparents came to a mutual agreement for joint guardianship of C.V. on a one-month rotation. This rotation commenced in March 2016 and continued in effect until October 2017. In October 2017, C.V. was to return to the paternal grandparents in Alberta.

However, when the paternal grandparents contacted the maternal grandparents to confirm time and date of the exchange, the maternal grandparents said that C.V. would not be returning to Alberta. They had in fact enrolled him in Kindergarten in British Columbia. It was a unilateral decision that was not discussed with the parents or the paternal grandparents. [ 16 ] There was some confusion about the requirement of C.V. to attend Kindergarten. In Alberta, it is not mandatory.

Consequently, the paternal grandparents had assumed the one-month rotation would continue until a final order was in place with respect to C.V.’s guardianship and primary residence. [ 17 ] An interim motion was heard on November 1, 2017, the result of which was that C.V. was to return to Alberta for the bulk of December 2017. A further interim hearing was scheduled for February 28, 2018. At that subsequent hearing, the foremost concern was C.V.’s health.

The paternal grandparents were concerned about C.V.’s health during his time in British Columbia, most particularly with respect to his medical condition of hyperthyroidism. [ 18 ] The interim hearing resulted in an order that C.V. reside primarily in Alberta until the trial. The trial was initially scheduled to July 2018 but was unfortunately adjourned to March 4, 2019. That trial continued in a protracted and broken fashion until final submissions closed in June 2019. [ 19 ] While residing with his paternal grandparents following that interim order, C.V. was enrolled in Kindergarten and commenced Grade 1.

C.V.’s HERITAGE [ 20 ] C.V.’s heritage is varied and rich. His paternal grandfather, M.V., is of Dutch ancestry although he does not identify with his cultural origins. C.V.’s paternal grandmother, E.V., is [omitted for publication] and [omitted for publication]. She knows little of her cultural background having grown up in the care of her father who was Caucasian (his heritage was not otherwise identified) and who observed the Jehovah’s Witness faith. [ 21 ] The maternal grandparents are [omitted for publication], residing in the [omitted for publication] area of the [omitted for publication].

They are very engaged in all aspects of the traditions of [omitted for publication] people, including language, culture, ceremony and medicines. R.T. engages in traditional ceremonies and R.B. is a traditional healer. Though she practices traditional

medicines, she also respects and benefits from modern medicines. [ 22 ] C.V.’s maternal grandparents believe it is in C.V.’s best interest and is crucial for his wellbeing, including cultural wellbeing, that he have as much exposure as possible to the [omitted for publication] culture, language, territory and community. R.B. and R.T. believe they are in the best position to meet those needs. [ 23 ] They argued that the V. made no efforts to educate themselves about the [omitted for publication] culture, territory, land, spirituality or language.

The V. were unable to identify C.V.’s cultural group as [omitted for publication]. The only steps they took to inform themselves about C.V.’s Indigenous culture were cursory internet searches in the time leading up to trial. The maternal grandparents are concerned that, although the V. said they were open to learning more about the [omitted for publication] and [omitted for publication] cultures, they had not done so in any meaningful way to that point.

The maternal grandparents argued that the V. demonstrated a profound lack of insight into the significance of the [omitted for publication] cultural for C.V. and saw no value in fostering his identity as such a person. [ 24 ] While both counsel acknowledged that the considerations set out in

section 37 of the Family Law Act do not include cultural heritage, it is an important consideration. Ms. Caldwell referenced the Adoption Act , an adoption case, and some child protection cases. This is unnecessary. It has been established since the Supreme Court of Canada decision of Van de Perre v. Edwards , 2001 SCC 60 , that heritage is a factor to be considered.

That case distinguished the considerations in adoption from those where the competition is between biological parents (or in this case biological grandparents), the distinction being that the biological grandparents share the race and culture of the child. So while it is an important factor to consider who is in the best position to preserve and nurture C.V.’s cultural identity, that factor must be considered among the other factors as a whole.

In other words, it is not a determinative factor. [ 25 ] The maternal grandparents argue that C.V. will be exposed to both non-Indigenous and [omitted for publication] culture in their care. They submit that it is in C.V.’s best interests, his health, and emotional well-being, to have sustained and consistent access to [omitted for publication] culture. He will be able to maintain and enhance the relationships he has already developed with his [omitted for publication] family, peers, elders, and community.

This will assist him to develop a healthy and secure identity as a [omitted for publication] adult. [ 26 ] Heritage and culture are important elements of a number of the factors that are enumerated in

section 37, including emotional well-being, nature and strength of relationships with significant persons in a child’s life, and the child’s need for stability, among other considerations. [ 27 ] W.C. is Chief (Kukpi7) of the [omitted for publication] First Nation. He testified in that capacity and as an [omitted for publication] of C.V. His testimony described the importance of [omitted for publication] children learning the [omitted for publication] culture, language and territory in order for them to achieve wellbeing as adults.

He also addressed the negative effects of removing [omitted for publication] people from their territory and culture as children, resulting in difficulties in vulnerabilities as adolescents. [ 28 ] As part of this testimony, W.C. described [omitted for publication] family structures, childrearing practices, and the positive impact on [omitted for publication] children and their sense of belonging and wellbeing. Finally, W.C. described losses to the [omitted for publication] nation and community when the children are removed from that setting. [ 29 ] Ms.

Caldwell objected to any significant weight being given to the evidence of [omitted for publication] because his experiences relate to the very different circumstances of removal of children from their homes in child protection proceedings. Ms. Caldwell acknowledged that his evidence was important to the issue of [omitted for publication] culture and language as well as the interrelations between Indigenous nations. However, W.C.’s experiences were based on foster placement and the “Sixties Scoop”.

He acknowledged that C.V.’s experience is much different and that C.V. has two loving families. [ 30 ] W.C. conceded in cross-examination that it was possible to learn the [omitted for publication] language through a programme available on an app. However, this does not seem a practical reality. It is a language lost to much of its own people so it would be a considerable challenge for a child to learn this language in this manner. While his concession demonstrates an element of objectivity, I cannot conclude that this is a viable alternative. [ 31 ] I must also address Dr. Raven Sinclair’s report.

The report is a compelling and informative one, but much of it is not admissible. Counsel were to agree on redactions but were unable to do so by June of this year. By memorandum to counsel, I accepted the redacted version provided by Ms. Caldwell. [ 32 ] Dr. Sinclair is an academic expert on the subject of Indigenous child welfare and Indigenous transracial adoption and fostering. It is in that context that she has provided a report in this proceeding. Therein lies the first issue with respect to Dr. Sinclair’s report. C.V. is interracial. He shares a varied culture on both sides of his family.

C.V. is not going to be removed from his Indigenous heritage or, indeed, any part of his heritage. He has not been put into foster placement or adopted out of his culture. [ 33 ] Dr. Sinclair also premised her report on a case narrative and

summary of expert evidence provided to her as well as a Views of the Child Report (which I will deal with more fully), but did not meet with the child or any of his family members. [ 34 ] In addition, Dr. Sinclair made references to the Jehovah’s Witness faith without any expertise or knowledge to support her findings or observations. [ 35 ] The report also purports to exercise the sole function of the judge in determining the ultimate issue, which is which placement is in C.V.’s best interests. It overreaches the bounds of an expert opinion by a considerable margin. Further, Dr.

Sinclair engaged in an argument both on facts and law, and provided opinions about the foundation and substance of decided cases. She conflated the issues of harms caused to Indigenous children removed by the state into adoption or foster placement with non-Indigenous families, with the issues faced by biological relations in a family law proceeding. [ 36 ] Finally, Dr. Sinclair wrote opinion and argument about the facts of this particular case which is well beyond the scope of her

role as an expert. That being said, there are components of this report which are admissible and are useful to my determination. For instance, she addressed the impact of removing children from access to their cultural heritage and language as follows: To deprive children of access to their cultural language and cultural heritage amounts to an alteration of their fundamental identity and damages their lifelong connections to kin, community, culture, and spirituality ( Thistle 2017).

For children who have been through the foster care system, the intense frustration and psychological damage of knowing their family could have raised them except for an imposed legal decision, exacerbates the losses exponentially. (Page 6) [ 37 ] Again, this is not a case of a child losing his fundamental identity by being removed from his language, culture or family. He will maintain all of those.

However, her comments are proper consideration in the circumstances of an Indigenous child who will reside between two cultural settings. [ 38 ] A benefit of being raised within the culture and tradition is contrasted as follows: In contrast to the cultural loss, Indigenous children raised with their Indigenous families and with their grandparents especially are advantaged to learn the higher forms of Indigenous language and cultural teaching that lead to deep social, cultural and spiritual understanding. (Page 7) [ 39 ] This relates to the consideration of whether the V. could preserve and maintain C.V.’s [omitted for publication] identity which Dr.

Sinclair summarizes by these queries: The accepted definition of culture pertains to the total range of activities and ideas of a group of people with shared traditions which are transmitted and reinforced by members of the group. In Euro-Canadian society, however, Indigenous culture is only understood in relation to external identifiers as culture that include trappings such as powwows, regalia, symbols and cultural artifacts (teepees, bows and arrows, horses). To consider these trappings as adequate substitutes for biological family and cultural integration is insulting.

The intrinsic aspects of Indigenous culture are esoteric and beyond the purview of most Canadians, which then gives rise to the questions of whether an “outsider” to a culture can accurately assess its significance and importance to a child’s wellbeing and life path? Can the critical epistemological and cosmological foundations of Indigenous lifeways be given the necessary consideration, particularly in the legal system, by individuals who are ignorant of them? [ 40 ] In answer to that question, Dr. Sinclair said this: Indigenous Cosmology – who can impart that to children?

Indigenous epistemology (science of knowledge, is defined by Ermine (1999) as a worldview that is a holistic, metaphysical construct that embraces both inner and outer worlds bound by the laws of nature, energy and light, that is motivated by conduct towards the benefit of all life (p. 103). In contrast, European worldview is atomistic, reductionist, individualistic, and has as a primary motivation the control and conquest of the natural world (p. 102).

Simplistically and briefly defined as they are, this worldview comparison provides a foundation for understanding that divergent ontological and epistemological constructs will result in very different real world manifestations in terms of social, political, economic, ceremonial, and especially familial systems. Historically, in the Indigenous social context, a holistic and communitarian worldview translates in familial and community relationships that were, and still are, much different than Euro Canadian constructs.

Put simply, Euro Canadian family accepts a “nuclear family” definition where only immediate family members are legally and philosophically significant. Indigenous family constructs are much wider in scope and include extended family and multiple generations of family. Much of this information is best understood through language. The specificity and detailed conceptualization of Indigenous kinships relationships are articulated in Indigenous languages and there are different words for every person who is in relation to another.

For example, there are different [omitted for publication] words for “older brother”, “younger brother”, “older sister”, “younger sister”, “mother’s sister”, and “father’s sister”, as well as distinct terms for two and three generations removed. Grandparents/grandchildren, great grandparents/great grandchildren). Like many Indigenous cultures around the world, [omitted for publication] do not use a framework based on the distance of blood relation; eg. “removed” indicates the generational distance between people.

For example, a 2 nd cousin, would be the child of a 1 st cousin, and 1 st cousins are the children of one’s parents’ siblings. Among the [omitted for publication], children within the family grouping of extended relatives are all siblings and all the children in the nation are cousins. Indeed, all the children of the nation are children of every adult and the Kuk7pi is the metaphorical “father” of all band members. Distinctions for aunts, uncles, and grandparents are framed generationally; that is, all nation members of ones’ grandparents’ generation are also considered grandparents.

Similarly, no distinction is made for 2 nd , 3 rd , 4 th , or 10 th cousins removed. These are viewed as western imposed constructs. One of the most important roles in [omitted for publication] culture is that of the Kia7ah (grandmother). She is the matriarch of the family and the community, the purveyor of traditional knowledge, the keeper of medicines and ceremonies, and the nurturer and decision-maker regarding the lives of children. The implications of this knowledge are that that concept of “extended” family as defined and understood in the western context, does not apply in Indigenous contexts.

In particular, Indigenous nations in Canada do not subscribe to the ageist western perspective of the appropriateness or inappropriateness of children being raised by grandparents, nor do Indigenous ways give rise to a perception of degrees of emotional and psychological distance between one’s immediate family and one’s extended family and, by definition, community. [ 41 ] As I have said, Dr. Sinclair’s report must be viewed with some caution. Apart from the faults that I have identified, Ms. Caldwell rightly argued that Dr.

Sinclair has not personally done research on Indigenous children being raised by their own families off reserve. Her focus has been on children removed from their families and placed with foster families or adopted into non-Indigenous homes. Dr. Sinclair also conceded that there is not a lot of research on these specific points applicable to C.V. I would add that Dr. Sinclair’s report does not identify or address the specific nature of C.V.’s family and community, whether it is the British Columbia one, the Alberta one or the combination of them he has enjoyed most of his life. [ 42 ] Ms.

Caldwell argued that the paternal grandparents have expressed the willingness to learn about C.V.’s Indigenous Aboriginal

heritage and to participate in any way that they can to promote his culture. Additionally, C.V. will not be removed from this Indigenous heritage and would, in fact, have approximately three-to-four months per year with his maternal grandparents if C.V. were to live with his paternal grandparents. [ 43 ] The maternal grandparents are rightly sceptical that the paternal grandparents will make any serious effort to embrace or learn C.V.’s [omitted for publication] heritage.

However, E.V. testified that the trial experience had been such a revelation to her that she has begun her own research into her own ancestral background. [ 44 ] There is also the matter of C.V’s faith. His maternal grandparents are spiritual and are very much connected with the land. They believe in the Creator or Tqeltkukwpi7. His paternal grandfather observes his faith in his own way and does not identify with any specific house of worship. His maternal grandmother follows the Jehovah’s Witness faith. However, E.V. encourages the members of her family to make their own personal choices about their beliefs.

Her sons no longer follow the faith as a result of that choice. [ 45 ] E.V. testified that C.V. goes to meetings with her. He enjoys the activities there including drawing, singing and socializing. He is not forced to attend and is allowed to choose to go if he wishes. Members of her congregation confirm he seems happy to be there. [ 46 ] This brings me to the troubling comments not only in Dr. Sinclair’s report but in the Views of the Child Report prepared by Carrie McNeely. There are entirely unfounded assumptions made about the Jehovah’s Witness faith that do no bear fruit in the evidence. Dr.

Sinclair relied upon the Views of the Child Report with respect to her comments about the Jehovah’s Witness faith. That Views of the Child Report was rightly challenged by Ms. Caldwell. As she noted in her submissions, the purpose of the report is to allow a child to speak frankly to a qualified neutral third party. Leaving aside for the time being the concerns Ms. Caldwell expressed about the manner in which the Views of the Child Report was prepared, Ms. McNeely allowed her lack of understanding or knowledge of the Jehovah’s Witness faith and her bias toward it to interfere with her objective role. [ 47 ] Ms.

McNeely not only referred to terms associated with the faith improperly, such as referring to their place of worship as church rather than meetings, she displayed little understanding or knowledge of the Jehovah’s Witness faith. However, despite this lack of knowledge or understanding, she expressed very strong views about the harm in it. Ms. McNeely specifically referenced inaccurately two identifiable clashes of culture which are not supported in the evidence. This was with respect to dancing and with respect to hunting. These foundations were successfully challenged on cross-examination.

C.V’s MEDICAL CONDITIONS Hypothyroidism [ 48 ] The other significant factor the parties focussed on at this hearing was C.V.’s various medical challenges, not the least of which is his hypothyroidism. Specifically, C.V. suffers from congenital hypothyroidism. In this condition, Thyroxine (which is Free T4) is not produced by the body. This leads to abnormally high levels of TSH which can, if untreated, lead to delays in growth and development, and possibly death. A person who suffers from congenital hypothyroidism has TSH levels monitored regularly.

The normal range for C.V.’s TSH is between 0.3 and 5.0, with a normal range of T4 between 8 and 20. [ 49 ] C.V. takes Synthroid to control his condition. The amount of Synthroid he takes is determined by his size, growth, weight and height. Dr. Galante has been treating C.V. since he was approximately one year old for this condition. He ultimately referred C.V. to endocrinologist Dr. Rolonowsky in 2018, where she provided advice with respect to the course of his treatment and his prescription. [ 50 ] Dr.

Galante was qualified to give expert evidence in the fields of pediatric care, ongoing care for hypothyroidism, and for Attention Deficit Hyperactive Disorder. With respect to the congenital hypothyroidism, Dr. Galante said that consistency and proper administration are key to having the TSH levels remain in the appropriate range. He testified that it was imperative the medication be taken in the morning on an empty stomach. Certain foods and minerals or supplements should not be taken at the same time as Synthroid because of the impact on Synthroid absorption.

A half-hour window has to be afforded. [ 51 ] While C.V. was in British Columbia with his maternal grandparents, his TSH levels would become elevated but would return to normal once he was back in the care of his paternal grandparents. This was consistently monitored by the paternal grandparents who had his bloodwork taken at the commencement and conclusion of his visits with them. The results caused them to believe with some considerable concern that there was poor compliance with C.V.’s medication in British Columbia. [ 52 ] At their behest, Dr. Galante communicated with C.V.’s doctor in British Columbia, Dr.

Van Leeve. However he received no response. [ 53 ] Dr. Van Leeve testified that she was C.V.’s primary paediatrician in British Columbia and began seeing him when he was approximately two years old as a result of a referral from the family doctor. She was qualified as an expert to give an opinion on pediatric care and symptoms, treatment and complications arising from hypothyroidism. [ 54 ] While Dr. Galante suggested that there should be a 30-minute window for optimal absorption of the Synthroid, it was Dr. Van Leeve’s opinion that this should be 60 minutes.

However, she had not implemented that in her practice, although she would be doing so going forward. It should also be noted that the reference range for labs in British Columbia is slightly different than Alberta, with the normal TSH range being 0.35 to 5.50 and the Free T4 being 8.0 to 16.2. [ 55 ] Dr. Van Leeve created a graph of C.V.’s TSH levels using her lab reports between the beginning of 2015 and January 2018 which showed that while C.V. was in British Columbia there was considerable fluctuation in his TSH levels.

There was also a long period of time where he was not being tested or monitored between September 2016 and December 2017. [ 56 ] Because the maternal grandparents believe that the minerals in their well water were impacting the TSH and T4 levels for C.V. while he was in their care, Dr. Galante was asked to provide an opinion on this subject. Dr. Galante’s opinion was that calcium or iron would only interfere if they were taken during the window of absorption and in therapeutic doses or as dietary supplements.

[ 57 ] The maternal grandparents have produced water tests from the [omitted for publication] Indian Band which showed elevated iron levels in the water. It is acknowledged that if iron is taken at the same time as Synthroid, it can raise the TSH levels. However, there is inadequate evidence before the court to show that the levels of iron or calcium in the water at the maternal grandparents’ home could have or did affect C.V.’s TSH levels. The maternal grandparents are committed to bringing in bottled water for C.V.’s use.

This should resolve any issues of minerals in the water that may be interfering with Synthroid. [ 58 ] All of the grandparents testified that C.V. takes his Synthroid without anything to eat or drink. Consequently, the fluctuation in C.V.’s TSH levels while in British Columbia can only be explained by noncompliance or by the contents of the water he is drinking throughout the day. I have no proper expert evidence of the latter. [ 59 ] On at least one occasion, R.T. admitted to Dr. Van Leeve that he had been out of medication for a few days.

R.T. explained that he told her this because he was concerned he would not be able to get the prescription renewed unless he told her they were out of it. This evidence lacked the ring of truth. It should be clear to anyone continuously refilling prescriptions that a life-sustaining drug will have a set number of refills and that the refills will need to be replaced on a consistent basis. On another occasion, M.V. told R.T. that C.V. only had one pill left. R.T. advised M.V. that he was going hunting so C.V. would not be getting his medication for a few days.

The V. had not filled the prescription themselves because the maternal grandparents were in charge of filling the prescriptions during that time. R.T. said that this was a joke but, if it was, it was misguided. [ 60 ] Dr. Van Leeve, on more than one occasion, expressed concerns to the maternal grandparents about medication compliance. The paternal grandparents, on the other hand, were consistent with the medication, monitoring the TSH levels and maintaining contact with Dr.

Galante. [ 61 ] The preponderance of evidence supports the V. concern that R.B. and R.T. are not adhering strictly to C.V.’s medical requirements. This is deeply concerning. The maternal grandparents must be able to demonstrate to C.V.’s medical providers and his paternal grandparents that they are complying with C.V.’s prescription regimes. This is the case whether C.V. is residing his maternal grandparents or his paternal grandparents. Attention Deficit Hyperactivity Disorder [ 62 ] Dr. Galante has recently diagnosed C.V. with Attention Deficit Hyperactivity Disorder (“ADHD”).

ADHD is not foreign to either set of grandparents. Both of them have children who struggled with this disorder throughout school. [ 63 ] The V. gave evidence that once C.V. began Kindergarten, his teacher began to raise her concerns. The issues that concerned the teacher were not new to either set of grandparents but neither set had felt the behaviours needed addressing before C.V. was in school. [ 64 ] Dr. Galante did not feel treatment was appropriate at the time and felt further testing was required. This was eventually done by having questionnaires completed by the teachers and the grandparents.

The responses placed C.V. on the spectrum at moderate to severe. [ 65 ] As a result of this testing, Dr. Galante prescribed a trial of Biphentin to assess the impact on C.V.’s attention span, concentration, interactions with classmates and his ability to learn. [ 66 ] The initial dose was increased after about three weeks and continues at that dose to date. This is another medication C.V. must take in the morning. [ 67 ] As a result of the treatment, the V. have noticed positive changes in C.V.’s behaviours during school hours.

This is objectively supported by the improvement in his school work. [ 68 ] R.B. and R.T. are concerned about C.V. taking this medication. Their concern was supported by Ms. McNeely who prepared the Views of the Child Report. Ms. McNeely is not a physician and has no qualifications to provide this opinion. She conducted some research of her own to determine this medication increases the risk of an individual becoming addicted to stimulants in the future, including such stimulants as cocaine. Dr. Galante has the opposite opinion. Dr.

Galante is not a psychologist nor a psychiatrist but he does treat a number of patients with ADHD. However, it would have been prudent to refer C.V. to an expert in this field at least for the initial confirmation of the diagnosis and a plan of treatment. [ 69 ] In any event, Dr. Galante researched studies of groups of adolescents with ADHD, comparing groups that had treatment to those that did not. The treatment group was two to three times less likely to suffer from addictions issues later in life. This is important for C.V. because his father suffers from ADHD which was not treated.

His father did suffer from addictions later in his life and continues to suffer the consequences of those addictions. C.V.’s mother has significant learning disabilities and behaviour issues, which also went untreated. She too suffers from addictions. [ 70 ] As Ms. Caldwell submitted, the paternal grandparents did not take the decision lightly to put C.V. on further medication. However, after weighing the positives and negatives of treatment, the positives outweighed the negatives. [ 71 ] R.B. and R.T. have been reluctant to follow Dr. Galante’s instructions or to give C.V. his medication for ADHD.

They prefer alternative methods such as yoga and other options. [ 72 ] It is advisable for C.V. to receive psychologist’s opinion to confirm that he does in fact have ADHD and that the course of treatment is the best for him. It is also a positive approach to also introduce C.V. to additional methods (like yoga) to assist him in treating this condition. This treatment plan should not be cobbled together by counsellors, parents or the court but by a psychologist who is qualified to make the diagnosis and prepare a plan that takes into consideration the best options to meet C.V.’s needs. [ 73 ] As Ms.

Caldwell pointed out, both families have children who suffered from ADHD which went untreated. This resulted in unfavourable outcomes for all of them. Rather than taking a positive approach to investigate why their children were suffering in the way they did, they waited until others brought it to their attention or until the consequences were met in adulthood. This is something to be

considered when assessing the ability of the guardians to fulfil their guardianship roles. Both sides suffer under the same shortcoming. [ 74 ] R.B. and R.T. believe that C.V. suffers from trauma rather than ADHD. This is the basis for their preference that C.V. be assessed professionally by an expert in trauma. Dr. Galante is of the view that trauma and ADHD often appear together. It would be preferable if somebody with the qualifications to do so assessed C.V. for trauma and ADHD so that he can be properly assessed for therapy and treatment. In all likelihood, given Dr.

Galante’s experience with children with ADHD, the course of treatment he has prescribed will be the preferable one. However, if the maternal and paternal grandparents are to be guardians they must learn to cooperate with each other and collaborate on what is best for C.V.’s future. If this means insisting that C.V. be referred to an expert in trauma and ADHD, then they must do so. [ 75 ] In the meantime, the V. have now expressed a willingness to consider therapeutic or holistic approaches as well as the treatment plan prescribed by Dr. Galante.

The maternal grandparents have similarly said they will comply with the prescription requirements but will also pursue supportive therapeutic treatment. VIEWS OF THE CHILD [ 76 ] A Views of the Child Report was prepared by Carrie McNeely. The report was prepared in circumstances that were not particularly desirable to Ms. McNeely but, given the urgent timing, she acquiesced. The V. now ask that little to no weight be placed on the Views of the Child Report. They cite C.V.’s age, the rushed manner of the report and the deviation from Ms. McNeely’s usual procedure.

Finally, they cite the bias or apprehension of bias in favour of the maternal grandparents, and say the the report is unreliable. [ 77 ] R.B. and R.T., on the other hand, support the findings in the Views of the Child Report. [ 78 ] To start with, in British Columbia the views of the child must be obtained unless it is inappropriate to consider them. It is unhelpful to cite cases from Ontario either in the child protection context or with respect to the Ontario legislation to determine the appropriate age at which a child may express his or her views.

It is well established in this jurisdiction that if the child can express a clear view, it must be taken into account. Of course, the age and maturity of the child as well as the circumstances in which the views were expressed are to be taken into consideration. Greater weight will obviously be placed on an older child who also presents as mature and thoughtful. However, this does not dismiss the views of a younger child, which can often be insightful in their innocence and simplicity. [ 79 ] This brings me to my concerns with respect to Ms. McNeely’s report. Some of those concerns are also shared by Ms. McNeely.

For instance, the procedure she followed to prepare the report was not desirable in either her view or mine. There is also the matter of Ms. McNeely’s biased approach toward C.V.’s Indigenous heritage and against Ms. V.’ faith. Ms. McNeely also asserted facts about Biphentin and ADHD which exceeded the scope of her expertise and which were without foundation. [ 80 ] Initially, Ms. McNeely was to interview C.V. on Skype or FaceTime with a third party supervising him.

It was not the most desirable way to proceed with her interview but it met the challenges of not only C.V.’s geographical location but also the timing. The timing was entirely a product of counsel who both practice outside of this jurisdiction not familiarizing themselves with the requirements of this jurisdiction. It was no fault of Ms. McNeely or the families. [ 81 ] What was anticipated was that Ms. McNeely would then interview both sets of the grandparents by telephone. Her usual practice is to do this in person as well.

However, she wished to maintain the same process for both sides, which is certainly fair in the circumstances. However, R.B. and R.T. were concerned about C.V. appearing via Skype because they did not know who the supervisors would be or whether that supervisor would have influence on him. Instead, the plan was changed to provide that the V. would leave Edmonton earlier than they planned in March 2019 and bring C.V. to Ms. McNeely’s office once they arrived in Kamloops. [ 82 ] The V. were concerned about this arrangement and expressed that concern to Ms. McNeely.

They anticipated C.V. would be excited to see R.B. and knew that he would be tired after eight hours of travel. They suggested Ms. McNeely do one interview by FaceTime and one in person to offset these concerns. [ 83 ] Ms. McNeely’s usual practice is to do two interviews with a child, yet she denied the request. It is unclear why she denied the request but it certainly would have been a preferable procedure. This left the V. feeling that Ms. McNeely was biased in favour of R.B. and R.T. From their perspective, Ms.

McNeely acquiesced to the request of the maternal grandparents, but would not acquiesce to the request of the grandparents. [ 84 ] The V. are also concerned about the language Ms. McNeely used when interviewing C.V. about the Indigenous aspects of his life in contrast to the Jehovah’s Witness aspects of his life. The V. argued Ms. McNeely made several attempts to see if C.V. would understand aspects of his Indigenous heritage using such words as “Native”, “Aboriginal”, and “Indian”.

However, when referring to the Jehovah’s Witness faith, she used incorrect terms such as “church” as opposed to “hall” or “meetings”. She did not familiarize herself with Jehovah’s Witness practices or terminology to counterbalance her familiarity with the Indigenous culture of R.B. and R.T. While the V. did not expect that Ms. McNeely would have a strong foundation in the Jehovah’s Witness faith, they object to her strong views when comparing C.V.’s Indigenous heritage to the Jehovah’s Witness culture and faith. [ 85 ] As Ms. Caldwell argued, C.V. is Indigenous but he is also a multi-ethnic child.

The V. argued that Ms. McNeely gave C.V. the impression that he had to be Indigneous or not. They cite a question she posed to C.V.: “would it be easier to not be an Indian at all or to be all Indian”. As Ms. Caldwell argued, neither party is suggesting that C.V. must choose only between being Indigenous or following the faiths and cultures of his paternal grandparents. [ 86 ] With respect to the treatment of C.V.’s ADHD, Ms. McNeely exceeded her expertise by providing an opinion regarding the diagnosis and treatment plan for C.V.

She opined that Biphentin is a stimulant affecting the brain in the same way that cocaine does; that it causes undesirable changes to the brain over time; and that continuing to use Biphentin to manage C.V.’s behaviours would increase the odds exponentially of him becoming addicted to stimulants in the future. She recommended using yoga and other psychotherapeutic and traditional methods to heal the part of his brain where trauma resides. Ms. McNeely was very successfully challenged by counsel for the V. on cross-examination on all of these foundations.

She also re-siled from the recommendation that yoga, psychotherapeutic, and

traditional methods be used, claiming that she meant these to be used in conjunction with the medication. [ 87 ] Ultimately, Ms. McNeely redacted this from her report and, instead, discussed alternative methods. In that alteration, she alleged that the paternal grandparents were sceptical and averse to engaging in alternative methods of treatment for trauma. Under cross- examination, Ms. McNeely said that she was recommending the grandparents use these methods in conjunction with medication.

This is not evident in the report and I reject her evidence in that regard. [ 88 ] While I find that the V. have not been, prior to trial, particularly interested in or supportive of alternative traditional or psychotherapeutic methods even in conjunction with C.V.’s treatment, their position of scepticism is not unfounded. As Ms. Caldwell argued, C.V.’s health regime was recommended by the same physician who had been treating him since infancy. The recommendations of Ms. McNeely were coming without expert foundation after a very brief meeting with this child on one occasion. [ 89 ] On the other hand, Ms.

Hensel argued that Ms. McNeely took considerable care to ask developmentally appropriate questions to obtain C.V.’s views and preferences. As a result, Ms. Hensel argued that C.V.’s views were clearly and repeatedly expressed. She argued that C.V. struggled throughout the year in the interim custody of his grandparents as a result of the separation from R.B. and R.T. She cited his behavioural changes in school and the deterioration of his relationships with his peers. For the first time, he displayed aggression towards other children.

It is his attachment to R.B. that remained unwavering and was revealed in the Views of the Child Report. [ 90 ] What Ms. Hensel’s argument does not address is the diagnosis of attention deficit hyperactivity disorder. These aggressive behaviours and changes in school including the deterioration of his relationship with his peers may be entirely unrelated to which set of grandparents he is residing with and may be entirely related to his ADHD.

This is supported in the evidence that he has shown progress since he began taking medication for ADHD. [ 91 ] Both counsel rightly acknowledged that C.V. has a loving relationship with both sets of grandparents. There is no evidence anyone attempted to influence C.V.’s responses or preferences. [ 92 ] Ms. Hensel argued that Ms. McNeely’s report raises significant concerns about the capacity and willingness of the V. to assist C.V. to grow, honour and nourish all of his identities including his Indigenous one.

She argued that the V.’s strong views and beliefs about C.V.’s experiences with the maternal grandparents are not rational or accurate. This is supported in their expressed scepticism about the credentials of [omitted for publication], which is fully countered in the evidence of R.B., R.T. and W.C. [ 93 ] Indeed, the evidence is that [omitted for publication] is a private school registered with the Province of British Columbia that follows the provincial curriculum but also offers immersion in the [omitted for publication] language, traditions and cultural knowledge. [ 94 ] Ms. Hensel defends Ms.

McNeely’s opinions and qualifications on the treatment of ADHD as an indication of Ms. McNeely’s commitment to objectivity and rigor. However, this is a Views of the Child Report. It was to reflect the child’s views. Ms. McNeely was not asked to do a full-capacity report and did not do the appropriate background checks that would have supported such a full-capacity report.

In making the assertions that she made not only about the Jehovah’s Witness faith, but about the Biphentin and ADHD treatment, she greatly exceeded the bounds of her report, ventured into an area of expertise she does not have despite treating children who do have ADHD, and provided an opinion that was not sought. To have prepared a full-capacity report, Ms. McNeely would have and should have done significantly more than she did in the preparation of this report. [ 95 ] However, Ms.

McNeely’s report does also contain some very valuable insights from C.V., which both sets of grandparents must take into consideration going forward, regardless of the outcome of this proceeding. [ 96 ] Both sets of grandparents keep C.V. busy with camping, swimming, skating, dancing, singing, drumming, sweats, gathering medicines and other busy activities. He clearly enjoys these aspects of his life. He did express a preference for dancing over worshipping. However, this is much like comparing apples to oranges. They are entirely distinct activities which are neither exclusive nor inclusive of one another.

It was an unfair comparison. [ 97 ] Much of C.V.’s preference to be with his maternal grandparents was tied to being able to see his mother. While he objects to the amount that his mother and R.B. argue, he is happy to see his mother. He misses her. In reference to his father, he acknowledged that he does speak to him but does not appear to have the same attachment. [ 98 ] C.V. appears to be a very happy child and enjoys his time with both sets of his grandparents. At the time of the interview, C.V. was on his way to see his maternal grandparents and was understandably missing them more.

While he did say that he would prefer to live with his maternal grandparents, he also acknowledged that he would miss his paternal grandparents. [ 99 ] While C.V. was unable to identify the name of his Indigenous language, he said that he liked it and English both best. [ 100 ] C.V. has formed the belief that he is half-Indian but not Indian. This appears to be somewhat troubling to him. This likely has its foundations in M.V. telling C.V. that he is only half-Indian. It was not a malicious comment but was one to bring home to C.V. that he is multi-ethnic. C.V. told Ms.

McNeely it was hard to be half-Indian but could not identify why that was so. [ 101 ] The evidence of the maternal grandparents and C.V.’s disclosures in the Views of the Child Report show that C.V. values and wants to be part of the [omitted for publication] culture. He enjoys many of the activities except possibly hunting. In Alberta, he has had no access to his [omitted for publication] language, culture or community. The proposed plan of the paternal grandparents to promote that culture is as yet unformed and impractical.

C.V.’s EMOTIONAL WELLBEING [ 102 ] Emotional wellbeing is a broad category which, in this case, includes C.V.’s concerns about his self-identity and his education.

[ 103 ] Before attending school in Alberta, C.V. had attended Head Start and nursery school in British Columbia. R.B. also took him for speech therapy. [ 104 ] C.V. has been registered in Kindergarten in Alberta. If he were to be placed with his grandparents in British Columbia, he would attend [omitted for publication] on the [omitted for publication] Reserve.

The V. have made no inquiries into the quality or nature of this school but expressed a deep concern that C.V. would not receive a proper education. [ 105 ] The V. have expressed concern that there is little information provided to the court about the school. They are concerned that the school is run and taught by parents, aunts and uncles within the community with [omitted for publication] being the significant focus of the first number of years. M.V. has only gone so far as to review the website. From that review he understands that no English is spoken to the children until Grade 4.

While the V. have expressed concerns the school is not registered with the province, and do not know what curriculum is followed, they have taken no steps to ascertain these facts for themselves. [ 106 ] By the same token, the maternal grandparents have also not investigated his school in Alberta, but they are not taking issue with the quality of the education he could obtain there. For the most part, their concern is that the structure is distressing him resulting in behaviour challenges. [ 107 ] In Alberta, C.V. has been attending [omitted for publication] in Spruce Grove, Alberta.

He is doing well in school with trouble in certain areas. The ADHD treatment has seen an improvement in his schoolwork. The V. are concerned that moving C.V. to [omitted for publication] would be an extreme setback. There are certain deficiencies in C.V.’s education they say support this. For instance, when he returned from his time in British Columbia in March 2018, he did not know the alphabet in English. [ 108 ] There is no evidence before the court that C.V. would not obtain a quality education whether he continues at [omitted for publication] or whether he transfers to [omitted for publication].

It is the responsibility of both sets of grandparents to ensure that C.V. is able to continue his education successfully. If this requires the grandparents to ensure that he is also achieving adequate levels in English, then that is an effort they must make. FAMILY VIOLENCE [ 109 ] There is no dispute that C.V. was exposed to violence while in the care of his biological parents. There was cryptic reference to the spiral fracture to C.V.’s arm, the involvement of Child and Family Services and the placement of C.V. from time to time with his paternal grandparents.

Ultimately, R.B. and R.T. were concerned about what they saw when they visited their grandson and removed him to British Columbia. [ 110 ] The biological parents are presently both separated to some extent from C.V. T.J. does not live with R.B. and R.T. She visits C.V. in their home. He is not left in her care. In the Views of the Child Report, C.V. revealed that there is a fairly constant level of conflict between R.B. and T.J. [ 111 ] Evidently, T.J. is facing charges in Alberta for which she has not returned and has not otherwise dealt with.

It is unclear whether there are warrants out for her arrest or whether these are simply matters that she has not moved along at an agreeable pace. In any event, her outcomes are uncertain as is her current management of her drug issues. [ 112 ] As I said, T.J. sees her son occasionally at the home of R.B. and R.T. However, R.B. has set in place certain steps that T.J. must take before she will permit T.J. to be more involved in C.V.’s upbringing. [ 113 ] T.J. does not appear to have embarked on that remedial path.

It demonstrates R.B.’s insistence on placing C.V.’s safety and interests first. [ 114 ] There is troubling evidence about arguments between R.B. and T.J. C.V. raised the topic of these disagreements throughout the interview Ms. McNeely had with him. For a child who comes from a traumatic background, this sort of interaction should be kept away from him. [ 115 ] J.V. is presently in jail.

When he is released from custody, the V. expect that he will live with them, but his time with C.V. will be under constant supervision for the initial period. [ 116 ] The V. conceded there were disagreements between themselves with respect to their son J.V., all of which transpired prior to C.V. living with them. Since their son has gone into custody they no longer have their disagreements.

They are of a common ground that if J.V. were to cause any issues once he is released, he would not be permitted to continue to live in their home. [ 117 ] M.V. also concedes he has a loud voice which, at first, seemed to startle C.V. However, C.V. has not indicated in any way that this is distressing to him. The V. submit that their home is much quieter which, for a child with trauma and ADHD, is a more conducive environment. [ 118 ] Neither counsel put a great deal of emphasis on the domestic violence aspect of this application.

Both sets of grandparents are now well aware the impact the conflict in their respective homes has on C.V. It is incumbent upon them to shield this child from that conflict given his history of trauma and his current challenges. STATUS QUO [ 119 ] Citing Poole v. Poole , 1999 BCCA 203 , Ms. Caldwell argued that the status quo ought to be maintained. Maintaining the status quo, however, is often inconsistent with the sole consideration of the best interests of the child.

The current circumstances and the historical circumstances of the child are a key component to assessing the best interests of the child, but the status quo does not have any special priority.

ABILITY OF THE GUARDIANS TO EXERCISE RESPONSIBILITIES [ 120 ] Both sets of grandparents have shown a commitment to C.V. that does not extend well to communication between all of the guardians. C.V. will be well loved and cared for regardless of the home in which he is placed but the grandparents must work considerably on their communication and cooperation skills between each other. The maternal grandparents have repeatedly refused to return C.V. without proper communication with the paternal grandparents when it is their time to have him. They make unilateral decisions and do not resile from them.

This is unhealthy for C.V. [ 121 ] Both sets of grandparents have failed to inform themselves in any meaningful way about the heritage and culture of the other family. The maternal grandparents have failed to educate themselves properly about C.V.’s Jehovah’s Witness faith. The paternal grandparents have similarly failed to inform themselves about C.V.’s [omitted for publication] culture, traditions and faith. These are all components that are an important part of C.V.’s identity. It is the responsibility of the guardians to fully inform themselves of these aspects of C.V.’s life.

Rather than making false assumptions, these grandparents should be sharing their knowledge and respective cultures. [ 122 ] With respect to his medication, both sets of grandparents are fairly entrenched in their views about certain aspects of C.V.’s care. Both sets of grandparents assert that they comply with C.V.’s prescription requirements for his Synthroid. However, the paternal grandparents are suspicious that the maternal grandparents are not adhering.

Their suspicion is founded in the objective evidence of the blood tests taken in Alberta at the commencement and conclusion of his time there. [ 123 ] The paternal grandparents are similarly concerned that the maternal grandparents will not adhere to C.V.’s Biphentin prescription. It is certain that the maternal grandparents have strong views about whether C.V. has ADHD or what the roots of his behavioural issues may be. They are likely correct that much of his difficulties are rooted in the early childhood trauma and that this should properly be investigated through counselling.

However, the paternal grandparents stubbornly adhere to the diagnosis and treatment plan of Dr. Galante. Dr. Galante’s plan may well be the appropriate one, but C.V. should be properly and holistically assessed for whether he also requires trauma counselling and whether his ADHD diagnosis is properly sustainable. These are matters which guardians must be able to communicate cooperatively about. They have not done so to date. CONCLUSION [ 124 ] I am satisfied that C.V. would be well loved and well cared for regardless of the home in which he is placed.

His health and emotional wellbeing have been the foremost concerns for both sets of grandparents. While the blood test results are extremely concerning when C.V. is in the care of his grandparents, I am satisfied that they believe they were adhering as best as possible as communicated to them by Dr. Van Leeve. Dr. Van Leeve does not share that same confidence.

However, I am satisfied that these proceedings have brought home to the maternal grandparents how important it is for them to ensure compliance regardless of their personal beliefs about C.V.’s diagnoses. [ 125 ] I am equally satisfied that C.V. will achieve a quality education regardless of whether he is registered at [omitted for publication] in Spruce Grove or at [omitted for publication] in [omitted for publication].

I am satisfied that the struggles and discontent he has expressed at [omitted for publication] School may well be related to his ADHD which is now being managed by Biphentin. [ 126 ] In all other respects except culture, C.V. lives a rich and fulsome life in both homes. The conflict he is exposed to in both homes can be addressed if the grandparents are more aware through this process of the impact it has upon him.

The only other real challenge in determining an appropriate placement for C.V. is his cultural identity. [ 127 ] The paternal grandparents have a different heritage and culture from the maternal grandparents. While Ms. V. has not explored her [omitted for publication] heritage to date, she has become curious about it during these proceedings. C.V. has enjoyed cultural events while in Alberta but does not live an immersive lifestyle when there. It does not negatively impact him in any way to live in the faith, culture and traditions of his paternal grandparents.

His [omitted for publication] culture could still be preserved if he were to spend lengthy periods of time with his maternal grandparents. [ 128 ] Similarly, C.V.’s faith, culture and traditions built through life in Alberta would not be lost if he were to live in British Columbia with his maternal grandparents. At the same time, lengthy time with his paternal grandparents would ensure that their culture, faith and traditions are preserved as well. [ 129 ] There is also no true status quo for C.V. in the traditional sense.

While he was born in Alberta and began his life there, he was removed at a very early age by his maternal grandparents. For a good deal of time, he lived in British Columbia where he attended nursery school and Head Start. Thereafter, he shared his time with both sets of grandparents fairly equally. This continued until he started Kindergarten, at which time he was temporarily placed with his paternal grandparents. This was largely premised on what appeared to be a lack of compliance with C.V.’s medical requirements by the maternal grandparents.

The evidence strongly suggests that this compliance issue has been resolved. [ 130 ] A child cannot live full time in two provinces. Balancing the factors does not precisely trend in favour of one set of grandparents or the other. Where the paternal grandparents are stronger with C.V.’s medical requirements, his maternal grandparents are stronger with his culture and identity. I am satisfied that C.V.’s medical requirements can be met by the maternal grandparents with the appropriate orders in place. His cultural requirements cannot be met while he is in Alberta. [ 131 ] C.V. misses his mother as well.

His maternal grandparents have a secure plan in place to ensure he maintains that valued connection without being exposed to domestic violence. The conflict between mother and grandmother can be managed. It is a tenuous relationship, all the same, since T.J.’s Alberta issues are unresolved. [ 132 ] There appears to be less rigidity in the school environment at [omitted for publication]. Aspects of C.V.’s [omitted for publication] culture are a central focus at the school. He enjoys these activities and so this may give him a better chance to flourish in his education.

[ 133 ] On balance, I am satisfied that it is appropriate C.V.’s primary residence be with his maternal grandparents in British Columbia. He has strong community ties and favourable cultural exposure available to him. However, the amount of time he has spent with his paternal grandparents throughout his life must be preserved. In addition, the paternal grandparents have been much more proactive about C.V.’s medical requirements and therefore are suitable guardians for him. [ 134 ] I make an order under s. 51 of the Family Law Act that M.V., E.V., R.B. and R.T. are guardians of C.V.

I order that C.V.’s residence primarily be with R.B. and R.T. Parental responsibilities shall be shared equally between the four sets of grandparents. The parents have not appeared on this application and have not been engaged in C.V.’s upbringing for some time. I am not asked to remove them as guardians but they have abdicated that role entirely to their parents.

They shall have no parental responsibilities except that they shall be entitled to obtain information from third parties. [ 135 ] E.V. and M.V. shall have parenting time with C.V. every year from July 1 to August 15 or on such other dates as may be agreed between the parties. [ 136 ] E.V. and M.V. shall have parenting time with C.V. every spring break for not less than one week unless otherwise agreed by the grandparent guardians. [ 137 ] E.V. and M.V. shall have parenting time with C.V. for half of every winter break, alternating the first half and second half each year unless otherwise agreed by the grandparent guardians.

For 2019 and each odd numbered year thereafter, E.V. and M.V. shall have the first half of winter break commencing on the Saturday after the last day of school; and for each even numbered year commencing in 2020, E.V. and M.V. shall have the second half of winter break ending on the Saturday before school re-commences. [ 138 ] If the parties are unable to otherwise agree with respect to the exchanges, the V. shall pick up C.V. at the commencement of their parenting time, and R.B. and R.T. shall pick up C.V. at the end of the V. parenting time. [ 139 ] The V. shall have telephone, Facetime, Skype or other communication with C.V. not less than one time per week at a time and in a manner as agreed between the parties.

This parenting time shall be private and uninterrupted. [ 140 ] All grandparent guardians shall ensure that C.V. is not exposed to domestic conflict or violence. [ 141 ] I make the following specific orders considering C.V.’s health and wellbeing. Failure to comply with these orders may be fundamental and could result in a change of residency for C.V.: Medical Needs

a) R.B. and R.T. shall ensure that they obtain a referral to an endocrinologist for C.V. to obtain a proper medical regime and treatment plan. They shall advise E.V. and M.V. immediately upon obtaining the referral and will thereafter advise E.V. and M.V. of the time, date and particulars of that appointment.

b) R.B. and R.T. shall ensure that C.V. takes his Synthroid in accordance with the directions of his treating physicians and that he otherwise follows the medical regime and treatment plan prescribed by the endocrinologist and his treating physician.

c) R.B. and R.T. shall ensure that C.V. attends monthly for blood work to ensure that C.V. is within the acceptable ranges for TSH and T4 Free until such time as C.V.’s endrocrinologist advises in writing that C.V. is in compliance and no longer requires such frequent blood tests.

d) R.B. and R.T. shall obtain copies of all blood work results as the tests are taken, and provide those results to E.V. and M.V. immediately by email or such other communication as agreed between the parties.

e) R.B. and R.T. shall obtain a referral from their physician for C.V. to be assessed by a psychologist for trauma and attention deficit hyperactivity disorder. They shall advise E.V. and M.V. immediately upon obtaining the referral and will thereafter advise E.V. and M.V. of the time, date and particulars of that appointment and all subsequent appointments.

f) R.B. and R.T. shall obtain a holistic treatment plan for C.V. that includes prescription medication recommended by his psychologist as well as therapeutic counselling and activities; and they shall ensure that C.V. is in compliance with that holistic treatment plan.

g) R.B. and R.T. shall advise E.V. and M.V. of the details of the holistic treatment plan and E.V. and M.V. shall comply with the holistic treatment plan to the extent practicable while C.V. is in their care.

h) Until C.V. has been referred to a psychologist, R.B. and R.T. shall ensure C.V. continues to take his Biphentin prescription as directed by Dr. Galante.

i) R.B. and R.T. shall ensure that bottled water is made available for C.V.’s consumption until such time as a water analysis of their well confirms that the mineral content of their water is not interfering with C.V.’s medications.

j) R.B. and R.T. shall provide advance notice to E.V. and M.V. of all medical, counselling and therapeutic appointments for C.V. including the name and contact particulars of any service provider; and E.V. and M.V. are entitled to attend any and all appointments. Faith

a) R.B. and R.T. shall ensure that C.V. has access to a Jehovah’s Witness Hall if C.V. chooses to attend a meeting.

b) Neither party shall criticize, object to or minimize the faith of any other party.

[ 142 ] Apart from the foregoing, and bearing in mind that counsel are not ordinarily practicing in British Columbia, these are the standard orders which must be included:

a) Under s. 51(1)(

a) of the Family Law Act (FLA) R.T., R.B., E.V. and M.V. are appointed guardians of the child (“grandparent guardians”)

b) Guardianship must be exercised as follows: a. In the event of the death of a guardian, the surviving guardians will be the only guardians of the child; b. Each grandparent guardian will have the obligation to advise the other grandparent guardians of any matters of a significant nature affecting the child; c. Each grandparent guardian will have the obligation to discuss with the other grandparent guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; d.

The grandparent guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; e. In the event that the grandparent guardians cannot reach agreement on a significant decision despite their best efforts, then the grandparent guardians shall mediate the issue with Family Justice or such other family mediation service as the parties agree to before any party brings the issue before the court; and, f.

Each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers. [ 143 ] Under s. 40(2) of the FLA , the grandparent guardians will share equally all parental responsibilities for the child, except day-to- day decisions will be the responsibility of the grandparent guardians with parenting time. [ 144 ] J.V. and T.J. shall each have such reasonable parenting time as may be agreed by the grandparent guardians exercising parenting time from time to time, to be supervised at the discretion of those grandparent guardians. [ 145 ] Ms.

Hensel is responsible for drawing up this order. It is my expectation that orders are provided for entry within 30 days of issuance of Reasons. _____________________________ S.D. Frame Provincial Court Judge