D.A.S.V. v. E.R.Y., 2022 BCPC 10

Citation: D.A.S.V. v. E.R.Y. 2022 BCPC 10 Date: 20220114 File No: 7443 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.A.S.V. APPLICANT AND: E.R.Y. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.M. MAH Counsel for the Applicant: Z. Suche Counsel for the Respondent: D. Wilson Place of Hearing: Richmond , B.C. Date of Hearing: December 22, 2021 Date of Judgment: January 14, 2022

Introduction [ 1 ] The parties are former partners and parents to a son, D. The applicant is D.’s father and seeks to vary an October 23, 2020 court order with respect to parenting time.

Counsel confirmed that only paragraph 4 of the order, which states “D.A.S.V. may have parenting time with D. as agreed to between the father and legal counsel for E.R.Y.” is in issue. [ 2 ] The respondent is D.’s mother and opposes the variation and seeks to terminate the applicant’s guardianship of D. [ 3 ] As the applicant and the parties’ son share identical first names, I will refer to the applicant as D.A.S.V. and the parties’ son as D. Issues [ 4 ] The triable issues before the Court are: 1. Should the October 23, 2020 court order be varied to grant specific parenting time to the applicant? 2.

Should the applicant’s guardianship of D. be terminated? Background Facts [ 5 ] D.A.S.V. was born on [omitted for publication], in Lima, Peru. He moved to Canada in 2004 and currently lives here. D.A.S.V. testified that he owned his own [omitted for publication] company in Vancouver and has worked for his father’s construction company in Peru for the past two years. [ 6 ] E.R.Y. was born on [omitted for publication], and is employed as a [omitted for publication].

E.R.Y. testified that D.A.S.V. did not work while they were together and often would tell her that “work called” and then leave late at night and not return for days. She said that he received cash and made her issue pay stubs for this money through a construction company. [ 7 ] D.A.S.V. testified that the parties met in 2015 and were not living together when D. was born. They began living together in an apartment in Richmond in 2018 after they married. [ 8 ] E.R.Y. testified that the Ministry of Children and Family Development (“MCFD”) first became involved in 2015 when she was pregnant.

She and D.A.S.V. had argued inside her car outside her mother’s apartment when D.A.S.V., who was driving her car, kicked her out, slammed the door on her leg multiple times, and left. E.R.Y. reported this incident to the police but later recanted her statement because D.A.S.V. asked her to. T.Y. is E.R.Y.’s mother and testified that D.A.S.V. drove away in a rage that day. [ 9 ] D. was born on [omitted for publication]. E.R.Y. testified that MCFD came to the hospital and D.A.S.V. had to agree not to be around D. or D. would be removed.

Subsequently, a MCFD Family Plan was entered into on August 5, 2016 and a copy of this plan was filed as an exhibit. The MCFD Family Plan included individual and joint counselling for the parties and for E.R.Y. to meet with a Public Health Nurse. A Form F Report to the Provincial Court of British Columbia was also entered into evidence and indicated that the Director had reasonable grounds to believe that D. was living in a situation of domestic violence and had been or likely would be physically harmed by a parent.

In particular, the form stated: “I explained to E.R.Y. that given the concerns that MCFD had regarding domestic violence and information about D.A.S.V.’s criminal background, MCFD did not support E.R.Y. residing with D.A.S.V. or D.A.S.V. having contact with the baby until MCFD could assess further.” MCFD sought a supervision order. E.R.Y. said that they followed the order for a couple for months and D.A.S.V. promised to change. [ 10 ] D.A.S.V. agreed that MCFD became involved on the day that D. was born.

He testified that E.R.Y. made “fake allegations that I assaulted her” and “then, she dropped the allegations.” MCFD required him to take anger management counselling and both parties to do counselling before the file was closed. [ 11 ] E.R.Y. testified that D.A.S.V. did not provide much care for D. as a newborn other than playing with him for a few minutes. She said that he would return in the mornings smelling of alcohol and become upset when D. tried to wake him. [ 12 ] E.R.Y. testified that when D. was about two and a half months old, the parties took him to Peru.

There was more domestic violence in Peru and upon their return in the fall of 2016, E.R.Y. moved to her mother’s home. [ 13 ] D.A.S.V. testified that for the first few years of D.’s life, he travelled with his son to Peru three times. On one other occasion, D. went with E.R.Y. and his paternal grandmother and without D.A.S.V. D.A.S.V. reviewed a series of pictures of his time with D. which included the day of D.’s birth, a trip to Harrison Hot Springs in 2018, a trip to Squamish in 2018, an admission to hospital in August 2019 for Kawasaki disease, and just prior to D.A.S.V.’s departure to Peru in February 2020.

A screenshot dated August 15, 2020, was taken of a video call while D.A.S.V. was at work in Peru and D. was in the care of his paternal grandmother. [ 14 ] E.R.Y. testified that the abuse escalated to violence after D. was born and one of the worst instances occurred when D.A.S.V. accused her of cheating, locked her in the bathroom, and struck her head with a cell phone until her head split open and she was bleeding. E.R.Y. escaped to her mother’s home and her mother drove her to confront D.A.S.V.’s mother, R.D.V.G.

Subsequently, they went to the hospital so that E.R.Y. could be stitched and the police arrived but E.R.Y. declined to elaborate further for fear that D. would be taken away. It was unclear when this alleged assault occurred. [ 15 ] T.Y. testified that she took her daughter to confront R.D.V.G. after this incident and then, to the hospital where the police attended. R.D.V.G. denied that E.R.Y. and her mother came to her house after this assault or that E.R.Y. arrived with her head split open and blood over her.

D.A.S.V. denied in cross-examination that he had locked E.R.Y. in the bathroom and hit her head with a cell phone

until she started bleeding. [ 16 ] E.R.Y. testified that in 2017, she moved to Attira which is an organization that provides housing for abused women. At that time, D. was able to go to daycare and E.R.Y. returned to school. During this time, D.A.S.V. saw D. one to two times per week at R.D.V.G.’s initiation. [ 17 ] D.A.S.V. testified that his mother was always involved with D. and would care for him when he and E.R.Y. went away for their honeymoon or went out for the night. [ 18 ] The parties married on [omitted for publication], 2018 and according to the pleadings, separated on December 31, 2019.

However, E.R.Y. put the date of separation earlier, on July 15, 2019, when she moved out of the home that she and D.A.S.V. were living in. [ 19 ] E.R.Y. testified about another alleged assault that occurred on May 21, 2019 and which led to the separation. That day, E.R.Y. had signed a contract for work and returned to R.D.V.G.’s home where the parties were living and shared her news with D.A.S.V.’s brothers and step-father. She hugged D.A.S.V.’s step-father and said that later, D.A.S.V. accused her of being a “slut for groping his step dad” and hit her on the cheek causing a fracture. E.R.Y. began to bleed.

Eventually, R.D.V.G. kicked her son out and E.R.Y. continued to live at R.D.V.G.’s home with D. E.R.Y. said that she decided to leave the relationship that day as she had a job and was not reliant anymore on D.A.S.V. for financial support.

She moved out on July 15, 2019, as D.A.S.V. was in Peru then and could not stop her. [ 20 ] D.A.S.V. testified that E.R.Y. moved out on July 15, 2019, because of “lots of cheating involved on her part.” He denied that he punched and fractured her cheekbone in May 2019. [ 21 ] D.A.S.V. testified he had left to Peru around May 2019, and they agreed between them that he would care for D. three to four times per week. D. would sleep over and he or his mother would drive D. to daycare.

E.R.Y. testified that the court proceedings began in September 2019, and around that time, R.D.V.G. would pick up D. one to two times per week but was not sure if D.A.S.V. saw D. regularly during those times. R.D.V.G. confirmed that after the parties separated, she cared for D. once per week. [ 22 ] E.R.Y. testified that the

schedule of D.A.S.V. seeing D. one to two times per week continued largely up to December 2019, when another assault occurred. E.R.Y. testified that near this time, she had started to distance herself from D.A.S.V. as she did not trust him around D. She said that D.A.S.V. accused her of being a “rat” for talking to the police about him and wanted to see the messages on her phone. He grabbed her arm and pants and D. came between them. D.A.S.V. pushed D. away and E.R.Y. told D. to go outside. Eventually, she was able to escape outside and called the police.

D.A.S.V. was not arrested as a result of this incident and there was no parenting arrangement made afterwards as D.A.S.V. left for Peru. E.R.Y. admitted that she was talking to the police at this time as allegedly, D.A.S.V. was being investigated as a suspect in a stabbing. [ 23 ] With respect to the December 2019 alleged assault, D.A.S.V. testified that on December 9, 2019, he was trying to retrieve his phone from E.R.Y. and grabbed it resulting in an argument. D. came into the room during the argument. It was put to D.A.S.V. that D. ran in between them during the assault and he replied “Never in the same room.

When he came, he left with her.” He denied that any assault occurred. [ 24 ] D.A.S.V. testified that he left for Peru in February, 2020 as he went twice a year to visit his father and was involved in his father’s business. His return ticket was booked for April 1, 2020, but he was unable to return as the Peruvian government closed the airport on March 15, 2020, due to the COVID pandemic.

He said that he had frequent video calls with D. while he was in Peru and was not aware of the protection order that E.R.Y. had obtained while he was away. [ 25 ] The court file shows that on February 24, 2020, E.R.Y. obtained a protection order against D.A.S.V. The court file also has an affidavit of service from a deputy sheriff confirming that D.A.S.V. was served personally with the protection order, notice of motion, and affidavit on February 24, 2020. [ 26 ] D.A.S.V. testified that he learned about the protection order when he returned to Canada in August 2021.

In cross-examination, it was put to D.A.S.V. that he was, in fact, aware of the protection order earlier as he referenced it in a May 5, 2021 email, which was filed at Tab 15 of his own exhibit. Later in his testimony, D.A.S.V. testified that the order that he became aware of upon his return was Judge Denhoff’s October 23, 2020 order.

Then, further in his cross-examination, D.A.S.V. said that he knew that he was not supposed to speak with E.R.Y. and did not do so until she emailed him to say that he could talk to her now. [ 27 ] E.R.Y. referred to a screenshot of a WhatsApp conversation between R.D.V.G. and her that she believes took place on February 24, 2020, with respect to service of the protection order. R.D.V.G. wrote “E.R.Y. the police came again with your stupid court order.

You just brought more problems to my family.” [ 28 ] E.R.Y. testified that D. was traumatized by the domestic violence and began to bite, kick, and hit friends at daycare. Once this behaviour started, she took D. to Kit Lam, a counsellor for children of domestic violence, and to Dr. Julie Gibson, a psychologist at Richmond Hospital. [ 29 ] On October 23, 2020, Judge Denhoff ordered that E.R.Y. have all parenting responsibilities and that D.A.S.V. have parenting time as agreed between him and E.R.Y.’s counsel.

D.A.S.V. was not present at this hearing and testified that he was sick and “needed to reschedule” but “they did not.” E.R.Y. testified that D.A.S.V. was not present for any court proceedings and at her request to his mother, D.A.S.V. wrote a letter that was presented to the court for the purposes of child support and parenting time. [ 30 ] The court file contains E.R.Y.’s October 22, 2020 affidavit, which has a September 16, 2020 letter, from D.A.S.V. attached as Exhibit B. In this letter, D.A.S.V. stated that he had been in Peru since the end of February, 2020 and did not know when he would return.

D.A.S.V. said that he would like to give all parenting responsibilities to E.R.Y. and “I understand that I am still a guardian of my son, and that I am able to have parenting time with him which is to be agreed upon by his mother E.R.Y.”

[ 31 ] R.D.V.G. testified that D. spent Christmas 2020 with her family and in early 2021, D. told her that E.R.Y.’s new partner had hit him.

R.D.V.G. created a safe word for D. and when she reported this development to E.R.Y., E.R.Y. looked “upset and disappointed.” R.D.V.G. said that she had not seen D. since that time except for once when she went to D.’s after school daycare to see him for “one minute.” D.A.S.V. testified that his video calls with D. ended in January, 2021. [ 32 ] E.R.Y. testified that she did not renew the protection order after it expired in March, 2021 as her counsel said that it would be difficult to do so as D.A.S.V. was out of the country. [ 33 ] D.A.S.V. referred to two emails in April 2021, where E.R.Y. contacted him and advised that it was fine to speak as the protection order had expired.

E.R.Y. testified that she initiated this contact in order to verify D.A.S.V.’s email address for the purpose of a substituted service application in their divorce proceedings. [ 34 ] An undated letter from CHIMO Community Services confirmed that D. had seen a counsellor in the P.E.A.C.E. program from April 20, 2020 to March 10, 2021, for 28 sessions. The P.E.A.C.E. program was designed for youth who had been exposed to domestic violence. D. showed a significant improvement in anger management and emotional regulation and developed a strong sense of security in the process. [ 35 ] Dr.

Gibson prepared an April 22, 2021 letter addressed “To whom it may concern” and which was sent to D.’s school. An IEP was recommended with close monitoring of D.’s attention, hyperactivity, and impulsiveness. [ 36 ] Dr. Gibson prepared a report, based on a May 20, 2021 assessment, which was put into evidence. Dr.

Gibson noted that D. had been referred in April, 2020 by the Richmond Early Childhood Mental Health Program “for diagnostic clarification and treatment recommendations regarding symptoms of aggression and other behavioural concerns in the context of exposure to trauma.” She found his history and presentation to be consistent with other specified trauma related disorder with significant features of hyperarousal and intrusion symptoms. She felt that the anger and violence that D. witnessed from his father was coming into his own interactions with his mother including biting, hitting, and kicking her. Dr.

Gibson recommended play based treatment through CHIMO P.E.A.C.E. and she would focus on parental support. Dr. Gibson noted that D.’s behaviour reportedly worsened after being exposed to video conferencing sessions with his father while at R.D.V.G.’s house and improved once these communications were stopped. Her last session with D. was on May 20, 2021, and he had improved immensely. D. was doing well in daycare settings and at home and his episodes of anger were much shorter and less intense. [ 37 ] E.R.Y. admitted that Dr.

Gibson and D.’s counsellor have not recommended that D. not see his father again. [ 38 ] D.A.S.V. testified that he returned to Canada in August 2021, as he had been obligated to work for his father for a year. At that time, he tried to exercise parenting time pursuant to the October 23, 2020 order, but was refused and has not seen D. since. [ 39 ] On August 10, 2021, Judge Lee granted another protection order for two months. E.R.Y. testified that the Crown had advised her of D.A.S.V.’s return and she obtained the protection order that same day.

She confirmed that her application materials for the protection order referenced stabbings and that D.A.S.V. regularly asked her to hide bloodied knives and confessed the names of people whom he stabbed.

She never reported this information to the police for fear of repercussions and said that a gun was once pulled to her head by someone looking for D.A.S.V. [ 40 ] When asked about the allegations made in the application for the August 10, 2021 protection order, D.A.S.V. denied that he had ever stabbed anyone, owned a gun, fought physically with E.R.Y. and caused her to go to hospital, or threatened E.R.Y., her new partner, or D. On cross-examination, he admitted that he pleaded guilty to possession of a firearm in 2011 and said that the firearm, a loaded Colt 45 handgun, was left in his car by a friend.

D.A.S.V. said that he had the loaded gun in his pants pocket when he was randomly stopped outside Wendy’s where he was buying food. He reiterated that he had “no idea why” he was stopped by the police and denied any associations with gangs or serious crimes. [ 41 ] The August 10, 2021 protection order was vacated on September 15, 2021, and a new order made that D.A.S.V. not attend at D.’s school. [ 42 ] Now, E.R.Y. is engaged to her new partner whom she met in February 2020. She denied that D. had reported that her fiancée had hit him but said that D. told her that R.D.V.G. asked him to say that.

She said that R.D.V.G. wanted to see D. for his birthday this year and she refused. That same day, April 30, 2021, an anonymous report was made to MCFD alleging that her fiancée had hit D. Pursuant to a June 16, 2021 letter from MCFD, the file was investigated and closed. [ 43 ] D.A.S.V. testified that he will return to Peru for 6 to 12 months and before he leaves, would like to see D. three times per week. In his application, D.A.S.V. sought to have parenting time four days per week from 8 a.m. to 5 p.m. until he left for Peru.

Then, while in Peru, he sought parenting time by video at least three times per week. [ 44 ] At present, D. is not in counselling. E.R.Y. testified that he started kindergarten in September and all was well until R.D.V.G. attended after school and wanted to take him. D. became upset and the police were called and the school was notified. D. began to have nightmares and had to see Ms. Lam again. [ 45 ] In cross-examination, E.R.Y. did not agree that it was important for D. to see his father due to the “way that D.A.S.V. is.” She said that D. only mentions his father with respect to violence.

She did not support D. seeing his father given that D.A.S.V. wanted in person visits a few times before leaving to Peru which would cause “feelings and confusion”. She said the risk of having video calls was the empty promises and confusion as suggested by the psychologist. 1. Should the October 23, 2020 court order be varied to grant specific parenting time to the applicant? Law

[ 46 ]

Section 216 of the Family Law Act applies to the variation of a parenting arrangement order. Specifically, section 216(3) of the Family Law Act provides that a court may change, suspend, or terminate an interim order if satisfied that at least one of the following circumstances exists:

a) there has been a change in circumstances since the interim order was made, or

b) evidence of a substantial nature becomes available that was not previously available at the time the interim order was made [ 47 ] Pursuant to section 216(4) of the Family Law Act , before making an order to change, suspend, or terminate an interim order, the court must consider all of the following: (

a) the change in circumstances or the evidence, or both, referred to in subsection (3); (

b) the length of time that has passed since the interim order was made; (

c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (

i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (

d) whether a trial has been scheduled; (

e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [ 48 ] In J.W. v. J.S . , 2018 BCPC 232 , the court stated that in an application to vary an interim order, the court should also consider if the change in circumstances was a material change, what hardship may be caused to the parties if the interim order was varied, and what was in the best interests of the child. [ 49 ]

Section 37 of the Family Law Act states: 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. [ 50 ] In short, the threshold test is whether there has there been a material change of circumstances since the interim order was made or if evidence of a substantial nature has become available that was not available at the time the interim order was made.

If so, then the Court must consider: a. the change in circumstances or the new evidence; b. the length of time that has passed since the interim order was made; c. whether the interim order was made for the purpose of having a temporary arrangement in place; d. whether a trial has been scheduled; e. any potential adverse effect or hardship on a party or a child of a party of either making or declining to make an order to change, suspend, or terminate; and

f. the best interests of the child. Analysis [ 51 ] Both counsel agreed that the test under

section 216 of the Family Law Act was appropriate and D.A.S.V. relied only on the basis that a material change had occurred - namely that E.R.Y.’s refusal to facilitate any parenting time was not contemplated by the October 23, 2020 order. [ 52 ] E.R.Y. argued that for a material change to have occurred, the court must not have contemplated that E.R.Y. would refuse any parenting time at all which is speculative and inconsistent with the terms of the order.

E.R.Y. argued further that even though D.A.S.V. was not present, the Court found it appropriate to proceed in his absence. [ 53 ] Although E.R.Y. referenced the September 16, 2020 letter from D.A.S.V. in her testimony, neither party referenced it in argument. As stated above, in this letter, D.A.S.V. said that he was still a guardian of D. and acknowledged that he would be able to have parenting time with D. as agreed upon by E.R.Y. In my view, a plain reading of D.A.S.V.’s letter confirms an understanding that his parenting time would be at E.R.Y.’s sole discretion as he required her agreement.

The complete denial of parenting time by E.R.Y. was not only a realistic possibility but a likely result given the tumultuous relationship between the parties including the February 24, 2020 protection order which D.A.S.V. was aware of.

Therefore, I find that there has been no material change in circumstances since the October 23, 2020 interim order. [ 54 ] As D.A.S.V. confirmed that the only basis he relied on to vary the court order was a material change in circumstances, which I find has not been established, D.A.S.V. has not met the first part of the test. [ 55 ] If I am wrong, I have addressed the remainder of the test to change, suspend, or terminate the interim order. In this respect, I have considered the testimony and evidence of both parties and did not find D.A.S.V. to be credible.

I found his denial of the alleged assaults unlikely to be true given the documentary and viva voce evidence presented. On an aside, I note that it would have been useful for the court to have any police reports, medical records, or photographs of the injuries from these assaults. [ 56 ] Further, D.A.S.V.’s own evidence was internally inconsistent. For instance, D.A.S.V. testified that he never knew about the first protection order until he returned in August 2021, despite the fact that he referenced it in earlier emails which he put into evidence.

Most notably though, D.A.S.V. had been served personally by a deputy sheriff on February 24, 2020, with the protection order. There was also a lack of cogency in D.A.S.V.’s evidence and in particular, his explanation that a random police search led to the finding of the loaded firearm was very difficult to believe. [ 57 ] While I find D.A.S.V.’s testimony to be unreliable, I must still consider E.R.Y.’s testimony. In my view, E.R.Y. was forthright, accurate, and believable. She had no inconsistencies in her testimony and was not shaken on cross-examination.

Apart from her blanket and curt denial to the suggestion that there was benefit for D. to see his father, which I expect is largely the result of fear and anger from the abuse, her testimony was objective, credible, and reliable and where applicable, confirmed by her mother who I also found to be a reliable and credible witness.

There was a conflict between their testimony and R.D.V.G.’s denial that E.R.Y. and her mother came to her house with E.R.Y.’s head split open and blood over her; in this regard, I prefer E.R.Y. and her mother’s evidence. [ 58 ] D.A.S.V. argued that D. needed regular parenting time with both parents and depriving him of both parents would be detrimental. He also argued that while his relationship with E.R.Y. was not good, there was nothing to suggest that D.A.S.V. was independently unfit outside of that relationship.

He argued that he was an active and involved father until he left the country and that the longer that he could not speak to D., the more difficult it would be to re-establish a relationship. [ 59 ] D.A.S.V. also argued that supervised parenting time can be ordered if the court deemed it appropriate and relied on the considerations set out in L.A.M.G. v. C.S., 2014 BCPC 172 .

There, the Court set out several considerations for supervised parenting at para. 35 including a child’s right to know and have relationships with both parents and to have maximum contact with both parents, the nature of the relationship and attachment, any limitations to good parenting judgment, the nature of the relationship between the parents and its impact on the child, the need to protect the child from physical, sexual, or emotional abuse, whether the child was being re- introduced into the life of a parent after a significant absence, a history of harassment, violence, and other harmful behaviour directed towards the primary caregiver, and a history of parental alienation. [ 60 ] I have considered these arguments and the factors set out in the second part of the test.

There has been no material change of circumstances and approximately 14 months has passed since the interim order was made. There was no evidence or argument made by either party about whether the interim order was meant to be a temporary arrangement or if a trial had been scheduled. [ 61 ] With respect to any potential adverse effect or hardship on E.R.Y. or D. of either making or declining to make an order to change, suspend, or terminate, I have considered that along with D.’s best interests as set out in

section 37 of the Family Law Act . I accept the evidence before the court that D. did not respond well to the last communication that he had with D.A.S.V. Dr. Gibson opined that D.’s own actions of biting, hitting, and kicking his mother were fueled by the anger and violence that he witnessed in his father and that his behaviour worsened after the last video calls. While I appreciate that Dr. Gibson is basing her opinion, in part, on E.R.Y.’s reports, those reports are accepted by the court.

I find that parenting time with D.A.S.V. has harmed and will harm D.'s health and emotional well- being and that D.’s health and emotional well-being have improved since parenting time with his father has ceased. [ 62 ] Further, I have considered the nature and strength of the relationships between D. and D.A.S.V. Despite the applicant’s argument to the contrary, I find that D.A.S.V. has provided little care for D. and do not find that there is a strong relationship between them. D.A.S.V. said that he could not return from Peru until August 2021, as he had to work for his father for a year.

There was no corroborating evidence or other reason provided and I am not convinced that D.A.S.V.’s father would insist that D.A.S.V. remain in Peru to the detriment of his son and grandson. Moreover, D.A.S.V. intends to return to Peru shortly and eventually spend most of his time there. [ 63 ] Also, I find that E.R.Y. has been and continues to be the primary caregiver for D. in all aspects of his life. D. has lived with

E.R.Y. for his entire life. For this reason and given his young age, D. requires the stability that E.R.Y. has provided and which D.A.S.V. has not. In addition, I accept that E.R.Y. and D. have a stable and good relationship with E.R.Y.’s new partner. [ 64 ] Finally, I have given great weight to the last four factors in

section 37 of the Family Law Act . I disagree that there is no evidence to suggest that D.A.S.V. was independently unfit outside of his relationship with E.R.Y. to care for D. I have grave concerns about family violence from D.A.S.V. and its impact on D.’s safety, security, and well-being and D.A.S.V.’s ability to care for his son particularly when he is angry. I also have grave concerns that E.R.Y. will be required to communicate regularly with D.A.S.V. which increases the risk to her and D.’s safety and well-being when disagreements arise and will likely rekindle memories of family violence.

I am cognizant that D.A.S.V. has only been charged with assault stemming from the December, 2019 incident and is presumed innocent.

While the outcome of that proceeding will certainly become relevant to any future consideration of D.’s safety, security, and well-being, I am satisfied on a balance of probabilities that all of the assaults that E.R.Y. testified about did occur – which should not be taken as any judicial comment or finding with respect to D.A.S.V.’s potential criminal liability. [ 65 ] D.A.S.V. argued that if the Court found that D. had been damaged by family violence, it was not logical that exposure to his father would harm D.

D.A.S.V. admitted that it was “untested territory” and that there had been no time period where he had experienced this type of individual contact with D. However, I disagree. The medical evidence that was presented suggested that D. had been traumatized by communications with D.A.S.V. and the Court is not prepared to “test” the validity of this conclusion at the expense of D.’s welfare.

Further, I note that D.A.S.V. could have and did not provide any expert or medical opinion to alleviate this concern. [ 66 ] For all of these reasons, I find that the remainder of the test has not been satisfied and that it is in D.’s best interests not to have parenting time with his father. As such, there is no need to consider supervised parenting time. 2. Should the applicant’s guardianship of D. be terminated? Law [ 67 ] With respect to E.R.Y.’s application to terminate D.A.S.V.’s guardianship,

section 51 of the Family Law Act applies: 51

(1) On application, a court may (

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act , terminate a person's guardianship of a child. [ 68 ] The test to consider under

section 51 of the Family Law Act is D.’s best interests as set out in

section 37 of the Family Law Act . In addition, I am cognizant of the general principles to consider as outlined by the courts. In J.W. K. v. E.K. , 2014 BCSC 1635 , the parties had two children and separated due to the father’s drug addiction. Three years after separation, the mother applied to terminate the father’s guardianship on the basis of the father’s substance abuse. There was no dispute that the father fell into regular relapses but still had a close relationship with his children. The Court stated at para. 23: [23] In D. v.

D. , 2013 BCPC 135 , Judge Merrick said that it will rarely be in a child's best interests to terminate guardianship and thereby turn a parent from a guardian into a person with contact. Where there are concerns about one guardian's parenting capacity, the court should first consider whether a reallocation of parenting responsibilities can eliminate any risk to the child's best interests arising from the parent's continued guardianship. If so, the court should refuse to terminate. This approach allows the child to safely retain the benefit of a meaningful and significant relationship with their parent.

Judge Merrick said this: 24 When considering an application to terminate a parent's guardianship, I am of the view that considering the factors enumerated in s. 37(2) of the Family Law Act , termination can only occur in the most extreme situations. The approach to be taken is, first, to ask whether, through an allocation of parenting responsibilities, it continues to be in the best interests of the children that the parent remain a guardian. If it is, guardianship should not be terminated.

It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children. 25 In my view, it will be rare when that is in the child's, or in this case, the children's best interests. 26 By first determining whether a parent guardian can remain a guardian by allocating or reallocating parenting responsibilities, parents will have the maximum opportunity to remain a significant part of the child's life. … [25] The British Columbia Supreme Court has commented favourably on the approach set out in D. v.

D. In M.A.G. v. P.L.M. , 2014 BCSC 126 , Madam Justice Fleming cited the case with approval, referring to it as "persuasive authority" and summing up the decision as follows: [44] ... The thrust of the decision is that by allocating or reallocating parental responsibilities to a more capable parent as opposed to terminating guardianship, a child may safely retain the benefit of having a parent remain a significant part of his or her life. [ 69 ] In A.T. v. M.T. , 2016 BCSC 502 , the parties had one child who was eight years old.

The Court found that joint guardianship was in the child’s best interests: 54 I find joint guardianship in the child's best interests. During the marriage, after separation, and continuing to the present, he has been involved positively in the child's life. His point of view on life and what is important in it differs in some respects, but is complementary to the mother's perspective on the child's needs. The mother has already been conferring with the father to a degree on matters affecting the child such as early education -- dealt with without conflict.

… 56 In recent months, the child has had more parenting time with the father, in Vancouver. The child has also had some positive visits with the paternal grandparents in their home. It is in the child's best interests that the father be in position to decide recreational and other activities for the child; and to seek medical and other care as necessary when in his care. 57 As the child matures, some guardianship questions are guaranteed to become more challenging.

In my opinion, the quality of the decisions made would be enhanced by the father's contribution of his perspectives and life experiences. … 59 I find it would be healthy for the child's emotional development that the child come to appreciate both parents are responsible for the child's well-being. If the child perceived her father has no parenting responsibilities or authority to make decisions, this would effectively diminish the importance of his role in the child's life and his authority at times when it needed to be exercised.

Further in this vein, the testimony of the claimant and particularly her father was quite clear. They did not wish to have the respondent involved in the child's life. Mr. C., the claimant's father, was than discernibly contemptuous of the respondent. This is unfortunate, but it underlines the need to leave no room to doubt in anyone's mind that the respondent is the child's father, and will continue to play an important and positive role in the child's life.

I find the father becoming a guardian would foster and encourage his involvement in the child's life and contribute to the child's healthy emotional development. … 61 As with all orders respecting children, the court must consider the best interests of the child only. This principle applies to guardianship orders. I find it is in the child's best interest that the respondent be designated a guardian. [ 70 ] As set out above, I have considered the best interests of D. and in particular, the factors set out in

section 37 of the Family Law Act . I find that D.’s health and emotional well-being have not been and absent a substantial change, unlikely will be enhanced and optimized by D.A.S.V. In my view, there was insufficient evidence about any regular and meaningful family, social, recreational, or extracurricular activities that D.A.S.V. has or would like to participate in with D.

To date, D.A.S.V. has taken and shown little interest in D.’s life and has not been a positive influence particularly with regards to domestic violence. [ 71 ] E.R.Y. argued that D. is doing well in their own family unit and that the evidence shows that D.A.S.V.’s involvement in D.’s life has been deleterious. E.R.Y. also argued that there was no evidence of a great yearning by D. to rekindle his relationship with his father and warned of unpacking bad memories.

I accept E.R.Y.’s arguments but in my view, respectfully, these arguments are more germane to considerations of parenting time which E.R.Y. has sole discretion over. [ 72 ] While these circumstances are very close to meeting the extreme situation as described by Judge Merrick, I am narrowly satisfied that at present, it is in D.’s best interests that D.A.S.V. remain a guardian given that all parenting responsibilities have already been allocated to E.R.Y.

I have decided so because D.A.S.V. is young and I am hopeful that once his legal matters are concluded, he will take steps to improve himself and become a positive influence for D. If so, D. would benefit from D.A.S.V.’s perspectives and life experiences and enjoy a meaningful and significant relationship with his father. [ 73 ] As such, E.R.Y.’s application to terminate D.A.S.V. as a guardian of D. is dismissed. ___________________________ The Honourable Judge D. M. Mah Province of British Columbia