D.G. v. A.M. Date:, 2013 BCPC 134

Citation: D.G. v. A.M. Date: 20130603 2013 BCPC 0134 File No: 95810 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: D.E.L., born [DOB ] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: A.M. PARENT AND: D.G. PARENT File No: 94841 Kelowna AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.G. APPLICANT AND: A.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.M. BURDETT

Counsel for the Director : Dennis Boon Counsel for A.M.: Joy Bullick Counsel for D.G.: Thomas Berger Place of Hearing: Kelowna , B.C. Dates of Hearing: May 6, 7, 8 and 9, 2013 Date of Judgment: June 3, 2013 [ 1 ] D.G. and A.M. have two children: L.G., born [DOB] and D.L., born [DOB]. D.G. and A.M. separated in April 2012 and D.G. moved L. to his mother’s home. D. was born three months later and was removed shortly thereafter by the Director. [ 2 ] There are three applications before the Court.

In the first, the Director seeks a continuing custody order for D. under section 49(5) of the Child, Family and Community Service Act. D.G. consents to that Order; A.M. does not. [ 3 ] In the second application, D.G. seeks a sole guardianship order under the Family Law Act for L., child support and scheduled supervised parenting time for A.M. [ 4 ] In the third application, A.M. seeks an order for joint guardianship of L. with L.’s principal residence being with her. [ 5 ] The hearing of these three applications took place at the same time. BACKGROUND [ 6 ] The following are the relevant facts.

A.M. (“A”) was born on February 25, 1991 and is presently 22 years old. Her mother is K.W. and her father is S.L. A. has two younger sisters. The girls were removed from their parents by the Director in 1998 and again in 2000. Ms. W. and Mr. L. were unable to properly care for their children because of their drug addiction, criminality and frequent incarceration. The children were placed in the continuing custody of the Director in 2003 and were thereafter adopted by C. and B.M. [ 7 ] A. was 12 when she was adopted and signed a consent to the adoption order.

She attended Kelowna Christian School and graduated in 2009. In July 2009 she moved in with D.G. She never bonded with her adoptive parents and while she was living with the Ms, her biological parents re-entered her life. Mrs. M. became concerned when A. received gifts from her parents, which Mrs. M. suspected were stolen. [ 8 ] D.G. (“D”) is 25 years old. He moved to Kelowna in 1997 with his father after his parents separated. His father, brother and mother live in Kelowna. When L. was born, he was working at a saw mill which burned down shortly after L.’s birth.

He next secured a job cleaning commercial exhaust fans which required him to be out of town two or three weeks at a time. He now works full time at a saw mill. [ 9 ] A. moved in with D. shortly after they met. He was living with roommates on Hein Road. A. stayed a couple of months and then moved out as they were not getting along. A. moved in with her mother and D. later moved in with them. D. stayed with A. and her mother a couple of months and then moved in with a friend. He then found out that A. was pregnant with L. and moved into a residence which they shared with two of his friends.

At some point, A.’s father was required to live with them as he was under house arrest, and A. was responsible for supervising him. [ 10 ] D. was aware of A.’s parents’ drug use and criminal behaviour. He witnessed them using drugs. He witnessed them returning to their residence and producing stolen items which had been hidden in their clothes. A. asked her parents to steal items for her and would give them a shopping list of the things she wanted. D. bought stolen sunglasses off them. [ 11 ] After A. moved in with D.G., there was little contact between A. and the Ms.

D. and A. shared a residence from time to time with Ms. W. and Mr. L. at various locations in Kelowna. [ 12 ] D. now lives on a property where his mother’s residence is also located. He rents a bedroom in a house and shares that room with L. A. has a studio apartment. Her parents live with her from time to time. [ 13 ] Ms. W. and Mr. L. are drug addicts. They support their drug habit mostly by stealing. They have not been gainfully employed for years. Recently they were convicted of robbery. Their lifestyle has created chaotic living circumstances for them and anyone who chooses to live with them.

D. and A. were evicted from two residences due to the lifestyle and criminal behaviour of Ms. W. and Mr. L. [ 14 ] A. has been employed as a part time hostess at the International House of Pancakes for the past eight years. She is now enrolled in a business administration course. [ 15 ] The Ministry of Children and Families has had child protection concerns since April 2011, when A. was pregnant with L. They received reports about A.’s parents living with D. and A.; and the parents’ ongoing drug use and illegal activities. At one point A.’s younger sister S. was present. She had run away from her residence.

The social worker asked A.’s parents to leave and made it clear to A. that her mother could only see L. in a public place, and only if she had not been taking drugs. In September, A.’s parents were again living at her residence and under the influence of drugs. Reports were received that A. was overwhelmed with parenting L. and that her mother was caring for him. Similar reports were received in November and again A. was told that her parents could not live with her. There were also concerns about the cleanliness of the home and reports about cat excrement not being cleaned up.

[ 16 ] The Ministry got involved again on April 12, 2012 when D., A. and her parents were evicted from their residence on Gerstmar Road. They had lived at this house five days before being evicted. D.’s father found two spoons used for heating heroin, needles and liquid morphine when he helped them move. [ 17 ] After all of the warnings social workers had given about A.’s parents, and their continued presence in his and A.’s home, D. became concerned that L. would be removed by the Director. He was still working out of town regularly during this time. On April 14 he took L. to his mother D.’s house.

She cared for L. while D. worked out of town. D. supervised A.’s access to L. and on May 16, 2012, he filed his application for sole custody and guardianship of L. These actions satisfied the Ministry’s child protection concerns about L. [ 18 ] When D. was born on [DOB], a short term plan was developed to ensure he was adequately protected. A. was to live with R.P., the mother of her friend.

A.’s contact with D. had to be supervised by R. or one of her daughters. [ 19 ] On July 18, the social worker was informed by a maternity nurse who visited A. that A. was not interested in breast feeding and was not eating or drinking. R. was doing all of D.’s care. A. did not want to remain living at R.’s. D. returned to the hospital on July 25 due to a scalp infection. [ 20 ] There were reports from the hospital that A. was not spending a lot of time at the hospital with D. Staff had difficulties obtaining parental consents for medical treatment for D.

Social workers received information that A. was planning on removing D. from the hospital without permission. As a result of all of these issues, D. was removed from A.’s care on July 27 while he was still in hospital. He was discharged July 30 and placed with C.M., as she has been an approved foster parent in the past. [ 21 ] A temporary custody order for three months was made on September 19, 2012. [ 22 ] Both parents have regular visits with D. D. brings L. on visits so that he can bond with his brother. A.’s visits with D. are supervised by C.M. A.’s visits with L. are supervised by D.

THE CHILDREN [ 23 ] L. is now two years old. He is a healthy and happy boy who appears not to have any disabilities. D. will turn one in July. He is allergic to cigarettes and animals and develops a rash if he is exposed to cigarette smoke or animal hair on clothing. He also has eczema. APPLICATION FOR CONTINUING CUSTODY ORDER [ 24 ] The Director filed an application for a continuing custody order for D. on January 15, 2013. The basis for that application is two-fold.

First, the Director states that A. cannot protect D. from her parents, due to her inability to recognize the dangers they pose to D.; and second, the Director states that A. does not have the capacity to parent D. FAMILY LAW APPLICATIONS [ 25 ] D. makes essentially the same arguments regarding A.’s parenting capacity and judgment in his application for sole guardianship of L. [ 26 ] A. maintains that she does have the capacity to parent both children, and that her parents should be permitted some contact with their grandchildren. ISSUE 1: WAS D.

IN NEED OF PROTECTION AT THE TIME OF HIS REMOVAL? [ 27 ] Section 13(1) of the Child, Family and Community Service Act sets out when protection is needed. I find that the Director has proven that D. was in need of protection due to the risk of A. removing him from the hospital; the failure of A. or D. to provide parental consent for his ongoing medical treatment, and A.’s capacity to parent D. on her own. I also find that A.’s failure to recognize the risk her parents pose to D. put him at risk. [ 28 ] Section 41 (2) of the Act states: The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the director unless (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, (

b) a parent is unable or unwilling to resume custody of the child, or (

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect that it would be in the child’s best interest to be returned to the parent. [ 29 ]

Section 49 of the Act must also be considered, specifically the following subsections:

(4) The court must order that the child be placed in the continuing custody of the director if (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

b) a parent is unable or unwilling to resume custody of the child.

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of the director or a person other than the parent for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months. [ 30 ] The best interests of a child are discussed in section 4(1) of the Act : 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

b) the child's physical and emotional needs and level of development; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child's cultural, racial, linguistic and religious heritage; (

f) the child's views; (

g) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. ISSUE 2 IS THERE A SIGNIFICANT LIKELIHOOD THAT THE CIRCUMSTANCES THAT LED TO D.’S REMOVAL WILL IMPROVE WITHIN A REASONABLE PERIOD OF TIME? [ 31 ] A major factor in the Director’s decision to remove D., and D.’s decision to remove L., is the continued presence of A.’s parents in her life. Neither Mr. L. nor Ms. W. testified. Ms. W. is apparently serving a sentence for robbery; however, there was no explanation as to why Mr.

L. was not called as a witness. [ 32 ] A. described her childhood as “pretty normal” and happy, stating that the family had everything they wanted, but the police were often at her home. She stated that she got along well with her father, but she did not get on with her mother. A. maintained that she never witnessed any drug use by her parents although both of her parents have told her that they used heroin daily.

A. testified that she agreed with the social workers when they insisted that her parents could not be in her home if her children were there, however, her parents disregarded her wishes that they not visit her. A. stated that she planned to apply for a “no contact” order to prevent her parents from visiting her. However, she also maintained that she did not believe her children were at any risk in having access to her parents. [ 33 ] I do not accept A.’s evidence that she has never witnessed her parents using drugs.

It contradicts D.’s testimony concerning his observations, and is simply not credible, given the length of time she has lived with her mother and father. A.’s testimony generally, regarding her parents, is not credible. I find that she is wilfully blind to their shortcomings and complicit in their criminal activity. [ 34 ] Given the number of times A. has been warned about not having her parents live with her, and yet has refused to take any action to distance her from them, I find that there is no likelihood that she will be able to keep them at arm’s length in the future.

I find that the likelihood that one or both of her parents will resume cohabitation with A. is high. [ 35 ] The continued presence of A.’s parents in her life puts her children at risk. Their drug addiction and criminality attracts other

undesirable individuals into the home. I find as a fact that the evictions A. and D. faced were due to the activities of her parents. The parents continued use of intravenous drugs with the attendant drug paraphernalia such as needles directly puts the children at risk of either consuming drugs or coming into contact with needles. A. does not recognize the risk her parents pose to her children. I find there is little likelihood that she will ever recognize that risk.

IS THERE A SUBSTANTIAL LIKELIHOOD THAT A.’S ABILITY TO PARENT WILL IMPROVE WITHIN A REASONABLE TIME? [ 36 ] A.’s contact with D. has been supervised by C.M. and has mostly taken place in C.’s home, although the social worker did encourage A. to have some of her visits with D. in the community. A. has had three visits a week, although she could have more if she requested it. She has not asked for more visits. [ 37 ] C.M. knows A. very well, having parented her for six years. She described A.’s time with her family and stated that A. idealized her birth parents and failed to bond with her adoptive family. Ms.

M. testified that when the three girls came into her care, all three were chronic liars. The two younger girls changed, but A. did not. She agreed with counsel when he suggested that she is “deceitful and manipulative”. Ms. M. had concerns about L.’s care when D. and A. were still together, when D. was working out of town. [ 38 ] Since D. has been in Ms. M.’s care, A. always showed up for her visits, although sometimes she was late. Ms. M. described A.’s interest in D. as “minimal”. Ms.

M. stated that A. did not seem to understand D.’s needs, in that she would offer him a bottle when he was not offering any clues that he was hungry. She did not recognize if he was fussing because of a wet diaper. She described one incident when D. was a few months old and he swung his arm and “batted” at A. A. responded by aggressively swinging D. away from her. Ms. M. described other times when A. did not recognize that D. was unsafe when she left him on a sofa or unrestrained in a high chair. [ 39 ] Ms.

M. observed A. with both D. and L., and described that situation as “a struggle” for A. to meet both children’s needs. [ 40 ] A. was referred to Building Healthy Families in January 2013. Catherine Graham is the facilitator for Building Healthy Families. Ms. Graham testified and provided a discharge report regarding A.’s participation (Exhibit 7). A. attended the First Step program, which involves group sessions once a week and eight in-home sessions. She attended all of the group sessions, but only five of the eight home sessions. On one occasion when Ms.

Graham attended at A.’s residence, A.’s parents were there. Ms. Graham recognized them as they were on the news the night before, involved in a robbery. A. also forgot some of the home visits and on these occasions, when Ms. Graham attended, she noted her residence did not appear clean or tidy. When A. was ready for the visit, the house was clean, although it always smelled of cigarette smoke. [ 41 ] Ms. Graham determined that A. reached some of the goals of the First Step Parenting program. A. learned the definition of abuse and neglect and the effects they have on children.

She explored the family’s needs for community support. However Ms. Graham determined that A. had not completed “Positive Parenting Skills” by learning about the development stages of children. In particular, Ms. Graham discussed with A.’s current residence and how it was not appropriate for D. A. did not complete the “personal development” portion of the course by learning skills of establishing and maintaining healthy boundaries, or learning to identify stressful situations. Ms. Graham noted, in particular, that A. displayed reluctance to establish a healthy boundary with her parents. [ 42 ] Ms.

Graham noted that it was difficult to engage with A. during one on one sessions with her. A. did not seem to have any parenting topics she wanted to discuss and her answers to Ms. Graham’s questions were brief. [ 43 ] A. did bring D. to a few of the group sessions. D. cried every time he was brought to class. Ms. Graham’s observation was that while A. could respond to his basic needs, such as changing diapers or feeding, she did not appear to be attuned to his emotional needs. Ms. Graham’s opinion was that A. had difficulty comforting him when he was upset. Ms.

Graham’s opinion was that A. did not exhibit any parenting strengths with D. [ 44 ] Other witnesses testified about A.’s ability to keep a clean and safe home for her children. A.’s current boyfriend K.K. and her two friends S.N. and C.J. testified that on their visits to A.’s home, it was more or less clean, but cluttered. It is not known whether A. knew her friends would be visiting before they came to her home. D. testified that when he returned from his time working out town, the residence was “gross”.

A. refused to clean up dog and cat excrement on the floor when she was pregnant with D. and D. was concerned that L. would eat it. He offered to bring home cleaning gloves for her, but she still refused to clean it up. He testified (as did other witnesses) that the residences reeked of cat urine. S.G., D.’s father helped the family move from at least one residence. He described one residence as a “disgusting mess”, and had to take three pickup loads of garbage to the dump. He testified that the smell of cat excrement was overwhelming, and once it was all cleaned up, it filled half a garbage bag. When Mr.

G. moved the family out of a residence on Gerstmar, he found a bottle of liquid morphine on the floor, over fifty syringes and a number of “heroin” spoons. [ 45 ] A. was referred for a parenting capacity assessment with Dr. Allan Posthuma. Dr. Posthuma is a registered psychologist and was qualified as an expert witness in the area of parental capacity. He has been operating in this field since 1976. [ 46 ] Dr. Posthuma and Lavonya Mitchell made an unscheduled visit to A.’s residence on April 15.

Her home was dirty and messy with piles of dirty dishes on the counter and coffee table, dog food on the floor and clothes strewn about. A.’s explanation for the mess was that she was doing a spring cleaning. [ 47 ] Dr. Posthuma interviewed A. for five hours, administered nine psychological tests and spent 3¼ hours observing her with her children. He also interviewed D., C. and B.M., Catherine Graham, and Lavonya Mitchell, the social worker. He briefly visited A.’s home. Dr. Posthuma’s report (exhibit 5) sets forth his observations and conclusions. [ 48 ] Dr.

Posthuma concluded that A. meets the diagnostic criteria of an Antisocial Personality Disorder. He reached this conclusion despite “normal” results from most of the psychological tests. Dr. Posthuma stated the following at page 10 of his report: This lack of correlation between the test results and the collaborating information is, in itself, clinically significant. That is, the test results did provide Ms. M. an opportunity to describe what the normal fears, weaknesses, and other problems that would be associated

with her background as well as any new strengths or potential that has not been obvious to those who have been involved with her in the past. By producing a sanitized version of her thoughts and feelings inconsistent of her by what would be predicted from that background is, in many ways, confirms her motivation to deceive and manipulate the situation in which she finds herself.

This in turn is not only consistent with her background, but an indication of her willingness to acknowledge what has contributed to her current situation and the unlikelihood of her working with various professionals in order to address the problems in her becoming an effective parent. These characteristics, which she takes pride in attributing to her birth parents, are indicative of an anti-social personality disorder. [ 49 ] Dr. Posthuma addressed the issue of whether, in his opinion, A. could develop parenting skills over time: Given that Ms.

M. “knows” the appropriate feeding, comforting, and other childcare actions, the concern is her ability to integrate this knowledge into effective parenting practices. This assessment sees little evidence of her ability to integrate this information. The question is whether Ms. M. would be able to do this given more time or different strategies of teaching her these skills.

This examiner would see this as unlikely given her history with her biological parents, her behaviour in the M. home, the history of what has occurred since the children have been taken into care and her lack of candidness in this assessment, particularly in the psychological testing. Her statement to the examiner that there is no valid reason for these children to be taken into care and the information upon which the Ministry is relying is a result of lies and deception from the children’s father, his parents and her former supervisor (Robin), makes it unlikely that she is motivated to change.

That is, she does not see any shortcomings in either herself, or for that matter, her biological parents that would interfere with the welfare of these children. Her position is not an indication of lack of knowledge but of basically anti-social personality characteristics of lack of empathy and that relationships with others are to exploit and manipulate for narcissistic purposes. [ 50 ] Dr. Posthuma testified that A. has some characteristics of an anti social personality disorder. In his opinion, she frequently lies, manipulates others, does not trust others and has a lack of remorse when she hurts someone.

He agreed that she has been able to hold down a part time job and she does not have a criminal record, two characteristics that run counter to the general attributes of an anti social personality. [ 51 ] Anti social personality disorders are notoriously difficult to treat according to Dr. Posthuma. [ 52 ] When Dr. Posthuma observed A. with her children, he noted a lack of emotional warmth and spontaneity. He observed her read a book with the children, but observed she did not try and determine if the children were at all interested in the book, or try to make it enjoyable for them.

He observed her changing D.’s diaper, without determining whether or not it actually needed to be changed. Dr. Posthuma described A. as having the skill sets, but those skills were not responsive to the situation, and most importantly, in his opinion, those parenting skills were not accompanied by any warmth towards her children. [ 53 ] Dr.

Posthuma concluded that it was difficult to assess whether A. was capable of making appropriate decisions to protect her children and keep them safe, given her lack of candid responses in the psychological testing. [ 54 ] His ultimate conclusion was that it was unlikely that A. was capable of developing the necessary attributes to reliably and safely parent her children.

He saw the major problem for A. in developing appropriate parenting skills is her lack of motivation and her belief that there is nothing lacking in her parenting abilities. [ 55 ] In his discussions with A., she indicated that she thought she was a good parent, and that there was nothing wrong with her lifestyle choices. [ 56 ] A. expressed this same opinion of her parenting during her testimony. She also testified that she feels she is attached to both of her children.

She feels that her children are bonded with her, but because of D.’s young age when he was removed, his attachment with her is less than L.’s. [ 57 ] A. testified that she now has a relationship with K.K. (aged 22) and they have had discussions about him buying a house eventually. Under cross examination, she stated that her present bachelor suite is suitable for both of her children. [ 58 ] A. signed a family plan on March 5, 2013. (Exhibit 11) in which she agreed on a number of goals she would work towards, and the steps she would take to achieve those goals.

In that family plan she agreed not to allow her biological parents to attend her home or leave their belongings in home. She agreed to complete the First Step Parenting Program, and have D. at the sessions and demonstrate what she learned. She agreed to work with C.M. to be more attuned to D.’s needs. She agreed to look for a residence that has two bedrooms. She agreed to find full time employment. [ 59 ] When questioned about her progress in achieving these goals, A. testified that while she signed the family plan, she did not read it.

I do not accept her evidence on this point. [ 60 ] While there is some evidence provided by A.’s friends concerning her parenting abilities, I find that evidence is not so compelling as to counter the evidence provided by the witnesses called by the Director and D. I accept Dr. Posthuma’s diagnosis of A. and his conclusions about her ability to parent. I accept the evidence provided by Ms. Graham, D., Mrs. M. and Ms. Mitchell. Having considered all of the evidence, I conclude that there is no substantial likelihood that A.’s ability to parent will improve within a reasonable period of time.

WHICH ORDER IS IN D.’S BEST INTERESTS AND CONSISTENT WITH THE GUIDING PRINCIPLES OF THE ACT AS SET OUT IN

SECTION 2?

[ 61 ] While the family is the preferred environment for the care and upbringing of D., I find that A. cannot protect him or provide a safe and nurturing environment for him. D. has acknowledged that he cannot provide a home for D. Decisions regarding D. must be made in a timely manner. The plan of care for D. is that he is to be adopted by the M.s, who have been caring for him continuously since his removal. They have facilitated visits with D. and L. and encouraged those relationships.

This plan meets D.’s needs and is in his best interest. [ 62 ] D. is placed in the Continuing Custody of the Director pursuant to section 49(5) of the Child Family and Community Service Act. WHICH ORDER UNDER THE FAMILY LAW ACT IS IN L.’S BEST INTEREST? [ 63 ]

Section 37 of the Family Law Act directs that the best interests of L. are the only consideration in making an order for guardianship, parenting arrangements or contact. Section 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. [ 64 ] L. was cared for during his first year of life, primarily by A. As mentioned previously in this judgment, there were concerns about A.’s ability to parent, her ability to ensure that L. lived in a clean and safe residence, and her inability to protect L. from her parents. D. has had care of L. for the second year of his life.

He has parented L. with the assistance of his mother. [ 65 ] D. acknowledged daily use of marijuana. He explained that he uses this drug only after L. has gone to sleep and never uses it to the point where it interferes with his ability to care for L. [ 66 ] D. has shown that he is able to put L.’s best interests first in his actions of removing L. from A.’s home when he was unsafe due to the presence of her parents. He has provided L. with a safe and stable residence and consistent care with the assistance of his mother.

He has facilitated L.’s contact with his brother D. by visiting D. regularly with L. and he has maintained a positive and respectful relationship with the M.s to allow this relationship to continue. While in D.’s care, L. has contact with his paternal grandparents and their partners and his uncle. [ 67 ] Importantly, D. has maintained a positive relationship with A. and supported her continued contact with L. By all accounts, D. has acted respectfully towards A. in working out a plan whereby she can see L.

These actions of D. demonstrate a maturity and appreciation for what is in L.’s best interest. [ 68 ] I do not find that family violence is an issue in these circumstances. Although there was an incident of violence between A.’s mother and D.’s brother, the parties did not participate in this unfortunate episode. There is no evidence to suggest that D.’s brother, apart from this one altercation with A.’s mother, is a violent person or has come into frequent contact with the criminal justice system, unlike A.’s mother.

[ 69 ] Given my findings regarding A.’s parenting capacity, it is my view that L.’s best interests are served by remaining in the full time care of D., and A. having parenting time with L., supervised by D. or another responsible adult, approved of by D. D. shall have sole parenting responsibilities under

section 41 of the Act, with the exception that, pursuant to section 41(1) (j), A. may obtain information concerning L.’s health and education from third parties. [ 70 ] A.’s annual income for child support purposes is $15,910. She is to pay child support of $113 per month for L., commencing June 1, 2013 and the first of each month thereafter. If she obtains additional employment or full time employment, she is to provide D. with her income details immediately and child support is to be adjusted accordingly. ________________________________ The Honourable Judge E.M. Burdett