C.L.T. v. S.L.R. Date:, 2014 BCPC 131

Citation: C.L.T. v. S.L.R. Date: 20140611 2014 BCPC 0131 File No: 9644 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.L.T. APPLICANT AND: S.L.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Applicant: Ms. M. Payne

Counsel for the Respondent: Mr. R. Evans Place of Hearing: Kamloops , B.C. Dates of Hearing: March 26, 27, May 15 and 16, 2014 Date of Judgment: June 11, 2014 INTRODUCTION [ 1 ] C.L.T. and S.L.R. have three children, J.J.T.(1) (age 12), J.J.T.(2) (age 9) and J.M.T. (age 7). C.L.T. and S.L.R. have been separated since 2008. They have been to court many times in the past six years.

There have been 14 court orders made during that time dealing primarily with, in the words of the former legislation, S.L.R.’s access to her children and whether that should be supervised or unsupervised. [ 2 ] C.L.T. has had interim sole custody of the children since January 9, 2008. The children have resided with him since that time. The amount and quality of time S.L.R. has spent with her children has varied significantly over the years since the parties separated. [ 3 ] C.L.T. is concerned about S.L.R.’s use of substances, her mental health, her lack of stability and her social circle.

He seeks interim sole guardianship, parental responsibilities and parenting time with the children. He also seeks an order that S.L.R. have restricted and supervised contact with the children. Finally, C.L.T. seeks certain orders to ensure the children are safe while spending time with S.L.R. [ 4 ] S.L.R. maintains that she does not have substance abuse or mental health issues that would interfere with her ability to parent and wants to have a more active role with her children. S.L.R. seeks to be a guardian of her children with limited parental responsibilities.

She also seeks regular unsupervised parenting time with her children. ISSUES [ 5 ] The court file has so many applications and orders that I have not been able to identify which specific applications are “live” and which have been dealt with. Fortunately, the issues were clearly and well presented by the parties and their counsel. As requested by the parties, I will deal with the following issues on the merits: 1. Should C.L.T. retain interim sole guardianship of the children or should S.L.R. be declared a guardian? 2.

If S.L.R. is declared to be a guardian of her children, what parental responsibilities should she be awarded? 3. What parenting or contact time should S.L.R. have with her children, should that time be supervised or unsupervised and should any further orders be made to ensure the children are safe when spending time with S.L.R.? BACKGROUND [ 6 ] A great deal of background information is contained in written Reasons for Judgment issued by the Honourable Judge Frame on March 9, 2012.

I will not repeat that background but note that I heard extensive evidence about events since Judge Frame released her decision, including evidence from a social worker with the Ministry of Children and Family Development (the “Ministry”) named Lauren Hoffman. I also heard evidence from the children’s paternal grandfather, M.T. Neither Ms. Hoffman nor C.L.T. testified before Judge Frame. [ 7 ] I will refer to the key evidence and incorporate my key findings of fact in my analysis of the issues. ANALYSIS Best Interests of the Children [ 8 ] All of the issues before me fall under

Part 4 of the Family Law Act , SBC 2011, c. 25 (the “ FLA ”) and, under s. 37 of the FLA , must be determined based only on what is in the best interests of the children. [ 9 ] Because of its exclusive and conclusive importance to my decision making, I set out s. 37 in full below: Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Guardianship of the Children [ 10 ] C.L.T. and S.L.R. separated on January 8, 2008. There was a physical altercation that day which resulted in S.L.R. being charged with assaulting J.J.T.(1). The following day C.L.T. obtained an interim ex parte order under the former family law legislation for sole “custody” of the children.

On January 30, 2008, an interim consent order under the former legislation gave S.L.R. supervised “access” to the children. Since then, orders have swung like a pendulum between granting S.L.R. supervised and unsupervised access but S.L.R. has never been granted custody or guardianship of her children. [ 11 ] The concepts of custody, guardianship and access under the former legislation have been replaced in the FLA by an expanded concept of guardianship coupled with assignments of parental responsibilities and parenting time to guardians and contact with children to non-guardians.

Under the transition provisions in the FLA , orders granting custody or guardianship under the former legislation provide a party with guardianship, parental responsibilities and parenting time with a child.

Orders granting access to, but not custody or guardianship of, a child under the former legislation provide a party with contact with a child. (See s. 251 of the FLA .) [ 12 ] The upshot is that C.L.T. currently has interim sole guardianship, parental responsibilities and parenting time with the children. [ 13 ] As for S.L.R., the last order was an interim consent order made at a Family Case Conference (“FCC”) on October 18, 2013. The FCC order granted S.L.R. contact with the children on Fridays to be supervised by Interior Community Services (“ICS”).

The FCC order indicates that if S.L.R. “misses three (3) consecutive visits this order will lapse until further order of this court is made.” Unfortunately, no visits at ICS occurred so S.L.R. currently has no order allowing her to have contact with her children. [ 14 ] S.L.R. has had only one personal visit with the children since last October. That was on Family Day in February when C.L.T., S.L.R. and the children spent the day together. S.L.R. also speaks fairly regularly with the children by telephone. [ 15 ] There is no doubt in my mind that S.L.R. loves her children and wants the very best for them.

There is also no doubt in my mind that S.L.R. has the potential to be a guardian and make good decisions for her children. Unfortunately, however, after considering each of the factors set out in s. 37(2) of the FLA , I have determined that it is in the best interests of the children for C.L.T. to remain their interim sole guardian. My reasons are: 1. C.L.T. has been exclusively responsible for making parenting decisions for the children for the last six years and has done a good job of it. For example, C.L.T. moved J.J.T.(1) to a new school last year.

J.J.T.(1) receives superior support for his autism at his new school and his behaviours and attitudes have improved tremendously. J.J.T.(2) and J.M.T. are also reported to be doing well. Social worker Hoffman has had extensive contact with C.L.T., S.L.R., the children and collaterals and believes that C.L.T. is a capable parent. Even S.L.R. testified that C.L.T. has a “fine ability” to make decisions for the children. 2. S.L.R. has substance abuse issues and acknowledges herself to be an “addict”. S.L.R. has struggled over the years with an addiction to cocaine, especially crack cocaine.

To her credit, S.L.R.’s attitude towards cocaine has changed over the years and she now realizes that she simply cannot consume any amount of cocaine, even “recreational” amounts. Social worker Hoffman confirmed that S.L.R.

recently tested negative for cocaine for the period from November 2013 to January 2014. Nevertheless, S.L.R. continues to drink sherry and smoke marijuana “occasionally”. It is hard to know how often and how much S.L.R. is drinking and using marijuana but it is clear that her drinking is causing her problems. For example, S.L.R. was in the “drunk tank” on May 12, 2014 and several times last summer. She also did not arrive for trial on May 15, 2014. Though she claimed to have thought the trial was resuming in June, I have my doubts. 3. S.L.R. does not have stable housing.

She does not have a place of her own and currently lives with her father, H.R. S.L.R. describes her father as an alcoholic and past orders have prohibited him from having contact with the children. S.L.R. does not object to a further prohibition being imposed regarding her father. S.L.R. testified that she has been promised a two bedroom apartment of her own in the same building where she resides with her father. S.L.R. acknowledges, however, that there are issues to be resolved before she has her own place. I am not confident that S.L.R. will have her own apartment any time soon. 4.

Since the separation, S.L.R. has not maintained stable interpersonal relationships. She associates with homeless people and has been involved with men who have subjected her to domestic violence. Of course, homelessness is a significant social issue. I do not view the homeless as “bad” people and I applaud community and individual efforts to assist this less fortunate subset of our society. There is, however, a transient quality to life on the street and S.L.R.’s affinity for the street environment does not square well with the children’s need for stability.

I am also concerned that S.L.R. is anxious to lift no contact provisions that prohibit her from having contact with her “best friend”, J.J., after J.J. was convicted of assaulting her. 5. S.L.R. is well educated and bright but I have concerns about her mental health. S.L.R. has engaged in bizarre behaviours and maintains beliefs indicative of disordered thinking or paranoia. For example, S.L.R. was recently in C.L.T.’s backyard late at night to visit her cat.

S.L.R. has also made recent statements that J.J.T.(1) was sick because his grandparents had poisoned him, that J.J.T.(1) was acting out because he had been given drugs by other students and that C.L.T. was “tracking” her phone. S.L.R. has indicated a willingness to attend trauma counselling for her own history of childhood abuse but she has generally been reluctant to access mental health services. She prefers to deal with her issues herself though this is, in my view, not the best course of action for S.L.R. 6. In spite of her education and experience, S.L.R. has been unemployed for two years.

S.L.R. blames the Ministry for her last job loss. She says the Ministry inappropriately reported on a positive drug test to her employer even though her employer was an agency that provided services to the Ministry. S.L.R. believes she has been “blackballed”. S.L.R. testified that she would like to return to school and obtain her Masters and then teach first year psychology.

In my view, S.L.R. is unlikely to further her education or obtain employment in line with her ability until she deals with her substance abuse and mental health issues. [ 16 ] Though I have concluded that S.L.R. has some significant personal issues, I also recognize that, by abstaining from the consumption of cocaine, she has made strides in the right direction. Because of these strides, I see potential in S.L.R. to be a good guardian and I do not dismiss her guardianship application.

Rather, I seize myself of her application and adjourn it. [ 17 ] To assist S.L.R. going forward, I can tell her that she will have to satisfy me that she can responsibly exercise parental responsibilities over her children before I will cancel the interim sole guardianship order in favour of C.L.T. and recognize her guardianship under s. 39 of the FLA . [ 18 ] Without ordering S.L.R. to take any specific steps, I can simply say that it would be helpful if S.L.R.: 1. significantly reduced or eliminated her use of alcohol and marijuana.

A good guardian has her wits about her and does not spend time in the “drunk tank”. S.L.R. should consider taking further hair strand tests to demonstrate that I need not be concerned about her substance use; 2. followed through with trauma and mental health counselling for a prolonged period of time. A supportive report from a mental health professional who has worked closely with S.L.R. would go a long way to establishing that S.L.R. would be a good guardian; 3. obtained stable housing.

I appreciate that S.L.R. is currently on income assistance and I can reassure her that a lack of financial resources will not be held against her. The point here is simply that a more stable housing situation will help to demonstrate that S.L.R. is leading a more stable life and will, therefore, be in a better position to be a responsible guardian; and 4. eliminated her contact with men who are violent towards her. Like all women, S.L.R. deserves to be treated with the utmost respect, especially by her partners and associates.

It will be difficult for S.L.R. to take care of her children if she struggles to take care of herself. [ 19 ] If S.L.R. takes these steps, she will be able to live a safer, happier and more fulfilling life. The chances are significantly higher that she will also be able to establish that she can be a parent and guardian her children can count on. Parental Responsibilities, Parenting Time and Contact with the Children [ 20 ] Under s. 40 of the FLA , only guardians can exercise parental responsibilities over and enjoy parenting time with children.

Under s. 59 of the FLA , the court can grant contact with a child to a person who is not a guardian. Because I have continued C.L.T.’s interim sole guardianship of the children, he has exclusive parental responsibilities over and parenting time with the children on an interim basis. Regarding S.L.R., I am limited to considering whether to grant her contact with her children and on what terms. The only consideration is what is in the best interests of the children. [ 21 ] It goes without saying that it is in the best interest of every child to have a close, loving and nurturing relationship with his or her mother.

For a variety of reasons, J.J.T.(1), J.J.T.(2) and J.M.T. have not had the benefit of that type of relationship with S.L.R. for a significant period of time. [ 22 ] In the past, Judge Frame found that C.L.T. was manipulative and partly to blame. The reality is that S.L.R. must also bear significant responsibility, for example, by declining or not utilizing support services offered by the Ministry, including funded supervision services offered by ICS. Further, the parties have been unable to identify and agree to a suitable supervisor other than C.L.T. himself.

Understandably, C.L.T. has been reluctant to supervise S.L.R.’s contact with the children because he does not want to be seen as

the “bad guy” if he makes a supervision decision to end a visit between S.L.R. and the children. Unfortunately, neither C.L.T. nor S.L.R. can afford to pay for an independent supervisor and the Ministry is unable to fund supervision as a long term solution. [ 23 ] In trying to find a solution, I have considered the “Custody and Access Report” dated September 25, 2012 prepared by a Family Justice Counsellor named Pam Cripps. Ms. Cripps interviewed the children, the parties and others and was well aware of the troubled history between C.L.T. and S.L.R.

The report indicates that the children want to spend time with their mother but, unfortunately, so much has changed since Ms. Cripps’ wrote her report that the report is otherwise of limited value to me. [ 24 ] The history of the file clearly demonstrates that there have been significant problems with both supervised and unsupervised contact between S.L.R. and her children. The conundrum is how to craft an order that allows S.L.R. to spend meaningful time with her children while making sure that the children are safe and well looked after in her care.

If I limit S.L.R. to supervised contact with her children but suitable supervision arrangements cannot be made, the children will be denied time with their mother. If I grant significant unsupervised contact to S.L.R., especially with all three children at once, she may become overwhelmed. S.L.R. has recognized this risk and the further risk of relapse if she feels overwhelmed.

Clearly, granting S.L.R. significant unsupervised time with her children would be contrary to their best interests - at least at this point in time. [ 25 ] C.L.T. acknowledges that S.L.R. is generally good with the children and would like the children to have a good relationship with her.

Further, S.L.R. has made sufficient progress with her cocaine addiction that, in my view, she can safely spend some unsupervised time with her children. [ 26 ] Considering all of the circumstances, I have come to the conclusion that the best interests of the children will be served by giving S.L.R. a combination of supervised and unsupervised contact with her children under very stringent conditions. This will ensure that the children have a guaranteed minimum amount of contact with their mother and provide an opportunity for S.L.R. to have an increased amount of time with them in a safe environment.

I will set out the particulars below. CONCLUSION [ 27 ] I make the following order regarding the issues of guardianship, parental responsibilities, parenting time and contact: 1. All previous orders are cancelled. 2. C.L.T. remains the sole guardian of the children on an interim basis. 3. C.L.T. has exclusive parental responsibilities over and parenting time with the children on an interim basis. 4. S.L.R.’s application for guardianship, parental responsibilities and parenting time is adjourned. I am seized of the application. 5.

S.L.R. will have unsupervised individual contact with one of J.J.T.(1), J.J.T.(2) or J.M.T. on Mondays, Wednesdays and Fridays from after school, or 2:30 pm on non-school days, until 5:30 pm or until C.L.T. returns home from work on days he is working. If the parties cannot agree on which child S.L.R. has contact with on which days, C.L.T. will decide. 6. S.L.R. is responsible for picking up the children from their school or, on non-school days, from C.L.T.’s or his parents’ home. S.L.R. is responsible for dropping the children off at C.L.T.’s home following her unsupervised contact with the children. 7.

S.L.R. is to spend her unsupervised contact time with the children in a public place or, with C.L.T.’s permission, at C.L.T.’s home. If S.L.R. exercises her unsupervised contact time with the children at C.L.T.’s home, she may not allow any other person into C.L.T.’s home except with C.L.T.’s prior written approval. 8. Commencing June 22, 2014, S.L.R. will have supervised contact with the children on alternate Sundays between 1:00 and 5:00 pm and at any other time as the parties may agree. 9.

The parties will make best efforts to allow S.L.R. to have reasonable supervised contact with the children on statutory holidays and special occasions. 10. S.L.R.’s supervised contact with the children may be supervised by C.L.T. or any other adult agreeable to both parties. 11. If C.L.T. is supervising S.L.R.’s supervised contact with the children and determines that it is in the best interests of the children for the supervised contact to end early, S.L.R. must leave immediately. 12.

If C.L.T. is unwilling to supervise S.L.R.’s supervised contact with the children and the parties cannot agree on another supervisor, there will be no supervised contact. 13. S.L.R. may have unlimited phone contact with the children at any time when C.L.T. is home from work until 7:30 pm. 14. S.L.R. will not consume, possess or be under the influence of alcohol or drugs during her contact with the children, except any drug prescribed for her by a licenced physician. 15. S.L.R. will not allow the children to have contact with H.R. or J.J. during her contact with the children. 16.

S.L.R. will not allow the children to have contact with any person under the influence of alcohol or non-prescription drugs during her contact with the children. 17. On giving S.L.R. one month’s written notice, C.L.T. can cancel S.L.R.’s unsupervised and supervised contact with the children for four weeks each year but no more than two of the four weeks may be consecutive.

18. C.L.T. may apply for passports for the children and he may travel with the children as he chooses without S.L.R.’s consent. 19. C.L.T. must provide S.L.R. with two weeks’ written notice before traveling with the children more than 250 km from Kamloops. 20. C.L.T. will keep S.L.R. informed of any significant matters affecting the children’s health and education and C.L.T. will provide S.L.R. with copies of the children’s report cards within two weeks of his receipt of them. 21.

The parties will attend a Family Case Conference before me within approximately six months’ time with the date to be fixed by the Judicial Case Manager. [ 28 ] I sincerely hope that S.L.R. continues to work on herself and establishes a good working relationship with C.L.T. I also sincerely hope that C.L.T. works to support and facilitate S.L.R.’s return to having a more meaningful role in the lives of the children. [ 29 ] If the parties are of the view that I have overlooked an important term or that I have imposed an unworkable term, they may come before me to seek further direction. [ 30 ] Ms.

Payne will prepare the order. _________________________ L.S. Marchand Provincial Court Judge