N.F. v. H.L.S. Date:, 1999 BCCA 398

Citation: N.F. v. H.L.S. Date: 19990614 1999 BCCA 398 Docket: CA V03325 Registry: Victoria COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT : Before: THE HONOURABLE MR. JUSTICE ESSON June 14, 1999 THE HONOURABLE MADAM JUSTICE RYAN THE HONOURABLE MR. JUSTICE MACKENZIE Victoria, B.C. BETWEEN: N.F. APPELLANT (RESPONDENT) AND: H.L.S. RESPONDENT (APPELLANT) BAN ON PUBLICATION

BY CONSENT, AN ORDER HAS BEEN MADE PROHIBITING PUBLICATION OF THE IDENTITY OF THE CHILD IN THIS CASE. Trudi L. Brown, Q.C. appearing for the Appellant Douglas H. Christie appearing for the Respondent 1 ESSON, J.A.: I will refer to the parties to this proceeding as "the grandmother" and "the mother" and I will refer to the child, who was very much the subject of the proceeding, as "the child". 2 The grandmother brought application in the Provincial Court for access to the child, after the mother took the position that she would not permit the child to see the grandmother.

The mother initially based that position on a number of grounds relating to the lifestyle of the grandmother but the most significant of those, and the only one which has been relied on in this court, was that the grandmother carries on in her home what is referred to as an "escort service". It seems to be common ground that the true nature of the business is prostitution, carried on in part of the home. 3 The Provincial Court judge granted access. She gave elaborate reasons for that decision.

Essentially, her reasoning was that the mother had not established that visits by the child to the grandmother were not in the child's best interest. Great emphasis was given to the grandmother's affection for the child and the child's pleasure in the grandmother's company. The mother's concerns were held to have no basis in reason and to be therefore irrational. In the view of the Provincial Court judge, a rational objection could be based only upon proof, in court, that physical or emotional harm would be caused to the child.

A number of references were made to the failure of the mother to adduce expert evidence on that issue. 4 One of the subsidiary grounds relied on by the mother, and apparently only at the level of the trial court, was that of the grandmother being a smoker. In order to illustrate the approach that the Provincial Court judge took throughout her reasons, I will quote her language in dealing with that issue: ... There is no evidence before this court that [the child's] health is adversely affected by cigarette smoke, and there is no evidence that her mental health is adversely affected by cigarette smoke.

I cannot find that the fact that [the grandmother] smokes cigarettes would be harmful to [the child]. 5 On appeal to the Supreme Court, the decision was reversed. The decision is that of Mr. Justice Owen-Flood, who gave extensive reasons for allowing the appeal. The decision is apparently not reported but can be found on QL at 1998 BCJ 1739 . I will say now that I agree in substance with that decision. 6 The appeal court judge found three errors.

The first was that the Provincial Court judge erred in law: ... in that she examined the best interests of the child solely, exclusively, and only in terms of the child's rights as an individual to have access to her grandmother without considering and ascertaining what weight, if any, to give to an additional pertinent factor, namely, the interests of the custodial parent in bringing up the child and in making moral decisions for her child. ...

The second error he found was: ... in holding, as she did, that there was an onus upon the mother to establish that if, because of access to the grandmother, the child should become aware of her grandmother's occupation, this would produce physical or emotional harm to the child.

It goes without saying that there is no such onus on the custodial parent. The onus on the custodial parent is simply to show not necessarily harm but, rather, that the best interests of the child would not be served by such access. The appeal court judge said the third error was: ... in failing to consider at all the moral aspect of the appellant mother's objection to the grandmother's access to the child because of the grandmother's occupation.

The learned trial judge, in considering the mother's objection, looked at it solely and only from the point of view of harm to the child of a physical or emotional nature. 7 In his reasons for judgment, Mr. Justice Owen-Flood extensively canvassed the authorities. I do not propose to refer to most of them. One decision of the Supreme Court of Canada on which he placed particular emphasis is B.(R.) v. Children's Aid Society of Metropolitan Toronto (1995), 1995 CanLII 115 (SCC) , 9 R.F.L. (4th) 157 (S.C.C.) . One of the passages quoted in his reasons was this passage in the reasons of Mr.

Justice La Forest at p.373: As children are unable to assert these, our society presumes that parents will exercise their freedom of choice in a manner that does not offend the rights of their children. If one considers the multitude of decisions parents make daily, it is clear that in practice, state interference in order to balance the rights of parents and children will arise only in exceptional cases.

In fact, we must accept that parents can, at times, make decisions contrary to their children's wishes -- and rights -- as long as they do not exceed the threshold dictated by public policy, in its broad conception . For instance, it would be difficult to deny that a parent can dictate to his or her child the place where he or she will live, or which school he or she will attend. However, the state can properly intervene in situations where parental conduct falls below the socially acceptable threshold.

But in doing so, the state is limiting the constitutional rights of parents rather than vindicating the constitutional rights of children... . (Emphasis added) That case, of course, was dealing with state interference with parents in respect of parenting. But, nevertheless, in my view it has substantial application. It would be equally unacceptable for there to be unrestrained judicial interference with the rights of parents to decide what is in the best interests of their children. 8 Another authority which was cited is the decision of Mr. Justice Brenner of the Supreme Court of British Columbia in Chapman v.

Chapman , 1993 CanLII 2598 (BC SC) , [1993] B.C.J. No. 316 DRS 93 -12683, Vancouver Registry 92-3512. That case is very much on point in its facts. It involved the application of a grandmother for access to a 4 year-old child. The daughter-in-law of the grandmother, who was the custodial parent, refused access because of problems which had taken place in the past involving a former spouse of the grandmother, even though that spouse had separated from the grandmother who was then living with another man.

I refer to the case for this summation of the relevant principles, which appears in paragraph 24: 1.The onus is on the applicant to demonstrate that the proposed access is in the child's best interests. 2.The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent's decision and should do so only if satisfied that it is in the child's best interests. 3.It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non- parent.

While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child's best interests will rarely, if ever, be well served by granting access. The third paragraph in that analysis is I think primarily directed at the particular fact situation in that case and perhaps has somewhat less application to the different facts of this case, where the parent's refusal does not arise from a history of conflict and hostility but, rather, from concern about moral hazards.

It nevertheless states a principle which must be kept in mind in dealing with issues of this kind. The first two points made in that analysis I would endorse as being applicable to all cases of this kind.

9 For the sake of completeness, because we were told by counsel that there were no cases on point in this Province, I will refer to Milne v. Milne (1985), 1985 CanLII 786 (BC CA) , 44 R.F.L. (2d) 241 , a decision of this Court. Again, that case involved an application for access by a grandmother. In the two lower courts access was denied and that decision was upheld in this Court. The judgment is a short one but is significant as applying essentially the principles to which I have referred. 10 In my view, the most significant error of the Provincial Court was in respect of onus.

In substance, she put upon the mother the onus of proving that access was against the child's best interests and had no regard to the onus upon the applicant to demonstrate that the proposed access was in the child's best interests. Here, as would be the case in many instances, it is very difficult to prove that the access would in fact prove to be against the child's best interests. 11 The substance of the matter, which was essentially ignored by the Provincial Court judge, is that the mother's concerns were with regard to the risk of harm to her child.

Rather than having regard to that the judge took what, in my respectful view, was a fallacious course of emphasizing the absence of proven harm. 12 In my view, Mr. Justice Owen-Flood reached the right result, substantially for the right reasons. I would dismiss the appeal. 13 RYAN, J.A.: I agree. 14 MACKENZIE, J.A.: I agree. (Submissions by counsel) 15 ESSON, J.A.: There will be an order banning publication of the name of the child or of publishing anything that would identify the name of the child. 16 The respondent has cross-appealed on the question of costs.

In the court below the appeal court judge made no order as to costs. While that is an order which I might not have made, and one or more of my colleagues might not have made, it is nevertheless a discretionary matter and we are all of the view that we should not interfere with it. It follows that the cross-appeal is dismissed. 17 The appeal is dismissed. Costs follow the event. "The Honourable Mr. Justice Esson"