D. v. D. Date:, 2013 BCPC 135

Citation: D. v. D. Date: 20130502 2013 BCPC 0135 File No: F091872 Registry: Sechelt 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 CHILDREN: C.W.H.D and C.T.O.D. File No: F101966 Registry: Sechelt AND IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: T.D. AND: E.D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Counsel for the Director: A. L. Counsel for T.D.: D.O. Counsel for E.D.: J.F. Appearing on her own behalf: H.J.J.

Appearing on her own behalf: P.R. Appearing on her own behalf: A.H. Appearing on his own behalf: Dr. P.C. Place of Hearing: Sechelt , B.C. Date of Judgment: May 2, 2013 [ 1 ] THE COURT: C.W.H.D. and C.T.O.D. are the seven- and five-year-old children of T. and E. D. On November 10, 2010, by consent, Mr. D. was granted sole custody of the children, Mr. D. and Ms. D. were granted joint guardianship, and Ms. D. was granted supervised access, the access to be supervised by either Mr. D. or his mother, H.J. [ 2 ] Mr. D. and Ms. D. are the guardians of the children.

See s. 251 of the Family Law Act , S.B.C. 2011, c. 25. [ 3 ] On November 15, 2011, the children were removed by the Ministry of Children and Family Development. [ 4 ] On November 22, 2011, the children were ordered to remain in the interim custody of the Director. On this date, Ms. D. filed an application to cancel the November 10, 2010, order, seeking that she and her mother, Ms. R., be granted joint custody and joint guardianship. [ 5 ] On November 24, 2011, the Director filed an application seeking a continuing custody order. [ 6 ] On June 12, 2012, both Ms. J. and Ms.

R. filed applications, each seeking sole custody of the children. [ 7 ] On December 4, 2012, Mr. D's sister, A.H., filed an application seeking sole custody. [ 8 ] The trial on all of these applications commenced January 8, 2013, and concluded April 10, 2013. [ 9 ] These applications must be decided in accordance with the Family Law Act . The issues to be determined, therefore, are as follows: 1. Should Ms. J., Ms. R., and Ms. H. be appointed guardians? 2. Should Mr. D. or Ms. D.'s guardianship of the children be terminated? 3.

Has there been a change of circumstances such that the parenting responsibilities need to be reallocated, and if so, how? 4. Has there been such a change of circumstances such that parenting time needs to be reassigned, and if so, how? 5. Should there be an order for contact with the children? 6. What conduct orders, if any, are necessary? 7. What protection orders, if any, are necessary? 8.

Should the Director's application be granted? [ 10 ] In making orders respecting guardianship, parenting arrangements, or contact with the children, I must only consider the best interests of the children: see s. 39 of the Family Law Act . [ 11 ] Ms. J., Ms. R., and Ms. H. must each demonstrate why their appointments as guardian is in the best interests of the children: see s. 51 of the Family Law Act . [ 12 ] Pursuant to Rule 18.1(4) of the Provincial Court Family Rules, Ms. J., Ms. R., and Ms. H. were not required to file a Form 34 affidavit.

I am satisfied that a Form 34 affidavit is not required as the evidence at trial establishes the information required in each case: see Rule 20(2)(

c) of the Provincial Court Family Rules. [ 13 ] With respect to Ms. J.'s application, the evidence before me establishes: 1. Ms. J. has had a significant history of care of the children. 2. She has a bond with the children. 3. She has the ability to perform parental responsibilities. 4. She will cooperate with the other guardians in implementing the parenting arrangement. 5. She has suffered family violence by Mr. D. 6. The family violence she has suffered impairs her ability to care for the children, but in my view, this can be mitigated by an allocation of parenting responsibilities.

[ 14 ] I am therefore satisfied that it is in the best interests of the children that Ms. J. be appointed guardian, and I make that appointment. [ 15 ] With respect to Ms. R.'s application, the evidence before me establishes: 1. Ms. R. has the ability to ensure the children's health and well-being. 2. She has demonstrated this ability in her care of Mr. D.’s and Ms.

D.'s youngest child, who is not a subject of these proceedings. [ 16 ] For those reasons, and despite the fact that she has a lack of history of care of the children, I am satisfied that it is in the best interests of the children that she be appointed guardian, and I make that appointment. [ 17 ] With respect to Ms. H.'s application, the evidence before me establishes that Ms. H. is a loving and concerned aunt who has come forward to support both her brother and the children. For the reasons that follow, I have determined that it is not in the best interests of the children that she be appointed a guardian.

What follows is not a criticism of Ms. H.; it is the legal basis for dismissing her application. [ 18 ] I have concluded that Ms. H. places her brother's interests before that of the children's best interests. I am satisfied, based on the evidence of Dr. A., that Mr. D.'s health affects his ability to parent. I do not think that Ms. H. truly appreciates the seriousness of the situation. For example, she called A.L. as a witness. I was struck by how little Ms. H. disclosed to Mr. L. concerning the family situation. She asked him to comment on Mr.

D.'s care of the children despite the limited number of times he had observed Mr. D. and without providing Mr. L. full and accurate details regarding the concerns about her brother. [ 19 ] Second, in Ms. H.'s direct evidence, she attempted to minimize the seriousness of Mr. D. taking C. out of school. [ 20 ] Third, she did not tell the social worker that Mr. D. was home when the social worker attended her residence in January of 2013, advising her brother to stay in the laundry room. She continued the deceit with a letter to the Ministry a few days later. [ 21 ] Given these findings, and the fact that Ms.

H. lacks a history of care of the children, her application is dismissed. [ 22 ] I will now deal with the applications to terminate Mr. D.'s and Ms. D.'s guardianship pursuant to s. 51(1) (

b) of the Family Law Act . [ 23 ] There are no specific criteria listed in s. 51 of the Family Law Act with respect to termination of guardianship, but as that

section is within

Part 4 of the Family Law Act , an order to terminate guardianship must only be granted when it is in the best interests of the children to do so. [ 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. [ 27 ] With respect to Mr.

D., there is a serious concern about his parenting capacity and his abilities expressed by Dr. A. I accept her opinion in that regard. Mr. D., I find, has also committed more than one act of family violence. This does place Mr. D. in the extreme range that I have referred to. However, there is a strong bond between Mr. D. and the children. The children wish to continue to have a meaningful relationship with their father, and there has been some improvement in Mr. D.'s circumstances since December 2012. [ 28 ] These factors mitigate the situation to some extent.

These mitigating factors and my determination that parenting responsibilities can be reallocated such that it remains in the best interests of the children that Mr. D. remains a guardian, the application to terminate his guardianship is dismissed. Mr. D. will remain a guardian. [ 29 ] With respect to Ms. D., there are concerns respecting her parenting capacity and abilities. However, these concerns are mitigated to some degree by the fact that she is living with Ms. R., who is caring for Mr. D.’s and Ms. D.'s youngest child. This situation is working well. Ms.

D. also acknowledges her limitations. [ 30 ] Accordingly, I am not satisfied that the evidence establishes that Ms.

D.'s guardianship should be terminated, and accordingly, the application to terminate her guardianship is dismissed. [ 31 ] With respect to the allocation of parenting responsibilities, I may change, suspend, or terminate an order respecting parenting arrangements if I am satisfied that since November 10, 2010, there has been a change in the needs or circumstances of the children, including because of a change in the circumstances of another person: see s. 47 of the Family Law Act . [ 32 ] I am satisfied that such a change has occurred for the following reasons: 1. I accept the concerns expressed by Dr.

A. in her testimony and her report of March 26, 2012, concerning Mr. D.; 2. Mr. D.'s decision to take C. out of school in October 2011 resulting in him missing weeks of school; 3. Mr. D.'s decision to take C. and C. with him to Victoria and Vancouver, including his decision not to accept his mother's offer to

care for the children; 4. Mr. D.'s decision not to have C. return to school when he was aware his friend Ms. P. was fully participating in Occupy in Vancouver and attending her classes; 5. Mr. D. has committed acts of family violence towards his mother and Ms. D. such that his ability to care for the children is impaired. [ 33 ] While Mr.

D. attempted to explain his decision to remove C. from school and take C. and C. with him to Victoria and Vancouver as a holiday, or as part of his political conviction, or as a result of C. being bullied, or as part of a work search he embarked on, or even perhaps as a combination of all of these, he simply put his interests before that of his children. In my view, it was a terrible parenting decision which exemplifies the concerns of Dr. A. [ 34 ] Further, Mr. D.'s view that he was supervising Ms.

D.'s access, even though he was not present when the access was occurring, further demonstrates his lack of ability to properly care for the children. [ 35 ] While I appreciate that there is evidence that Mr. D.'s situation has improved since December 2012, I am not satisfied that the evidence demonstrates that there has been such a significant improvement such that the concerns of Dr. A. have been reduced. [ 36 ] Having determined that a change of circumstances has occurred, I will now determine how parental responsibility shall be reallocated. [ 37 ] I am of the view that both Ms. J. and Ms.

R. could appropriately exercise parental responsibilities. Ms. J. has a strong bond with the children and a history of care of the children. Her plan would see the children remain on the Sunshine Coast. However, I am satisfied that because of the real threat of family violence by Mr. D. to Ms. J., that her ability to care for the children is impaired. Accordingly, I must limit her ability to exercise parental responsibilities. [ 38 ] With respect to Ms. R., I acknowledge the cautions expressed by Dr. A. regarding Ms.

R.'s ability to care for the children and the criticisms of her ability suggested by some of the parties. However, Ms. R. has demonstrated her ability to provide stability, a caring home, and the well-being for the boys' younger sister. She has a parenting plan with good support for the care of all three children. She has also demonstrated the ability to work with Ms. D. I am therefore satisfied that it is in the best interests of the children that Ms. R. exercise all parental responsibilities in respect of the children and that the children reside with her. [ 39 ] Pursuant to s. 45(1) (

a) of the Family Law Act , my order with respect to the allocation of parenting responsibilities is as follows. [ 40 ] Ms. R. shall exercise all parenting responsibilities as outlined in s. 41 of the Family Law Act in respect of the children. [ 41 ] Ms.

J. will have the right to be informed of the children's medical and dental practitioners, to consult the children's medical and dental practitioners and obtain the children's medical and dental records, to consult with the children's teachers, to be informed of events at the children's schools or daycare so that she may attend, and to be consulted with respect to any significant health issues relating to the children. [ 42 ] Ms.

D. will have the right to be informed of the children's medical and dental practitioners, be informed of events at the children's schools or daycare so that she may attend, and to be informed of parent-teacher nights so that she may attend. [ 43 ] Mr. D. will have the right to consult with Ms. J. to receive information respecting the health, education, and welfare of the children. [ 44 ] With respect to parenting time, for the reasons previously stated, the children should continue to have a strong relationship with Ms. J. Ms. D. concedes that her parenting time should be at the discretion of Ms.

R. [ 45 ] Based on the concerns previously expressed regarding Mr. D., the fact that long-term supervised access should be avoided if it can, my ability to order counselling, and until Mr. D. demonstrates a significant improvement, Mr. D.'s parenting time shall be severely limited and supervised. [ 46 ] I will require Mr. D. to take counselling to better enable him to exercise parenting time: see Matthews v. Matthews , 2000 BCSC 1649 . I am of the view that absent an improvement in Mr.

D.’s situation, long-term supervised access will need to remain in place as it is in the best interests of the children for the reasons previously stated. [ 47 ] Pursuant to s. 42(1) and (2) and s. 45(1) (

b) of the Family Law Act , parenting time shall be as follows: 1. The children shall be primarily resident with Ms. R. 2. Ms. J. shall have parenting time from Fridays to Sundays one time per month, the dates and times to be agreed upon between Ms. R. and Ms. J., and such other times in Vancouver as agreed between the parties. 3. Ms. D.'s parenting time shall be at the discretion of Ms. R. 4. For the months of May, June, and July, Mr. D.’s parenting time shall be supervised for four hours one time each month with a review of parenting time to be held August 15, 2013, at 9:30 a.m. [ 48 ] During the time that Ms.

J., Mr. D., and Ms. D. are exercising parenting time, they are prohibited from exercising the parental responsibilities of making day-to-day decisions affecting the children and are prohibited from exercising the parental responsibilities respecting day-to-day care, control, and supervision of the children.

[ 49 ] Given my determination respecting guardianship and the fact that Ms. H.'s December 4, 2012, application does not seek access, there will be no orders respecting contact with the children. [ 50 ] As a result of the determinations I have made, and in order to manage behaviours that might frustrate this matter going forward, and to prevent a misuse of the court process, pursuant to s. 222 (

b) and (

c) and s. 223(3) of the Family Law Act , both Mr. D. and Ms. D. are prohibited from filing any further applications or notices of motion without first obtaining permission to do so from a Provincial Court judge. [ 51 ] Considering the concerns expressed by Dr. A. respecting Mr. D., Ms. R.'s concerns respecting Mr. D. (both of which I accept), the history of family violence, Mr. D.'s admitted use of illegal drugs, and the absence of a significant improvement in Mr. D.'s situation, I am of the view that family violence is likely to occur.

Accordingly, pursuant to s. 183(3), there shall be the following protection order: 1. Mr. D. shall be restrained from directly or indirectly communicating with or contacting P.R. except through a third party approved of by Ms. R. for the purposes of arranging parenting time with the children. 2. Mr. D. shall be restrained from attending at Ms. R.'s residence, and the order will include Ms. R.'s current address. 3. While H.J. is exercising parenting time, Mr. D. shall (1) have no contact or communication, directly or indirectly, with Ms.

J. or the children, (2) be prohibited from attending, entering, or being found within 100 metres of Ms. J.'s residence, (3) be prohibited from following Ms. J. or the children, (4) being in the presence of the children. 4. Mr. D. shall not possess or consume a controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician, during or for 24 hours prior to having parenting time with the children. 5. Mr.

D. shall enrol in counselling, such as psychiatric, psychological, substance abuse, anger management, and life skills, and provide confirmation of attendance satisfactory to the court no later than 4 p.m., August 12, 2013. [ 52 ] Finally, for the reasons expressed in this judgment, the Director's application for a continuing custody order is dismissed. (REASONS CONCLUDED)