N.M. v. A.C. and R.A.B. Date:, 2015 BCPC 356

Citation: N.M. v. A.C. and R.A.B. Date: 20150609 2015 BCPC 0356 File No: F14319 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.M. APPLICANT AND: A.C. and R.A.B. RESPONDENT ORDER OF THE HONOURABLE JUDGE E.M. RITCHIE Counsel for the Applicant: A. Crawford Counsel for A.C. D. Maser

Place of Hearing: Abbotsford , B.C. Dates of Hearing: May 25, 27, 28, 29, 2015 Date of Order: June 9, 2015 [ 1 ] THE COURT : This matter involves a young boy named R.P.C., who was born on [d.o.b.]. N.M. is the paternal grandmother and A.C. is the biological mother, R.A.B., N.M.’s son, is the biological father. [ 2 ] The existing order of June 7th, 2011, made under the Family Relations Act , provides that N.M. and A.C. have joint custody of R.P.C., with N.M. having the primary residence. [ 3 ] N.M. seeks to revoke A.C.'s guardianship.

In the alternative, she seeks an order that parental responsibilities be redefined so that A.C. is not making decisions for R.P.C. N.M. also seeks orders for supervised access, and an order that A.C. pay one-half the cost of the

Section 211 Report. [ 4 ] A.C. opposes any change to the existing arrangement of joint guardianship and shared parental rights. She seeks unsupervised parenting time with R.P.C. that will gradually increase. [ 5 ] R.A.B. is not a guardian of R.P.C. and has filed no replies to the applications of either N.M. or A.C. R.A.B. did not participate in the hearing before me, although he was in attendance in the courtroom for most, if not all of the hearing. R.A.B. indicated that he may bring an application if he is not satisfied with the outcome of the applications that I am ruling on today.

R.A.B. indicated that he had received legal advice before this hearing commenced. Any application that may be brought by R.A.B. will be dealt with at the appropriate time. The fact that he chose not to participate in these proceedings may influence future applications, but it does not preclude him from bringing such application. [ 6 ] I am going to briefly summarize some of the evidence that I heard during the four days of hearing. I am not going to refer to all of the evidence which is still fresh in everyone's mind.

I have considered all of the evidence that was presented, even though I do not refer to all of it in these brief reasons. I strongly feel that it is in the best interests of R.P.C. that this matter moves forward. While the history of this matter is relevant to my decision, the critical factors are the current and anticipated future circumstances of the parties, and what is best for R.P.C. given the current and anticipated future circumstances. [ 7 ] Both R.A.B. and A.C. have a history of drug addiction. A.C. used heroin on a daily basis during the first trimester of the pregnancy.

A.C. denies use of any alcohol during the pregnancy, but the medical professionals who have dealt with R.P.C. believe otherwise. Upon learning that she was pregnant, A.C. stopped using heroin. R.P.C. has many developmental and behavioural problems that have been assessed by experts. R.P.C. has been diagnosed as having Fetal Alcohol Spectrum Disorder, other specified neurodevelopment disorder, Attachment Disorder, Anxiety Disorder, Expressive Language Disorder, Phonological Disorder and Disruptive Behaviour Disorder.

Other disorders are also possible. [ 8 ] The Ministry of Children and Family Development (MCFD) dealt with A.C. during her pregnancy while she was in treatment for her addiction issues. MCFD was satisfied at the time of R.P.C.'s birth that A.C. was capable of caring for him, and she was initially successful at it. Unfortunately, A.C. relapsed and began using illegal drugs again. MCFD removed R.P.C. and placed him in foster care. When R.P.C. was about eight months old, MCFD placed him in the care of N.M. [ 9 ] A.C. went into treatment and was successful in stopping the use of illegal drugs.

She has not used illegal drugs since August of 2009. In 2001, when MCFD was prepared to return R.P.C. to A.C., N.M. and A.C. entered into the existing order. Their mutual intention was that A.C. would spend more and more time with R.P.C. and eventually have full-time care of him. [ 10 ] When R.P.C. was quite young, N.M. became concerned about his development and took him to various professionals for diagnosis and assistance. N.M. deserves credit for the time and money she has invested in dealing with R.P.C.'s challenges. A.C. has been less involved in dealing with R.P.C.'s diagnoses, care and therapies.

This is due to a number of factors, including her work schedule, her lack of transportation, her scepticism about the validity of at least some of the diagnoses and therapies, and the level of communication between A.C. and N.M. Part of A.C.'s scepticism about R.P.C.'s diagnoses probably comes from her adamant belief that she did not consume any alcohol during her pregnancy. [ 11 ] Unfortunately, over time the relationship between A.C. and N.M. has deteriorated. Initially N.M. would drive R.P.C. to A.C.'s residence and return later to pick him up.

She decided that she would stop driving him, and A.C., who did not have a driver's licence or a vehicle at the time, had to rely on friends to drive her to meet with R.P.C. [ 12 ] A.C. had both supervised and unsupervised visits with R.P.C. for a period. Then N.M. suspected that A.C. had begun using illegal drugs again. She did not discuss her concern with A.C., the access supervisors, or anyone else. Instead, she told A.C. that there would be no more unsupervised visits.

In effect, N.M. acted as judge and jury and punished A.C., and R.P.C., without A.C. ever being aware of the alleged wrongdoing. [ 13 ] In 2012, the parties enlisted the help of Kevin Longard, a social worker with MCFD, to assist them with the visits between A.C. and R.P.C. Mr. Longard was unsuccessful in getting the parties to agree that A.C. have more unsupervised time with R.P.C., including overnight visits. On July 4th, 2012, A.C., at Mr. Longard's suggestion, went to his office with R.P.C. and left a message for N.M. to meet at the office. N.M. refused to allow R.P.C. to go for an overnight visit with A.C.

N.M. called the police, even though she knew that there was nothing that the police could do. Both Mr. Longard and the police told A.C. and N.M. that there was no reason that A.C. could not have R.P.C. overnight. [ 14 ] A.C. took R.P.C. with her. N.M. says that her calls and texts to A.C. went unanswered. A.C. says that while she did not answer

the telephone calls, she did text N.M. saying that she would bring R.P.C. back in the morning. She was not cross-examined on this point. [ 15 ] N.M. called the Abbotsford Police who offered to go to A.C.'s home to check on R.P.C. The Abbotsford Police told both N.M. and A.C. that they had no concern for R.P.C.'s safety. [ 16 ] N.M. went to A.C.'s home the next morning and observed him outside by himself. N.M. said he was alone outside for a few minutes; A.C. said that he was alone for a few seconds while she ran upstairs to grab a blanket. [ 17 ] N.M. took R.P.C. home.

After that incident, R.P.C. displayed many behavioural problems, including a strong fear of police, regression in use of bathroom facilities, a decrease in his vocabulary, and regression in his ability to be away from N.M. Given that R.P.C. was happy and content during the time with A.C., it is likely that the behavioural problems that arose were contributed to by N.M.'s reaction to the overnight visit as opposed to the visit itself.

The experts dealing with R.P.C. have identified him as having a severe attachment disorder to N.M. [ 18 ] After the July 4th incident, A.C. did not have any contact with R.P.C. for several months. N.M. testified that she initiated a resumption of supervised visits. A.C. testified that she wanted to have continued visits and she telephoned N.M. several times and those calls were never returned. When asked about why she did not respond to A.C.'s voice mail requesting contact with R.P.C. on his birthday, N.M. acknowledged that she did not return the call as A.C.

"could have called again". [ 19 ] Supervised visits were eventually recommenced in the spring of 2013 at the Ann Davis Transition House. A.C. pays for the cost of the supervision. The supervision reports are positive. As stated earlier, there was additional evidence presented that I have not summarized but I have reviewed and considered. This includes the evidence of a social worker, an access supervisor, friends of A.C.'s, R.P.C.'s paternal uncle, S.B., and a friend of N.M.'s. [ 20 ] The evidence shows that R.P.C. is extremely fortunate to have N.M. in his life.

Her love for him is translated into R.P.C. receiving the best care and therapy that is available in the community. However, N.M. has also done some things that while done with the best of intention were not in R.P.C.'s best interest. Most troubling are N.M.'s unilateral actions when she suspected A.C. had relapsed and was using drugs again. The decrease in the amount of time she allowed R.P.C. to spend with his mother, and the refusal to consider overnight visits, led to the July 4th, 2012 incident. I note that Dr. Posthuma, who authored the

Section 211 Report, refers to this as the "kidnapping incident". I infer that this characterization came from N.M. or her family. Even at the end of the hearing, N.M.'s position was that A.C. was solely responsible for the repercussions of the July 4th incident. The evidence clearly shows that N.M. also bears responsibility for this incident. [ 21 ] The evidence also shows that N.M. tends to emphasize what she considers A.C.'s shortcomings while downplaying or not being concerned about her own actions or actions of her family members. I have already discussed the July 4th incident.

Another example is her criticism of A.C.'s desire to take R.P.C. to activities that may over-stimulate him, but deciding herself to take R.P.C. to a theme park "to give it a try". [ 22 ] R.P.C. will continue to require guidance and supervision even when he reaches adulthood. N.M., while healthy at this time, is in her 70's, and the reality is that she will one day, through advanced age, declining health or death, be unable to be there for R.P.C. N.M. recognizes the reality of this and has made plans for her son, S.B., to take over R.P.C.'s care.

What N.M. does not appear to appreciate is that it is in R.P.C.'s best interest that he receive counselling to deal with his severe attachment to N.M. as the experts have recommended. Hopefully N.M. will be a strong, loving support for R.P.C. for many years to come, but R.P.C. needs to be prepared for the loss of N.M. I note that at the time of the Sunny Hill assessment in December 2013, N.M. reported that R.P.C. could not be cared for by anyone other than N.M. or her husband.

The evidence now is that R.P.C. does well at school and in the care of extended family members, including his uncle, S.B. [ 23 ] A.C. clearly loves R.P.C. She testified that she accepts R.P.C. has challenges. The written reports and evidence from the access supervisors indicate many positive instances when A.C. dealt with R.P.C. in a manner appropriate to dealing with someone with the developmental problems he has. A.C. has taken some courses on parenting children with special needs.

She will have to become more involved in R.P.C.'s therapies and activities on a consistent basis in order to ensure that R.P.C. has the best possible chance to have a happy, healthy life, and to ensure that R.P.C. avoids the pitfalls that many dealing with his type of difficulties fall into. It is clear to me that A.C. has made tremendous strides since R.P.C.'s conception. [ 24 ] Dr. Posthuma was not called to testify. I will briefly refer to his

Section 211 Report. This report's main focus is on whom is best suited to have day-to-day care of R.P.C. It was done at a time when A.C.'s request for primary custody under the Family Relations Act remained outstanding. The report deals only briefly with the issue of what parenting time, including overnight time, that A.C. should have with R.P.C. [ 25 ] The difficulty I have with parts of the

Section 211 Report is that the evidence before me appears to be different in some respects to what Dr. Posthuma was told. For example, the report talks favourably of the regular telephone access between R.A.B. and R.P.C., but does not refer to the failure of N.M. to return messages left by A.C., including messages asking to arrange a time for telephone contact. Another example is the report's references to A.C. arbitrarily deciding to exercise overnight access on July 4th, 2012. The evidence before me shows that the decision was not arbitrary. [ 26 ] Dr.

Posthuma opines that there is unlikely to be any emotional attachment between R.P.C. and A.C. The evidence before me indicates that there is an emotional attachment, even though R.P.C.'s time with A.C. has been limited. Accordingly, while I am keeping Dr. Posthuma's report and recommendations in mind, I am not following those recommendations fully. [ 27 ] The only concern of this court is the best interests of R.P.C.

His best interests include continuing to have the love and support of N.M. and her family, but it also includes R.P.C. having his mother in his life, not as an occasional visitor but as a loving parent who is substantially involved in his life forever. [ 28 ] N.M. seeks an order terminating A.C.'s status as guardian of R.P.C. A.C. opposes this application. I was referred to two cases,

J.W.K v. E.K. and L.A.M.G. v. C.S. Both cases refer to the British Columbia Court of Appeal decision in British Columbia Birth Registration No. 2004-59-0201058 where the court confirmed that the best interest test applies to orders for termination of guardianship. In this case, nothing in the evidence before me shows that it would be in R.P.C.'s best interests to cancel A.C.'s guardianship. I have already expressed my views about the July 4th, 2012 incident.

As to leaving R.P.C. outside the door on July 5th, I am troubled that A.C. would have left R.P.C. outside for any length of time, but I do not see that lapse in judgment as a basis to revoke guardianship. [ 29 ] The application to terminate A.C.'s status as a guardian of R.P.C. is denied. Parenting Rights: [ 30 ] In the alternative, N.M. seeks to have A.C.'s parenting responsibilities strictly redefined so that she does not have any decision- making ability when it comes to R.P.C.

N.M. is agreeable with A.C. continuing to have the right to request and receive from third parties health, education and other information respecting R.P.C. The concern expressed by N.M. and echoed in the

Section 211 Report, is that A.C. does not acknowledge R.P.C.'s problems and has not taken the time to learn from the experts how to deal with those problems, and therefore will not handle situations concerning R.P.C. appropriately. [ 31 ] A.C. did acknowledge that R.P.C. has challenges, and has in fact taken some of the courses recommended. Also, all of the evidence of A.C.'s actions while R.P.C. is with her indicate that she is a loving mother who responds to R.P.C.'s needs. There is no evidence before me that justifies taking away A.C.'s parenting rights and I refuse to do so.

Parenting Time: [ 32 ] N.M. seeks an order that A.C.'s parenting time with R.P.C. be supervised. A.C. seeks an end to supervised visits with R.P.C. and suggests the following: That parenting time with A.C. for the month of June happen in the presence of the current access supervisor who will act as a parenting coach during those times; the costs of the parenting coach will be paid for by A.C. That during the month of June there be at least two visits at A.C.'s home with the timing and length of those visits to be agreed between the parties.

That during the month of July, A.C. shall have parenting time unsupervised at her home on Saturday, July 4th and July 11th from 9:00 a.m. to 5:00 p.m.

That there be one overnight visit on a date and time during August to be agreed on between the parties, and that she have telephone access with R.P.C. once per week. [ 33 ] A.C. also seeks an order that N.M. provide notice to her of all appointments, organized activities and the like involving R.P.C. [ 34 ] I agree with the submissions made on behalf of A.C., and I order that A.C. have the parenting time outlined above and that N.M. provide her with notice of the appointments, organized activities and the like. [ 35 ] I encourage both parties to cooperate and do their best to make this work.

Just as R.P.C. has adapted to school, to visits with his father, and to being cared for by others than N.M. or Mr. M., he can adapt to increased, unsupervised parenting time with his mother. I encourage both parties to gradually expand the time spent with A.C. by agreement. [ 36 ] Although neither party asked for a review of parenting time, I feel it is appropriate, given the history of this case and the complexities of R.P.C.'s situation.

Therefore, I direct that the parties attend at the judicial case manager and set a review hearing in front of me for a one-hour hearing to be heard before the end of September 2015. [ 37 ] I direct that if the parties have not reached a consensus regarding ongoing parenting time by the end of August 2015, they are to file an exchange application setting out what orders they seek, supported by affidavits, at least one week before the review date. [ 38 ] N.M. also requests reimbursement of one-half of the cost of the

Section 211 Report. No application has been filed, but I find if I do not deal with the matter at this time I suspect that it will simply bring the parties back to court. [ 39 ] Under the legislation I have the discretion to allocate the cost of the report between the parties in whatever proportion I feel appropriate in the circumstances.

Taking into account the limited information I have about the financial situation of the parties, the fact that A.C. has paid for years of supervised visits with R.P.C., the fact that A.C. has had her mother pay for a drug test to satisfy the unfounded suspicions of N.M., and the fact that N.M. has paid for numerous therapies, activities and treatments for R.P.C., I find it is appropriate that A.C. reimburse N.M. for 35 percent of the cost of the

Section 211 Report, payable at a rate of no less than $100 per month. [ 40 ] I end my reasons by encouraging both N.M. and A.C. to focus on the future. A.C. needs to be more involved with R.P.C.'s therapies and activities. The experts have expressed concern that A.C. will not "walk the walk" when it comes to learning about R.P.C.'s issues and how we dealt with them. I am giving her a chance to alleviate those concerns. E.M. RITCHIE Provincial Court Judge