L.M. v. D.R.M., 2018 BCPC 408

Citation: L.M. v. D.R.M. 2018 BCPC 408 Date: 20181011 File No: F16281 Registry: [Omitted for publication] 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: K.M.(1) , born [omitted for publication] K.M.(2), born [omitted for publication] L.C., born [omitted for publication] P.M., born [omitted for publication] BETWEEN: Mr. L.M. APPLICANT AND: Ms. D.R.M. and M.M.

RESPONDENTS THE DIRECTOR, CHILD, FAMILY AND COMMUNITY SERVICES RESPONDENT File No: F17825 Registry: [Omitted for publication] AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: Mr. L.M. APPLICANT AND: M.C.S.M. and M.W. RESPONDENTS AND:

Ms. D.R.M. APPLICANT AND RESPONDENT BY COUNTERCLAIM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Director: No appearance Counsel for the Applicant: S. Davidson Counsel for the Respondent: D. Lyons Place of Hearing: [Omitted for publication], BC Dates of Hearing: September 18, 19, 2018 Date of Judgment: October 11, 2018 Introduction [ 1 ] Mr. L.M. and Ms. D.R.M. are before the court for a hearing on Mr. L.M.’s notice of motion on court file 16281 and application on court file 17825, both of the [omitted for publication] Registry. Ms. D.R.M. is Mr. L.M.’s former spouse.

They both reside in [omitted for publication] with their extended family. Under court file 16281, Mr. L.M. seeks to enforce a final order made on March 7, 2012, giving him shared custody and primary residence of his three grandchildren, K.M.(1), L.C., and K.M.(2). On court file 17825, Mr. L.M. and Ms. D.R.M. have applied separately for guardianship, parenting time, and primary residence of their great granddaughter, L.M.(2). At the time of the hearing, K.M.(1) and L.C. resided with their mother, M.M., in Vancouver. K.M.(2) and L.M.(2) live with Ms. D.R.M. in [omitted for publication].

None of the children’s biological parents appeared at the hearing, although duly served with the notice of motion and application. Issues [ 2 ] The salient issues before the Court are: a. Should the Court order Mr. L.M. have primary residence of the children? b. What order, if any, should the Court make with respect to L.M.(2)? [ 3 ] With respect to K.M.(1), L.C., and K.M.(2), Mr. L.M. seeks only their primary residence. With respect to L.M.(2), he seeks an order for guardianship, parenting time in the form of primary residence, and parenting responsibilities. Mr.

L.M. does not seek an alternative allocation of specified parenting time for any of the children beyond reasonable and generous access. Mr. L.M.’s application and notice of motion came before me for hearing on September 18 and 19, 2018, in [omitted for publication] Provincial Court. At the end of the hearing, I reserved my decision. These are my reasons for judgment. [ 4 ] For convenience sake, I will refer to Mr. L.M. and Ms. D.R.M.’s children and grandchildren in these reasons by their first names. In doing so, I mean no disrespect, but seek only to clearly distinguish them from each other.

History of the Proceedings Court File 16281 History of the Proceedings [ 5 ] On March 6, 2012, Ms. D.R.M. (“Ms. D.R.M.”) filed an application to obtain an order against the Director of Child, Family and Community Services (“MCFD”), Mr. L.M. (“Mr. L.M.”) and M.M (“M.M”). M.M is Mr. L.M. and Ms. D.R.M.’s daughter and the mother of: a. K.M.(1), born [omitted for publication] (“K.M.(1)”); b. K.M.(2), born [omitted for publication] (“K.M.(2)”); c. L.C. born [omitted for publication] (“L.C.”); and d. P.M. born [omitted for publication] (“P.M.”). [ 6 ] In her March 6, 2012 application, Ms.

D.R.M. sought custody of K.M.(1), K.M.(2), L.C., and P.M. [ 7 ] Also on March 6, 2012, Mr. L.M. filed a reciprocal application to obtain an order against the MCFD, Ms. D.R.M., and M.M. seeking custody of K.M.(1), K.M.(2), L.C., and P.M. [ 8 ] At the time of Ms. D.R.M. and Mr. L.M.’s respective applications, P.M. was in Ms. D.R.M.’s interim custody under MCFD’s supervision and K.M.(1), K.M.(2), and L.C. were in Mr. L.M.’s interim custody under MCFD’s supervision. It is not clear to me when M.M.’s children began living with their grandparents under MCFD supervision. [ 9 ] On March 6, 2012, Mr. L.M. and Ms.

D.R.M. filed reciprocal written consents to sharing joint custody of M.M.’s children.

[ 10 ] Mr. L.M. and Ms. D.R.M.’s reciprocal applications under court file 16281came for hearing before Judge Milne on March 7, 2012, in [omitted for publication] Provincial Court. Attending at the hearing were: Mr. L.M., Ms. D.R.M., M.M., James Woodworth, delegate of the Director of MCFD, and Sarah Westwood, counsel for the Director of MCFD. [ 11 ] On March 7, 2012, Judge Milne made a final order, by consent that: a. M.M., Mr. L.M., and Ms. D.R.M. have joint custody of K.M.(1), K.M.(2), L.C., and P.M.; b. The primary residence of K.M.(1), K.M.(2), and L.C. was with their grandfather, Mr. L.M.; c.

The primary residence of P.M. was with their grandmother, Ms. D.M.R. [ 12 ] Judge Milne’s March 7, 2012 order was made under the Family Relations Act (“ FRA ”). The Family Law Act (“FLA”) came into force on March 18,

Section 251 of the FLA preserves certain rights which had vested under the authority of the FRA before it came into force.

Section 251 states: Transition — care of and time with children 251

(1) If an agreement or order, made before the coming into force of this section, provides a party with (

a) custody or guardianship of a child, the party is a guardian of the child under this Act and has parental responsibilities and parenting time with respect to the child under this Act, or (

b) access to, but not custody or guardianship of, a child, the party has contact with the child under this Act.

(2) For the purposes of subsection (1), a party's parental responsibilities, parenting time or contact with a child under this Act are as described in the agreement or order respecting custody, guardianship and access. [ 13 ] Accordingly pursuant to s. 251 of the FLA, Mr. L.M., Ms.

D.R.M., and M.M. are joint guardians of K.M.(1), K.M.(2), L.C., and P.M. [ 14 ] On March 8, 2012, James Woodworth, delegate for the Director of MCFD filed a Report to the Provincial Court in Form B with respect to K.M.(1), K.M.(2), L.C., and P.M. indicating the children had been returned pursuant to s. 48(1) of the Child, Family and Community Service Act (“CFCSA”).

It states: The Director has returned the child for the following reasons: The grandparents have applied and M.M. has consented to joint custody of the children with the primary residence to be divided between the grandparents; This custody order will make the current arrangement permanent without compromising the ability of the grandparents to support the children within the family; The director believes the joint custody order is in the children’s best interests and also addresses identified

section 13 concerns that resulted in the removal of the children. It also maintains family contacts and the children’s connection to their [omitted for publication] community. The children also stay at their establish schools. [ 15 ] At the time the Form B Report to Court was filed on March 8, 2012, K.M.(1) was seven years old, K.M.(2) five, L.C. four, and P.M. two. M.M. resided at [omitted for publication], Vancouver, BC; Mr. L.M. resided at [omitted for publication] and Ms. D.R.M. resided at [omitted for publication]. [ 16 ] Mr.

Woodworth did not indicate in the Form B Report to Court when MCFD had removed K.M.(1), K.M.(2), L.C., and P.M. from M.M.’s care; however, the s. 211 report states the children were taken into MCFD care in June 2011 and placed in foster homes. [ 17 ] MCFD withdrew its CFCSA application when Mr. L.M., Ms. D.R.M., M.M., and MCFD worked out a shared custody arrangement resulting in Judge Milne’s March 7, 2012 order. The day following Judge Milne’s March 7, 2012 order, MCFD withdrew from these FLA proceedings. [ 18 ] On May 15, 2017, Mr.

L.M. filed a notice of motion and supporting affidavit in court file 16281 seeking to enforce Judge Milne’s March 7, 2012 order. On June 7, 2018, Jason Morley, process server, personally served M.M. with Mr. L.M.’s May 15, 2017 notice of motion and affidavit at her residence at [omitted for publication], Vancouver, BC. On June 8, 2017, Roye Lovgren, process server, personally served Ms. D.R.M. with Mr. L.M.’s May 15, 2017 notice of motion and affidavit at her residence at [omitted for publication]. [ 19 ] The first appearance of Mr.

L.M.’s May 15, 2017 notice of motion came before Judge Jackson in [omitted for publication] Provincial Court on June 1, 2017. Mr. L.M. appeared in person together with his current legal counsel, Mr. Sean Davidson. Ms. Sarah Westwood appeared as counsel for MCFD. Neither Ms. D.R.M. nor M.M. appeared in person or by agent as they had not yet been served with the process. The matter was adjourned to June 22, 2017, in [omitted for publication] Provincial Court. [ 20 ] On June 22, 2017, Mr. L.M.’s May 15, 2017 notice of motion came on before me in [omitted for publication] Provincial Court for a second appearance.

Both Mr. L.M. and Ms. D.R.M. appeared in person. Mr. L.M. was represented by Mr. Davidson. M.M. did not appear. The matter was adjourned to the Judicial Case Manager to fix a date for a family case conference. [ 21 ] On August 10, 2017, a family case conference proceeded before me in [omitted for publication] Provincial Court. On that date Jonathan Yuen appeared as counsel for MCFD. Mr. L.M., Ms. D.R.M., and MCFD social worker Maurice Yee appeared in person. M.M.

did not appear although the Court attempted to contact her by telephone at her home in Vancouver, BC. I ordered by consent that court files 16281 and 17825 be heard together and the Family Justice Report Service prepare a full s. 211 report with respect for K.M.(1), K.M.(2), L.C., and L.M.(2). [ 22 ] This matter came before Judge Jackson on December 6, 2017, in [omitted for publication] Provincial Court to determine the progress of the s. 211 report. Ms. Westwood appeared as counsel for MCFD; Mr. Davidson appeared as counsel and agent for Mr. L.M. and Mr. Daniel Lyons appeared as counsel and agent for Ms. D.R.M.

M.M. did not appear. As the s. 211 report had not yet been prepared, the matter was adjourned to the Judicial Case Manager to

schedule a further court appearance. The Court directed the registry not to notify MCFD of any further proceedings under court file 16281 in the absence of a new application. [ 23 ] This matter came before Judge Jackson on February 14, 2018, in [omitted for publication] Provincial Court. Mr. Davidson appeared as counsel and agent for Mr. L.M. No one else appeared. The matter was adjourned to the Judicial Case Manager to

schedule a hearing date. [ 24 ] On April 27, 2018, a hearing was scheduled for September 18, 19, and 20, 2018, in [omitted for publication] Provincial Court. The s. 211 report was received by the court registry and legal counsel on September 14, 2018, and the hearing commenced on September 18, 2018, and continued on September 19, 2018. [ 25 ] Mr. L.M. was represented in the hearing by Mr. Davidson, a lawyer from Terrace, BC; Ms. D.R.M. was represented by Mr. Lyons, a lawyer from Vanderhoof, BC. Mr. L.M. and Ms. D.R.M. both reside in [omitted for publication].

Because they received the s. 211 on September 14, 2018, counsel had no opportunity to review it with their clients before the first day of hearing on September 18, 2018. [ 26 ] M.M. never filed anything in response to Mr. L.M.’s notice of motion, nor did she appear at this hearing. She did, however, contribute to the s. 211 report, as did all of her children. The Family Justice Report Service provided all the parties, including M.M., with a copy of the s. 211 report. Court File 17825 [ 27 ] The proceedings comprising court file 17825 were initiated on July 11, 2017, when Mr.

L.M. filed an application to obtain an order naming M.C.S.M., M.W., and Ms. D.R.M. as respondents. Mr. L.M. sought orders of guardianship, parenting responsibilities and parenting time of, and primary residence for L.M.(2). [ 28 ] L.M.(2) is M.C.S.M. and M.W.’s biological daughter. She was born [omitted for publication] and was four years old at the date of the hearing. M.C.S.M. is Mr. L.M. and Ms. D.R.M.’s granddaughter and L.M.(2) is their great granddaughter. [ 29 ] There are no previous orders or written agreements with respect to L.M.(2). [ 30 ] Mr.

L.M. bases his application on the fact that L.M.(2) had been in his care for over two years before she was removed without his consent. L.M.(2) came into Mr. L.M.’s care in [omitted for publication] 2014, when she was about three months old. She was removed from his care on [omitted for publication] 2017, when she was two and one-half. [ 31 ] On September 8, 2017, Ms. D.R.M. filed a reply in court file 17823, indicating her opposition to Mr. L.M.’s application for guardianship, parenting responsibilities and parenting time of L.M.(2). Ms. D.R.M. claimed that Mr.

L.M. did not properly care for L.M. (2) or keep her safe. Ms. D.R.M. counterclaimed for orders of guardianship, parenting responsibilities, parenting time of and primary residence for L.M.(2). [ 32 ] Neither Mr. L.M. nor Ms. D.R.M. filed materials required under Rule 18.1 of the Provincial Court (Family) Rules which provides: Guardianship Orders Guardianship affidavit required

(1) When an order is sought appointing a person as the guardian of one or more children, the applicant must (

a) complete and file with the court the original and 3 copies of an affidavit in Form 34, attaching the exhibits referred to in the affidavit, that complies with subrule (4) and serve a copy of that filed affidavit on the other parties and on any other person who may be affected by the orders sought, and (

b) provide to the judge any other evidence the judge considers necessary. [ 33 ] Neither M.C.S.M nor M.W. filed a Reply to Mr. L.M.’s application or Ms. D.R.M.’s counterclaim for guardianship, parenting responsibilities and parenting time of L.M.(2), nor did they appear at the hearing. Mr. L.M. asserts M.C.S.M. and M.W. provided their written consent to his application in the form of a letter marked Exhibit 1. [ 34 ] Mr. L.M. testified that M.C.S.M. and M.W. wrote Exhibit 1, while Ms. D.R.M. maintains it is in Mr. L.M.’s handwriting.

Whoever wrote the letter, there is no dispute that M.C.S.M. and M.W. signed it. [ 35 ] I heard oral evidence from Mr. L.M. and Ms. D.R.M. I also have Mr. L.M.’s May 15, 2017 affidavit filed in support of his Notice of Motion. The parties filed the following two exhibits: Exhibit 1: Letter signed by M.C.S.M. and M.W. as to their views with respect to the primary residence of L.M.(2). It states: I am writing this letter for Mr. L.M. my father.

I M.C.S.M. and M.W. we both want Mr. L.M. to have L.M.(2) back. Grandpa was looking after her for 30 months on his own pension. We don’t want L.M.(2) with Ms. D.R.M. cause she’s not nice to me. When I was young my Grandpa Mr. L.M. took care of me on his own till I was 19 years old. Ms. D.R.M. is on drugs all the time, with her younger son [omitted for publication]. Both on drugs every day, and not looking after L.M. (2). We both want L.M.(2) with Mr. L.M. till she is old enough to be on her own, don’t want L.M.(2) going on drugs when she is young, just like Ms. D.R.M.’s other kids did. Thanks. Exhibit 2:

Section 211 Report of Erica McCuaig, Family Justice Counsellor of the Family Justice Report Service in Abbotsford, BC. Background Facts [ 36 ] I have attempted to reconstruct a cohesive narrative of events from the oral evidence, Mr. L.M.’s affidavit and the s. 211 report. This was challenging without corroborating evidence of other witnesses or third party records. Nevertheless, this is a family law proceedings, and I am guided by ss. 199 and 202 of the FLA , which states: Conduct of proceeding 199

(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to (

i) minimize conflict between, and if appropriate, promote cooperation by, the parties, and (ii) protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties. . . . Court may decide how child's evidence is received 202 In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following: (

a) admit hearsay evidence it considers reliable of a child who is absent; (

b) give any other direction that it considers appropriate concerning the receipt of a child's evidence. [ 37 ] Mr. L.M. and Ms. D.R.M. were married in 1975. They had seven children and separated in 1990, when their eldest child, [omitted for publication], was 16. Mr. L.M. is now 67 years old and Ms. D.R.M., 63. Mr. L.M. and Ms. D.R.M. are both members of the [omitted for publication], as are their children and grandchildren. They both reside in [omitted for publication], albeit in separate residences. [ 38 ] Mr. L.M. and Ms. D.R.M. are the biological parents of seven children: a.

L.M.(1), age 43, resides in [omitted for publication]. She is the mother of M.C.S.M., age 25, A.M.(2), age 23 and B.M., age 10. B.M. is the son of L.M.(1)’s new partner, S.; b. W.M., age 42, resides in [omitted for publication]. She has two adult children, B.M.(2), age 25 and J.M. age 22. B.M.(2) now has children of her own; c. S.M., age 40, resides in Vancouver with her two daughters, S.M.(2), age 12 and K., age 10. S.M. lives with her sister J.R. and J.R.’s children. Both S.M. and J.R. study carpentry at BCIT. d.

J.R., age 39, is the mother of P.R., age 16 and in Grade 11, C.R., age 14 and in Grade 9 and E.R., age 11 and in Grade 6 or 7. J.R. lives in Vancouver with S.M. and her children and studies carpentry at BCIT. J.R. and S.M. live next door to M.M.; e. A.M., age 37 or 38, resides in [omitted for publication] with his partner N.N. has one son, who is in Grade 11 or 12. A.M. has a daughter A.M.(3), who is 16 or 17 and currently residing in Vancouver with S.M. A.M. also has two children, K. and C.(2) who reside in Ashcroft with their mother Ms. S.; f.

M.M., age 35 or 36, is the mother of K.M.(1), K.M.(2), L.C., and P.M. M.M. resides in Vancouver with her new husband, Mr. S. M.M. lives in close proximity to S.M. and J.R.; and g. W.M.(2), who is 29 and resides in [omitted for publication] with Mr. L.M.

[ 39 ] Mr. L.M. and Ms. D.R.M. also have great grandchildren, two of who are M.C.S.M.’s daughters L.M.(2) and M.M.(2). L.M.(2) is four years old and M.M.(2) is one. Neither L.M.(2) nor M.M.(2) have been in M.C.S.M.’s care since they were infants. [ 40 ] M.M. married Mr. C., who is the father of K.M.(1), K.M.(2), L.C., and P.M. M.M. left [omitted for publication] for Vancouver when she was about 18 years old. M.M. and her family lived in Vancouver until 2009, when M.M. returned to [omitted for publication] and moved in with Mr. L.M. On June 13, 2009, M.M. gave birth to P.M., who failed to thrive as a baby. Ms.

D.R.M. took P.M. to her home and has been his primary caregiver ever since. [ 41 ] In 2010 M.M. was living in [omitted for publication] with her children across the street from W.M. and her family. I gather MCFD was somehow involved with M.M.’s family at that time. For reasons that were never fully explained to the Court, Mr. L.M. received the Universal Child Care benefit for M.M.’s children for about three months, with which he bought them food and other necessities. In 2011 he transferred this benefit to M.M.

When she received $2,400 in retroactive benefits, M.M. left her children with a 17 year old babysitter and caught a bus to Vancouver, never to return. [ 42 ] After M.M. departed, W.M. took in and cared for K.M.(1), L.C. and K.M.(2). In June 2011, MCFD removed the children from M.M.’s care and placed them in foster homes. At some point the children went to live with Mr. L.M. under MCFD supervision. P.M. remained in Ms. D.R.M.’s care, under MCFD supervision. [ 43 ] Ms. D.R.M. believes M.M. abandoned her children as a result of becoming overwhelmed and unable to cope with her parenting responsibilities.

M.M. did not suffer any addictions. She did not and does not drink or smoke or use drugs. [ 44 ] M.M.’s husband Mr. C. died, although I have no evidence as to when. I assume it was before March 2012, because he is not named as a respondent to Mr. L.M. and Ms. D.R.M.’s reciprocal applications. [ 45 ] In March 2012, with MCFD’s consent, M.M., Mr. L.M., and Ms. D.R.M. agreed to share joint custody of M.M.’s four children. K.M.(1), K.M.(2), and L.C.’s primary residence was to be with Mr. L.M. and P.M.’s with Ms. D.R.M. M.M. remained in Vancouver.

This arrangement was finalized in Judge Milne’s March 7, 2012 consent order. [ 46 ] Although K.M.(1), K.M.(2), and L.C.’s primary residence was with Mr. L.M., he was not their only caregiver. MCFD paid B.M.(2) to provide 20 hours of child care each week. When school was in session, the children went to B.M.(2)’s home directly from school. They stayed with B.M.(2) for three hours or so. She fed the children dinner and at by 7:00 p.m., they returned to Mr. L.M.’s care. [ 47 ] MCFD paid B.M.(2) $1,165 per month for providing childcare for K.M.(1), K.M.(2), and L.C. for approximately four years. In 2016, with Mr.

L.M. and MCFD’s consent, Ms. D.R.M. assumed responsibility of the children’s afterschool care. Ms. D.R.M. said the children were in her care until 7:30 or 8:00 p.m., during which time she provided them with snacks and dinner and monitored their homework assignments. Mr. L.M. maintains the children often asked to be picked up earlier. [ 48 ] On [omitted for publication] 2014, Mr. L.M. found three month old L.M.(2) soaked and uncared for in her crib while her parents, M.C.S.M. and M.W., were high on drugs. Mr.

L.M. took L.M.(2) home with him and cared for her until she was removed from his care on March 7, 2017. [ 49 ] I understand that MCFD was somehow involved in monitoring L.M.(2)’s care, however, the Court was provided very little information in this regard. Mr. L.M. says he supported L.M.(2) without any financial assistance from MCFD. [ 50 ] M.M. removed K.M.(1) from Mr. L.M.’s care after K.M.(1) disclosed she had been sexually abused by Mr. L.M.’s nephew and lodger, R.J. K.M.(1) has lived with M.M. in Vancouver since March 2016. Mr.

L.M. has had very little, if any contact with K.M.(1) since she relocated to Vancouver. [ 51 ] K.M.(2), L.C., and L.M.(2) continued to live with Mr. L.M. until March 7, 2017, at which time they went to live with Ms. D.R.M. On that day, Ms. D.R.M., Mr. L.M., and W.M. met with MCFD social workers, Maurice Yee and Jennifer Welsh, at Ms. D.R.M.’s residence. The social workers expressed safety concerns for the children in Mr. L.M.’s care because of his medical issues, hearing impairment, unfenced yard and allegations he physically and verbally abused the children.

Thereafter, K.M.(2), L.C., and L.M. (2) remained in Ms. D.R.M.’s care. Mr. L.M. and Ms. D.R.M. understood from the social workers’ involvement that MCFD had removed K.M.(2), L.C., and L.M.(2) from Mr. L.M.’s care and placed them with Ms. D.R.M. MCFD denies having removed the children. In his affidavit, Mr. L.M. acknowledged he had never received any court documents from MCFD regarding the children being removed from his home. [ 52 ] On March 12, 2017, during the school spring break, Ms. D.R.M. took K.M.(2), L.C., and P.M. to Vancouver to visit M.M. and K.M.(1).

L.C. remained in Vancouver where she now resides with her mother and sister in close proximity to her aunts and their children. K.M.(2), P.M., and L.M.(2) continue to reside with Ms. D.R.M. I understand Ms. D.R.M. receives financial assistance for K.M.(2) and P.M.’s support. [ 53 ] Mr. L.M. never consented to K.M.(1), K.M.(2), L.C., or L.M.(2) being removed from his care. He believes K.M.(1) was wrongfully removed by M.M.; he believes Ms.

D.R.M. colluded with MCFD to remove K.M.(2), L.C., and L.M.(2); finally, he believes all the children were removed because he defended R.J. [ 54 ] After Judge Milne’s March 7, 2012 order, MCFD had no further protection concerns for any of M.M.’s children and did not initiate any proceedings. However, because of their role in the March 7, 2017 meeting, both Mr. L.M. and Ms. D.R.M. believed MCFD social workers removed these children from Mr. L.M.’s care. It was only after commencing these proceedings that Mr. L.M. learned through legal counsel MCFD had not removed any of the children from his care.

Section 211 Report [ 55 ] On August 10, 2017, upon the request of Mr. L.M., I ordered a full report from the Family Justice Report Services, pursuant to

s. 211 of the FLA which states: Orders respecting reports 211

(1) A court may appoint a person to assess, for the purposes of a proceeding under

Part 4 , one or more of the following: (

a) the needs of a child in relation to a family law dispute; (

b) the views of a child in relation to a family law dispute; (

c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.

(2) A person appointed under subsection (1) (

a) must be a family justice counsellor, a social worker or another person approved by the court, and (

b) unless each party consents, must not have had any previous connection with the parties.

(3) An application under this

section may be made without notice to any other person.

(4) A person who carries out an assessment under this

section must (

a) prepare a report respecting the results of the assessment, (

b) unless the court orders otherwise, give a copy of the report to each party, and (

c) give a copy of the report to the court.

(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section. [ 56 ] Erica McCuaig, Family Justice Counsellor, prepared a 15 page fulsome report which she distributed on September 14, 2018. To prepare her report, FJC McCuaig interviewed in person Mr. L.M., Ms. D.R.M., M.M., K.M.(1), L.C., K.M.(2), and P.M.; she conducted home visits with all three guardians.

FCJ McCuaig attempted, albeit unsuccessfully, to interview W.M. who has been historically active in the children’s care. [ 57 ] FCJ McCuaig also interviewed, by telephone: James Woodworth, Team Leader and Social Worker in the employ of MCFD, Maurice Yee, MCFD Social Worker, Leah Watson, and Social Worker for the Vancouver Aboriginal Child & Family Services Society (VACFSS), Mary Anna Cianelli, Administrator of Van Horne Elementary in Vancouver, BC, and Claudia Liddle, Team Leader Social Worker for VACFSS.

All the interviews and home visits were conducted between May 2 and June 5, 2018. [ 58 ] FCJ McCuaig based her assessment on the criteria set out in s. 37 of the FLA relevant to a determination as to what is in the child’s best interest. To this end, FCJ McCuaig reported on the M.’s history of family violence, the children’s circumstances and views, and Mr. L.M., Ms. D.R.M., and M.M.’s parental capacity. Her report did not assess L.M.(2)’s circumstances. [ 59 ] The Family Justice Report Services distributed the s. 211 report to all the parties. Mr. L.M. and Ms.

D.R.M. had an opportunity to review it with their respective legal counsel on the first day of hearing. [ 60 ] The s. 211 report is hearsay evidence, however, it is a comprehensive report based of FJC McCuaig’s interviews with many of the people involved in the children’s lives. None of the parties applied to have FCJ McCuaig attend the hearing; none sought a subpoena for any witness. The only persons to testify at hearing were Mr. L.M. and Ms. D.R.M.

None of the parties provided the Court with any relevant documentation relating to the children’s health, education, recreation, involvement with MCFD, or the police. I would expect if the s. 211 report contained information the parties knew to be inaccurate, they would have brought it to the Court’s attention. I will therefore consider the undisputed contents of the s. 211 report, and assign the evidence such weight as I deem appropriate. Denial of Parenting Time of K.M.(1) [ 61 ] In March 2016, K.M.(1) went to live with her mother in Vancouver.

On March 7, 2017, K.M.(2), L.C., and L.M.(2) began residing full-time with Ms. D.R.M. On March 12, 2017, L.C. also went to live with her mother in Vancouver. These transitions were made without Mr. L.M.’s or the Court’s permission. Mr. L.M. asks the Court to enforce Judge Milne’s March 7, 2012, order by directing M.M. and Ms. D.R.M. to return K.M.(1), L.C., and K.M.(2) to his care. [ 62 ] A person entitled to parenting time or contact under an order may apply to enforce the order (s. 61(1)(a)).

Section 61(1) provides that a person entitled to parenting time or contact under an order may apply to enforce the order within 12 months of the denial of parenting time or contact. In Shaw v Shaw , 2014 BCSC 984 , Mr.

Justice Jenkins held: a. the court should not consider evidence of incidents occurring prior to the 12 month limit; and b. the applicant must prove that the denial of parenting time or contact was wrongful. [ 63 ] Section 62(1) enumerates a list of non-exhaustive circumstances in which a denial of parenting time is not wrongful, including if the withholding guardian believed the child would suffer family violence if the parenting time or contact were exercised (s. 62(1)(a)). Pursuant to s. 1 of the FLA , family violence includes exposing a child to physical, sexual, ps ychological, or emotional abuse .

Section 62 also includes the catch-all category of “other circumstances the court considers to be sufficient justification for the denial.” The Court takes a broad view of the behaviour that may qualify as family violence: S.M. v. R.M. , 2015 BCSC 1344 .

[ 64 ] I glean from the evidence that K.M.(1) left Mr. L.M.’s care sometime after B.M.(2) learned K.M.(1) had been sexually abused by R.J. and reported it to the authorities. I have been given little evidence as to when these assaults occurred, but obviously before K.M. (1) went to live with M.M. in March 2016. R.J. has since been convicted, sentenced, and imprisoned for sexually assaulting K.M.(1). Nevertheless, Mr. L.M. still believes R.J. is innocent of the offence. [ 65 ] I am satisfied on the evidence of the parties that M.M. removed K.M.(1) from Mr.

L.M.’s care as a result of K.M.(1)’s allegations of sexual abuse against R.J. The police investigated the allegations, the Crown charged R.J. and the Court convicted him of and sentenced him for those offences. In the circumstances, I find M.M. was justified in removing K.M.(1) from a residence where she was reasonably believed to have been sexually abused. In my view, the fact that Mr. L.M. continues to proclaim R.J.’s innocence reinforces M.M.’s justification in removing K.M.(1) from Mr. L.M.’s care. [ 66 ] Mr.

L.M. bears the burden of proving the denial of his parenting time with K.M.(1) was wrongful and has failed to do so. Moreover, Mr. L.M. filed his application on May 15, 2017, which is more than 12 months after K.M.(1) had been removed from his home. Arguably, M.M.’s denial of Mr. L.M.’s parenting time is ongoing so the statutory time limit set out in s. 61(1) of the FLA does not bar his motion for enforcement. Denial of Parenting Time of K.M.(2), L.C., and L.M.(2) [ 67 ] K.M.(2), L.C., and L.M.(2) went to live with Ms. D.R.M. on March 7, 2017, as a result of concerns as to Mr.

L.M.’s capacity to parent the children. Ms. D.R.M. asserts MCFD social workers initiated this process. Mr. L.M. claims the social workers threatened to have the police pick him up and put him in jail if he did not cooperate in transitioning the children into Ms. D.R.M.’s care. Mr. L.M. asserted he “never did anything wrong” and Ms. D.R.M.’s home was populated with people who smoked drugs, meaning marijuana. [ 68 ] MCFD did not recommence protection proceedings under the CFCSA. Still, in the s. 211 report, FJC McCuaig states (on p. 14), “MCFD is clear they do not support the children residing in Mr.

L.M.’s home.” No one on behalf of MCFD attended at or testified in the trial. None of the guardians compelled MCFD to do so. Whether the social workers acted officially or unofficially in March 2017, I have no doubt their involvement, caused Mr. L.M. to believe he had no choice but to relinquish the children into Ms. D.R.M.’s care. [ 69 ] In his May 15, 2017 affidavit, Mr. L.M. addressed the March 7, 2017, incident. He states at para. 6: They all accused me of swearing at the Children, spanking the Children, and regularly getting mad at them.

I do not yell or spank or swear at the Children . . . [ 70 ] In his oral evidence, Mr. L.M. denied physically or verbally abusing any of the children. He claims L.C.’s allegations against him are the product of M.M.’s machinations. For example, L.C. claimed her grandfather whipped them with a belt. Mr. L.M. testified he had never hit or spanked the children and does not even own a belt. He does not discipline the children if they misbehave; he simply talks to them. At most, he jokingly threatened to spank them. [ 71 ] In the s. 211 report, FJC states: Reports were made to MCFD against yelling at the children.

MCFD believe a part of this may be due to Mr. L.M. being hard of hearing. [ 72 ] P.M. says for him the worst part of being at his grandfather’s house is “getting yelled at.” He wishes his grandfather would be nicer. Mr. L.M. denies yelling at the children in the house. He says he does yell, but only when the children are in the yard and out-of- sight. He never swears at them. [ 73 ] I accept that L.C. alleged Mr. L.M. physically and verbally abused her and K.M.(2). In assessing the credibility of those allegations I have considered Mr.

L.M.’s unequivocal denials contradicted by L.C.’s allegations as recorded in the s. 211 report. I accept that Mr. L.M. likely yelled at the children on occasion; however, I do not find L.C.’s allegations of physical abuse credible. They are not corroborated by any of the children, particularly K.M.(2), who says his grandfather does not swear or get mad and treats him well. If Mr. L.M. was guilty of the abuse L.C. alleges, I am confident neither Ms.

D.R.M. nor MCFD would consent to K.M.(2), P.M., and L.M. (2) spending every weekend at his residence. [ 74 ] L.C. clearly wants to live with her mother in Vancouver with all her siblings as a family unit. Although Ms. D.R.M. does not want her children “scattering over BC like feathers”, she advocates that at some point M.M. should have all her children with her, even if it is in Vancouver. Because of the s. 211 interviews, L.C. must know Mr. L.M. wants her, K.M.(1), and K.M.(2) to return to live with him in [omitted for publication].

I am left with the impression L.C. is demonizing her grandfather as a strategy for family unification. [ 75 ] The question I must answer is whether Ms. D.R.M. was justified in denying Mr. L.M. his established parenting time for K.M. (2), L.C., and L.M.(2). The evidence before me is that both Ms. D.R.M. and Mr. L.M. believed MCFD removed K.M.(2), L.C., and L.M. (2) from Mr. L.M.’s care and placed them in Ms. D.R.M.’s. Given MCFD’s historic involvement in the lives of M.M. and M.C.S.M.’s children, Ms. D.R.M. and Mr. L.M. ’s belief was entirely reasonable.

Although MCFD did not commence any protection proceedings, I am satisfied the social workers were instrumental in the children’s relocation. [ 76 ] In my view s. 62(1)(

f) of the FLA is engaged. The circumstances giving rise to K.M.(2), L.C., and L.M.(2)’s transition from Mr. L.M.’s primary residence to Ms. D.R.M.’s constitute circumstances sufficient to justify changing the established parenting arrangement. Although I do not find M.M. and Ms. D.R.M.’s actions in removing the children from Mr. L.M.’s primary care wrongful, I do not condone their denying him any parenting time. Variation of Judge Milne’s March 7, 2012 Order [ 77 ] As set out above, Judge Milne’s March 7, 2012 order provided that K.M.(1), K.M.(2), and L.C.’s primary residence would be with Mr.

L.M. and P.M.’s with Ms. D.R.M. Mr. L.M. seeks its enforcement, which Ms. D.R.M. opposes. M.M. has never attended court in this matter.

[78] Although Ms. D.R.M. argues the children’s current parenting time arrangement should continue, she did not comply with Rule 2(2) of the Provincial (Family) Court Rules, which states: Applying to change orders or agreements

(2) To apply to the court for any of the following orders: (

a) an order to change, suspend or terminate an order that was made under the Family Law Act or the Family Relations Act; . . . a person must complete an application respecting existing orders or agreements in Form 2 and file it, together with 3 copies of it, in theregistry where the order or agreement to which the application applies is filed . . . : [79] Despite the lack of formal compliance with the Rules, Mr. L.M. and Ms. D.R.M. led evidence supporting their respectiveposition on whether or not Judge Milne’s March 7, 2012 order ought to be varied.

M.M. indicated in the s. 211 report her preference thatP.M. and K.M.(2) remain with Ms. D.R.M. M.C.S.M. and M.W. appear to want L.M.(2) in Mr. L.M.’s care. [80] Rule 20(2) permits a Judge to waive or vary the rules. It states:

(2) A judge may, at any time, (

a) waive or modify a time limit set by these rules or by an order of the court, even after the time limit has expired, (

b) waive or modify any service, delivery or notice requirement under these rules, and (

c) permit any other means of proof instead of that required by these rules. [81] As set out above, s. 199 requires a Court to ensure that a proceeding is conducted with “as little delay and formality aspossible.” I am satisfied that if I accept Ms. D.R.M.’s oral application to vary Judge Milne’s March 7, 2012 order to reflect the statusquo, it will not prejudice Mr. L.M. The two day hearing has been litigated as though this was the salient issue. After Ms. D.R.M.testified, I invited Mr. L.M. to call rebuttal evidence if he wished. He declined to do so.

In my view, to insist on formal compliance withRule 2(2) at this late date would unduly lengthen and delay these proceedings contrary to s. 199 of the FLA. Accordingly, I willadjudicate the variance issue on the basis of Ms. D.R.M.’s oral application. [82] Under s. 47 of the FLA, the Court may change the terms of an order respecting parenting arrangements where there has been achange in the needs or circumstances of the child.

It states: Changing, suspending or terminating orders respecting parenting arrangements 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since themaking of the order, there has been a change in the needs or circumstances of the child, including because of a change in thecircumstances of another person. [83] In Williamson v. Williamson, 2016 BCCA 87 , the Court of Appeal reaffirmed what is necessary to establish a materialchange in circumstance: 32 The first step in the analysis set out in Gordon v.

Goertz is to "determine whether there has been a material change incircumstances since the making of the prior order": Boychuck at para. 14. The Court in Gordon explained what is necessary to establish amaterial change in circumstances: [11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as anindirect route of appeal from the original custody order.

The court cannot retry the case, substituting its discretion for that of the originaljudge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued.... [12] What suffices to establish a material change in the circumstances of the child?

Change alone is not enough; the change must havealtered the child's needs or the ability of the parents to meet those needs in a fundamental way ...The question is whether the previousorder might have been different had the circumstances now existing prevailed earlier...Moreover, the change should represent a distinctdeparture from what the court could reasonably have anticipated in making the previous order. 33 At para. 13, the Court summarized what the applicant must establish before proceeding on the merits of the application: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. 34 Absent a material change in the needs or circumstances of the child, the inquiry can go no further.

It is only after this threshold ismet that the judge on the new application can embark on a fresh inquiry into the best interest of the children. [84]

Section 49 of the Act contains a general provision allowing a child's guardian to apply to the court for “directions respecting anissue affecting the child”. The Court has the discretion to make an order “it considers appropriate.” [85] Mr. L.M. argues the material change in circumstances cannot be those instigated by the party seeking variation. He offers noauthority for this proposition. In any event, I have already found M.M. and Ms. D.R.M. were justified in removing the children from

Mr. L.M.’s primary care. I reiterate this does not mean they were justified in denying Mr. L.M. any parenting time. [ 86 ] I find there has been a material change in circumstance since Judge Milne’s March 7, 2012, order, namely: a. K.M.(1) was sexually assaulted by R.J., a lodger who also resided in Mr. L.M.’s home. Mr. L.M. does not believe K.M.(1) even though R.J. was convicted and sentenced for the offence; b. K.M.(1) has not lived with Mr. L.M. for over 2 ½ years; c. K.M.(1) is now a teenager living with her mother in Vancouver; d. K.M.(1) does not want to continue to live with M.M.; e.

L.C. also lives with M.M. in Vancouver; f. L.C. has not been in Mr. L.M.’s care for 1 ½ years; g. L.C. is 10 and adamant she does not want to return to [omitted for publication] to live with her grandfather; and h. K.M.(2) has lived primarily with Ms. D.R.M. together with his brother P.M. and L.M.(2) for 1 ½ years. [ 87 ] I am satisfied there has been a material change in the condition, means, needs, or circumstances of K.M.(1), L.C., and K.M.(2) that was not foreseen or could not have been reasonably contemplated by Judge Milne who made the March 7, 2012 order, or the parties when they initially consented to it.

Issue #1: Should the Court order Mr. L.M. have primary residence of the children? [ 88 ] Sections 37(1) of the FLA provides that in making an order respecting guardianship and parenting arrangements, the court must consider only the best interests of the child. Section 37(2) sets out a number of factors the court must consider in determining the best interests of the child. This includes the child’s views, unless it would be inappropriate to consider them: FLA , s. 37(2)(b).

Section 37 states: 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. [ 89 ] I will consider each of these factors as they apply to each child. (

a) the child's health and emotional well-being K.M.(1) [ 90 ] K.M.(1) is 13 years old. In June 2018, she graduated from Grade 7 in [omitted for publication] l in Vancouver, BC. She likes art and baking with her mother and grandmother. She wishes she could go skating or to the beach, but her Vancouver family is always too

busy with domestic tasks. [ 91 ] K.M.(1) has suffered trauma in the form of sexual abuse by R.J. while they both resided in Mr. L.M.’s home. She would have been no more than ten years old at the time. This trauma is exacerbated by Mr. L.M.’s unshaken belief in the perpetrator’s innocence. In the s. 211 report, M.M. describes K.M.(1) as exhibiting signs of suicidal ideation, post-traumatic stress disorder, and depression. K.M.(1) received counselling in Vancouver in 2016.

FCJ McCuaig describes K.M.(1) as overly clinging with her mother and emotionally immature. [ 92 ] M.M. says K.M.(1) has a learning disability, which is being assessed. K.M.(1)’s school administrators describe her as “a sweet girl who came a long way in her growth from when she first arrived at school.” Ms. D.R.M. believes K.M.(1) is doing well and should remain in M.M.’s care. Mr. L.M. says K.M.(1) likes to read and colour, had good marks in school, and does not have any special needs. [ 93 ] I find that K.M.(1)’s health and emotional well-being militates toward her remaining in M.M.’s care.

I don’t believe that Mr. L.M. grasps K.M.(1)’s complex emotional, psychological, and educational needs, likely as a result of her 2 ½ year absence from his life and his refusal to accept she was sexually assaulted in his home. K.M.(2) [ 94 ] K.M.(2) is 11 years old and in Grade 7 at [omitted for publication]. M.M. describes K.M.(2) as a healthy, quiet and shy child who prefers arts and crafts to sports. K.M.(2) worries about hurting everyone’s feelings and getting into trouble. Mr. L.M. described K.M.(2) as average in school with no interests and no special needs.

In his view, K.M.(2) has very little energy and is unfit for sports. Mr. L.M. also claims K.M.(2) is a bully to small children and talks back. [ 95 ] Ms. D.R.M. says that K.M.(2) is interested in Lego, but behind in his reading which she and his teacher worked diligently to improve. Last year K.M.(2) took third place in the [omitted for publication] Science Fair. Although he gets along well with his grandmother and considers her nice, K.M.(2) says there is nothing he does at her house which is fun. He misses his after school programs. [ 96 ] I am left with the impression that Mr.

L.M. has not made much of an effort to get to know K.M.(2) or to cultivate K.M.(2)’s interests. K.M.(2) said he gets along pretty well with his grandfather, but does not do much with him. FJC McCuaig, who conducted home visits on May 15, 2018, observed that at Mr. L.M.’s home, K.M.(2) was talkative and told many pet and hunting stories. Still, FJC McCuaig did not observe much of a bond between Mr. L.M. and K.M.(2).

It is perhaps for this reason that FJC McCuaig concluded it was “difficult to ascertain if K.M.(2) wishes to live with his grandfather because his grandfather offered him an iPad or if he really does miss living at the home.” (Although Mr. L.M. purchased K.M.(2) an iPad, he does not permit K.M.(2) to take it to Ms. D.R.M.’s residence.) L.C. [ 97 ] L.C. is ten and in Grade 5 at [omitted for publication] school in Vancouver, BC. She is healthy, does well in school, and has no special needs.

Although L.C.’s physical health does not require her to reside with one guardian over another, I conclude her emotional well-being does. L.C. clearly wants to live with her mother in Vancouver together with all her siblings. In an effort to remain in her mother’s care, L.C. attempts to cover up M.M.’s misrepresentations while at the same time denounces her grandfather. L.M.(2) [ 98 ] L.M.(2) is four years old. She is physically healthy, however, Ms. D.R.M. says she needs to improve her language skills. Ms. D.R.M. has consulted a speech therapist who recommends L.M.(2) attend day care.

L.M.(2) also needs dental treatment. In order to secure these services, Ms. D.R.M. needs L.M.(2)’s birth certificate and status card. Ms. D.R.M. has been trying for some time to persuade Mr. L.M. to give her L.M.(2)’s birth certificate or even a copy of it, which he has failed or refused to do. Mr. L.M. admitted he had L.M.(2)’s birth certificate in his truck. At the end of the hearing he agreed to give Ms. D.R.M. a copy of the certificate. He offered no explanation why he has not done so previously. [ 99 ] Mr. L.M. testified that when L.M.(2) was a baby, B.M.(2) and W.M. helped care for her. Mr.

L.M. provided no evidence on what he considered to be L.M.(2)’s current medical, dental, psychological, or educational needs or how he intends to address those needs if she returns to his fulltime care. (

b) the child's views, unless it would be inappropriate to consider them K.M.(1) [ 100 ] K.M.(1) loves her mother and grandparents and is attached to her new step-father. She wishes to continue to live with her mother and spend as much time as she can with her grandparents. FCJ Counsellor writes: When asked how K.M.(1) likes living with her mom, she says, “It’s okay, I guess” . . .

If she was asked to live with her grandmother, K.M.(1) says it would be “fine.” If she was asked to live with her grandfather, she is more reticent, “It would be okay but I don’t like living there.” K.M.(2) [ 101 ] K.M.(2) says he misses his grandfather and would like to live with him and visit his mother in the spring and summer school breaks. K.M.(2) acknowledges both grandparents treat him well but finds Mr. L.M.’s home more fun, where he is allowed to stay up until 11 p.m. and play on his iPad. Ms.

D.R.M. helps him with his homework and M.M. helps him with “his problems and worries.” K.M.(2) would like more contact with his mother, who he finds difficult to reach by telephone.

L.C. [ 102 ] L.C. is happy living with her mother, where she feels safe. L.C. says there was nothing she dislikes about Ms. D.R.M.’s home, where she was fed and cared for. L.C. is not comfortable in Mr. L.M.’s home, which she described as a “demon house” and “the most dangerous place” she has ever been in her whole life. [ 103 ] Notwithstanding the fact he asked the Court to order the s. 211 report, Mr. L.M. says I should now disregard L.C.’s views because she has been manipulated to lie by her mother. I agree that L.C. either fabricated or embellished Mr.

L.M.’s acts of family violence; however, I find her dissembling likely arises from her own desire to remain with her mother rather than from M.M.’s manipulations. L.M.(2) [ 104 ] L.M.(2) is too young to have her views considered. (

c) the nature and strength of the relationships between the child and significant persons in the child’s life [ 105 ] The evidence indicates K.M.(1), K.M.(2), L.C., and P.M. have bonded in varying degrees with all their guardians. In Vancouver the children not only have their mother, but also their aunts and cousins, with whom they are close. In [omitted for publication], the children have their grandparents, aunts, uncles, and cousins. I also conclude from the s. 211 report the children have also bonded as siblings. [ 106 ] L.M.(2) has lived with either Mr. L.M. or Ms. D.R.M. since birth.

I have no reason to believe she does not have a strong relationship with both grandparents and her extended family. (

d) the history of the child's care [ 107 ] K.M.(1), K.M.(2), and L.C. have been in M.M.’s care until leaving for Vancouver in 2010. W.M. cared for them until June 2011, when they were placed with MCFD foster parents. Between March 2012 until their removal in March 2016 and 2017, the children lived primarily with Mr. L.M. Ms. D.R.M. says K.M.(1), K.M.(2), and L.C. went to live with Mr. L.M. in March 2012 because at the time, she did not have her own accommodations and lived with W.M. [ 108 ] Although Mr. L.M. had primary residence of M.M.’s three older children, MCFD arranged for B.M.(2), then Ms.

D.R.M., to provide them with afterschool care and dinner. The children returned to Mr. L.M.’s home before bedtime. [ 109 ] Ms. D.R.M. testified that while M.M. lived in Vancouver, she came to [omitted for publication] to visit the children every six months. When she did visit she stayed with W.M. At the hearing Mr. L.M. says M.M. visited the children twice in 12 years and never phoned to check on them. This cannot be accurate, given P.M. is only nine and M.M. lived in [omitted for publication] in 2010. Moreover, in his affidavit, Mr.

L.M. says M.M. had come to visit for two weeks in 2016. [ 110 ] Since March 2016, K.M.(1) has been in M.M.’s care, while L.C., K.M.(2) and L.M.(2) remained in Mr. L.M.’s care until March 2017. For a month after K.M.(1) went to live with M.M., Mr. L.M. tried to reach her by telephone to speak to L.C. and K.M.(2), without success. L.C. now lives with M.M.; K.M.(2), P.M., and L.M.(2) live with Ms. D.R.M. For over a year after L.C., K.M.(2), and L.M.(2) were removed from his care, Mr. L.M. had almost no contact with the children. The children were not allowed to visit or phone him.

M.M. refused to accept his calls. [ 111 ] Mr. L.M. still has difficulty reaching K.M.(1) or L.C. by telephone. He has a plan which allows him unlimited calling for a modest fee, but no one in M.M.’s household will answer the phone. [ 112 ] Since July 2018, Mr. L.M. has had parenting time with K.M.(2), P.M., and L.M.(2) on the weekends. P.M. and K.M.(2) take turns going to Mr. L.M.’s home on those weekends when Ms. D.R.M. is caring for B.M., L.M.(1).’s ten years old son who has special needs. Ms. D.R.M. keeps P.M. or K.M.(2) at home to keep B.M. company. [ 113 ] Ms.

D.R.M. says the girls are happy and doing well in M.M.’s care, which the s. 211 report corroborates. Ms. D.R.M. would like to see all M.M.’s children returned to their mother; however, acknowledges that M.M. needs larger accommodations before this can happen. In Ms. D.R.M.’s view, M.M. enjoys the comfort and support of J.R. and S.M. who live next door. [ 114 ] Ms. D.R.M. has taken the children to visit M.M. in the 2017 school break. Mr. L.M. has never gone to Vancouver to visit K.M. (1) or L.C. since they moved in with their mother. Mr. L.M. believed he was not welcome to do so. [ 115 ] Mr.

L.M. believes the children were happy in his care. He took them hunting, fishing, and berry picking. He kept abundant snacks, which the children could access whenever they wanted. When not in school, the children had their toys and entertainment. K.M. (1) had a box of books; L.C. had a dozen or so dolls; K.M.(2) had 200 Matchbook cars. The children had other toys as well. They watched television and played on the computer. Mr. L.M. purchased the children iPads. P.M. and K.M.(2) also like to play Nintendo and Xbox. While the children were occupied in their various activities, Mr.

L.M. did the laundry, weeded the garden, picked berries, or attended his smokehouse. Occasionally, the children would put his two small dogs on a leash and walk them around the yard, or kick a soccer ball about, but typically they did not engage in sports. [ 116 ] Mr. L.M. and Ms. D.R.M. have very different parenting styles. Mr. L.M. does not strike me as proactive in structuring the children’s time when they are in his care. Ms. D.R.M., on the other hand, ensures the children do their homework, improve their reading skills, participate in organized sports, and attend community cultural events.

She monitors their bedtime, takes them to the dentist, and L.M.(2) to the speech therapist. When she has extra money, Ms. D.R.M. takes the children on outings to the pool or the park, after which they go for lunch. In the evening, Ms. D.R.M. lies down with L.M.(2), reads her stories, and they sing songs. She is teaching the children [omitted for publication] culture.

[ 117 ] Despite their differences, Mr. L.M. and Ms. D.R.M. love and care for the children as their own. If all the guardians lived in the same community and cooperated with one another, I have no doubt the children would flourish. Unfortunately, M.M. resides in Vancouver and the family does not have the time, financial resources, or inclination to maximize the amount of time the children spend with their mother and grandparents. (

e) the child's need for stability, given the child's age and stage of development [ 118 ] Given their youth and tumultuous past, the children all need stability. They have been transitioned between Vancouver and [omitted for publication] and from home to home. They have had to adapt to new homes populated with different people and caregivers with significantly different parenting styles. At Mr. L.M.’s home, the children shared their home with lodgers, such as their uncles, R.J., and W.M.(2). At Ms. D.R.M.’s home, the children share their residence with a host of different people, including Ms.

D.R.M.’s nieces, D.M. and H.M., and D.M.’s boyfriend, V., and L.M.(1)’s son, B.M. At M.M.’s house, they live with their mother and her new husband, Mr. S. The girls have had had to adjust to a new community and new schools. Of all the guardians, only Mr. L.M. has a house spacious enough to comfortably accommodate all the children. [ 119 ] In my view ordering K.M.(1) and L.C. to return to live with Mr. L.M. in [omitted for publication] will exacerbate what has already been a chaotic life for these girls.

The situation is different with K.M.(2) and L.M.(2), as they would remain in the same community and attend the same schools. Nevertheless, Ms. D.R.M. has established routines with the children which are far more regulated than Mr. L.M.’s. She ensures the boys do their homework and monitors their bedtime and use of electronics. She enforces a quiet reading time each evening in an effort to upgrade K.M.(2)’s reading skills. Ms. D.R.M. has taken steps to enrol the boys in organized recreational activities, such as soccer and gymnastics. She is pro-active in improving L.M.(2)’s poor communication skills. Although Mr.

L.M.’s more casual parenting style is suitable for weekends, I am not convinced that ultimately it will benefit the children as much as Ms. D.R.M.’s more tailored approach. [ 120 ] In my view transitioning any of the children back to Mr. L.M.’s fulltime care would likely have a disrupting and destabilizing impact on their life, albeit in varying degrees. (

f) the ability of each guardian to exercise his or her responsibilities [ 121 ] Mr. L.M., Ms. D.R.M., and M.M. each have their strengths and weaknesses. Mr. L.M. and Ms. D.R.M. have significant experience raising children. Not only had they seven of their own children, at various times they have cared for a number of their grandchildren and great grandchildren. Mr. L.M. testified that sometimes he has eight of his grandchildren overnight. Having said that, Mr. L.M. and Ms. D.R.M. blame the other’s poor parenting for the reason some of their offspring have not prospered. [ 122 ] Mr. L.M. and Ms.

D.R.M. both smoke, but not generally around the children. None of the guardians are addicted to alcohol. Mr. L.M. quit drinking in 1990, Ms. D.R.M. quit ten years ago, and M.M. never started. Mr. L.M. has banned alcohol and drugs from his home. Ms. D.R.M. does not permit alcohol in her home; she does allow marijuana, but not in the children’s presence. I am not particularly concerned about Ms. D.R.M.’s habit of having a tobacco and marijuana cigarette in the evening when the children are in bed. [ 123 ] To some extent all of the guardians suffer from the debilitating effects of poverty.

This has adversely impacted their ability to adequately house the children and provide them with extracurricular activities or visits to the non-resident guardian. Both Ms. D.R.M. and Mr. L.M. take in lodgers, although Ms. D.R.M. says her residence is only temporary housing for her adult nieces. There is no doubt that M.M. is seriously under-housed. When they are with the grandparents, the children must share their living space with others, which alters the family dynamic.

When they are with M.M., they are overcrowded. [ 124 ] M.M. does not drink or smoke or use drugs, but in the past suffered from an inability to cope with her parenting responsibilities. She now has the support of her older sisters, J.R. and S.M., and her husband Mr. S. Currently, she seems to be handling her parenting responsibilities for K.M.(1) and L.C. K.M.(1)’s school administrators describe M.M. as an “involved and active mom” who helped in the classroom and brought K.M.(1) lunch.

All M.M.’s children love her; all want to live with her except K.M.(2) who prefers to live with his grandfather and visit his mother on school breaks. [ 125 ] M.M. would like to have all her children live with her. FJC McCuaig observes that M.M.’s home is emotionally safe for all her children, but too small for four people let alone six. If she is going to reunite her family, M.M. will need more spacious accommodation.

I gather this is not a financial option for her at this time. [ 126 ] M.M. is far closer in age to the children and presumably better physically able to meet the demands of parenting young children. FJC McCuaig comments that M.M. is secretive and mistrustful of authorities. She pretends she is unmarried and unemployed which poses a challenge for those trying to assist her. M.M. obviously has difficulty making ends meet financially, however, as the VACFSS social workers observed, she is doing the best she can with what she has. [ 127 ] Mr. L.M. is 67 years old.

He retired ten years ago from his job as a utilities maintenance operator. He does have some health and mobility issues. He smokes and suffers from a heart condition. Mr. L.M. has lived at his current residence at [omitted for publication], BC since 1980. It is an older home with five bedrooms and two bathrooms, but needs renovating. K.M.(2) had his own bedroom; L.C. and K.M.(1) shared a bedroom, although most of the time they just used their bedroom for play and at night slept on a mattress in Mr. L.M.’s room. [ 128 ] Although he received some subsidies for a while, Mr.

L.M. has been caring for the children on his pension income since 2016. [ 129 ] In the past Mr. L.M. has involved the children in fishing, hunting, and processing fish in his smokehouse. I do not know how often he involves the children in these activities. At the hearing, Mr. L.M. described taking K.M.(2) moose hunting last winter. Ms. D.R.M. testified Mr. L.M. no longer fishes or hunts and A.M. has taken over these duties along with the responsibility of teaching these traditional skills to his nephews. K.M.(2) and P.M. earned spending money this summer packing fish for A.M.

[ 130 ] I gather Mr. L.M. drives and has a vehicle and Ms. D.R.M. does not. [Omitted for publication] is relatively remote, so having to depend on others for transportation is a significant impediment to caring for three or more active children. [ 131 ] Ms. D.R.M. went back to school as an adult and studied Early Childhood Education. She attended the University of Northern British Columbia and is now qualified to teach the [omitted for publication] language and culture in the classroom. It is apparent that Ms.

D.R.M. values education and is making a concerted effort to ensure the children progress at school and learn their traditional culture. [ 132 ] Ms. D.R.M. has cared for P.M. since his infancy. Although he is not included in Mr. L.M.’s motion, the fact that P.M. has thrived in Ms. D.R.M.’s care speaks to her parenting capacity. P.M. is reported to be healthy, doing well in school, pro-social, and interested in sports. Ms. D.R.M. supports P.M.’s interest in extra-curricular activities. Although Mr. L.M. has weekend parenting time with P.M., they do not seem to have cultivated much of a relationship.

In the s. 211 report P.M. is quoted as saying, “there is nothing fun he has ever done with his grandfather.” FJC McCuaig noted: “P.M. appeared to be the barometer of the family and was willing to state when things seemed unjust.” [ 133 ] I am left with the impression that when the children are at Mr. L.M.’s home, they are free to entertain themselves as they please, albeit within limits. They do not have assigned chores other than to clean up their toys and put their soiled clothes in the laundry basket. If they were bored, K.M.(1) and L.C. might help with the dishes. Mr.

L.M. did most of the housework early in the morning before the children awoke and while they were at school. K.M.(1) told FJC McCuaig that she helps her grandfather clean up because “he has medicine because he can’t really move his bones.” Mr. L.M. said this is a lie, but admits he was on disability for four or five years with a broken hip. [ 134 ] The children do not appear to go on many outings with their grandfather or attend organized activities. Mr. L.M. purchased K.M. (1), K.M.(2), and L.C. iPads, which they enjoy until 8:30 p.m. on school nights, after which they get their night time snack and go to bed.

I gather from K.M.(2)’s evidence Mr. L.M. allows the children to stay up later on weekends. [ 135 ] Ms. D.R.M. takes Synthroid for a thyroid condition and Gabapentin for arthritis, but maintains she is otherwise healthy. She earns money from teaching, child care, her homemade baked goods and preserves. K.M.(1) remembered fondly baking cookies and making jam with her grandmother. M.M. supports Ms. D.R.M. continuing to care for K.M.(2) and P.M.

FJC McCuaig, writes, “P.M. and K.M.(2) by all accounts are safe and secure in the grandmother’s home under her care.” [ 136 ] I find that all the guardians are capable of exercising their parenting responsibilities with some external assistance. Depending on the guardian, this includes assistance with finances, housing, transportation, and afterschool care. In my view, Ms. D.R.M. vis-à-vis Mr. L.M., has a more modern approach to parenting. She raises the children with an eye on their future. Mr. L.M. appears content to see the children happy. Ms.

D.R.M. strives to provide the children with opportunities that will shape and improve their future prospects. (

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 [ 137 ] FJC McCuaig noted, “The details of the M. family history, as reported by the multiple parties, is varied and contradicted by other family members.” Ms. D.R.M. claims Mr. L.M. physically, mentally, and emotionally abused her while they were married. In 1990 she left Mr. L.M. to escape the abuse. FCJ McCuaig reports Mr. L.M. and Ms.

D.R.M. had a “violent and toxic relationship.” She writes, “It is all the parties’ perspective there is a history of family violence and current concerns related to family violence.” At the hearing Mr. L.M. acknowledged he and Ms. D.R.M. did not always get along, but denies there was any violence or yelling or screaming. [ 138 ] Mr. L.M. accuses Ms. D.R.M. of using drugs and allowing others to use drugs in her home. He claims three of his grandchildren and five of his children take drugs. The drug to which he refers is marijuana.

FCJ writes on page 2 of the s. 211 report: Each party to this family file accuses the other of alcohol abuse, drug abuse, drug dealing and neglect of the children and deny that they are the perpetrator of any of the above. [ 139 ] K.M.(1) is a victim of family violence as a result of having been sexually assaulted by R.J. M.M. claims Mr. L.M. was a “violent drunk who made crude and sexual comments to her when she was a teenager.” Mr. L.M. denies anyone ever sexually abused any child in his home. On the contrary, he accuses Ms.

D.R.M. of allowing their daughters to be sexually abused by her brothers (who are now deceased). [ 140 ] I conclude the M. family did experience family violence in the past, but it has not tarnished the children’s regard for their guardians. I find L.C.’s bias against her grandfather is fuelled by her desire to live with her mother rather than her grandfather’s misconduct. P.M. says both grandparents yell at him, which he doesn’t like. Ms. D.R.M. admits she yells at times, Mr. L.M. denies yelling, except outside where the children are out of his line of sight. [ 141 ] Ms.

D.R.M. is very concerned about the children’s safety. She is especially vigilant in safeguarding the children from sexual abuse. She is already teaching L.M.(2) that no one is permitted to touch her private parts. [ 142 ] I am not convinced on a balance of probabilities that any of M.M.’s children or L.M.(2) have been wilfully subject to family violence at the hands of any of the guardians. Nevertheless, I am deeply troubled by Mr. L.M.’s reaction to K.M.(1)’s allegations of sexual abuse by R.J. When asked if any of the children were ever sexually abused in his home, Mr.

L.M. said, “No” that R.J. was sentenced to 16 months but did not do it. When he took K.M.(1), L.C., and K.M.(2) to the police station for interview, Mr. L.M. was upset they were questioned without his consent and outside his presence. When he got home, he interrogated K.M.(1) as to what questions she was asked and how she responded, and where and how R.J. touched her. He also demanded to know why the Ministry worker who interviewed her gave her candy. Mr.

L.M. concluded the reason the children were taken from his care was because he did not believe K.M.(1) was sexually assaulted. [ 143 ] In the s. 211 report, FJC McCuaig states that according to MCFD it reported and investigated an incident of Mr. C. punching M.M. in the face. Mr. L.M. testified this was not true. He described going to Mr. C. and M.M.’s house and witnessed M.M. screaming at

the kids and slapping Mr. C., who was washing the dishes. When he asked her why she did that, M.M. started swearing at Mr. L.M. [ 144 ] I conclude that many of the allegations of family violence are dated, some embellished and others fabricated. As FJC McCuaig observed, the “M. Family is a complicated family with many divergent offshoots and stories.” I find it implausible that all the allegations of family violence raised in the context of this hearing are contrived. The most recent and disconcerting incident of family violence is R.J.’s sexual assault against K.M.(1). I cannot see how Mr. L.M. can possibly protect the children from dangers he refuses to acknowledge exist. (

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 [ 145 ] I have no doubt that all the guardians yell at the children from time to time, most caregivers do. I do not find, however, any of the guardians directly responsible for significant physical, psychological, or emotional abuse. I am concerned that Mr. L.M.’s hostility toward MCFD social workers, Ms. D.R.M., and M.M. may impair his ability to fairly assess the children’s concerns, particularly when they are about him or others he has an interest in defending. (

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 [ 146 ] K.M.(1) and L.C. say that her mother and grandmother get along; however, her mother and grandfather do not. FJC McCuaig comments that none of the children report hearing negative comments from one guardian about the other, yet quotes L.C. as complaining Mr.

L.M. says “bad things” about her mother and grandmother which she finds upsetting. [ 147 ] Mr. L.M. and Ms. D.R.M.’s ability to cooperate is episodic. The shining example of the guardians’ ability to cooperate is Judge Milne’s March 7, 2012 consent order. Also, to his credit, Mr. L.M. has continued to provide Ms. D.R.M. with fish and moose meat post- separation and he has consented to her providing subsidized afterschool care for the children before they were removed from his home in March 2017. After this event, Mr. L.M.’s ability to cooperate with Ms.

D.R.M. and M.M. was so marginal he did not have any contact with the children until July 2018. It has only been since the 2018 school summer break that Mr. L.M. has had any parenting time with K.M.(2), P.M., and L.M.(2). He still has no contact with K.M.(1) and L.C. [ 148 ] Mr. L.M. has attempted to facilitate telephone calls between the children and K.M.(1) after she went to live with M.M. Unfortunately, M.M. seems to have organized her affairs to frustrate any such contact.

I conclude there is no love lost between M.M. and her father. [ 149 ] Another troubling impact of the guardians’ inability to cooperate in the best interests of the children is the fact that K.M.(2) did not know P.M. was his brother until March 2017. Until last year, when he came to live with Ms. D.R.M., K.M.(2) thought P.M. was his cousin. [ 150 ] Ms. D.R.M. is able to cooperate with M.M. and MCFD. M.M. is hopeful that someday all her children will live with her, an objective Ms. D.R.M. endorses. Mr. L.M., however, has no intention of reuniting M.M.’s children as a family unit in the foreseeable future.

He simply wants to reinstate the parenting arrangements which existed prior to the children being removed from his care. I conclude it is for this reason he refused to give Ms. D.R.M. L.M.(2)’s birth certificate even though it was critical to securing L.M.(2) a place in day care and obtaining dental services. [ 151 ] I fear the history of relationships among the guardians has significantly impaired their ability to work together in the best interests of the children. (

j) any civil or criminal proceeding relevant to the child’s safety, security, or well-being [ 152 ] The only relevant recent court proceeding is R.J.’s conviction and sentencing for sexually abusing K.M.(1). In his closing submission, counsel for Mr. L.M. says the Court had too little information about R.J.’s criminal proceedings to give them much weight even though both Mr. L.M. and Ms. D.R.M. testified R.J. was convicted and sentenced for sexually assaulting K.M.(1). In fact, Mr. L.M. testified that a week prior R.J. was sentenced to 16 months in jail for the offence.

FJC McCuaig indicated in the s. 211 report R.J. was to be sentenced on September 11, 2018. R.J.’s conviction for sexually assaulting K.M.(1) is a matter of public record. The offence occurred in Mr. L.M.’s home at a time when R.J. and the children were living there. In order for R.J. to be convicted of the offence, the Court had to be satisfied beyond a reasonable doubt as to his guilt. I am not prepared to ignore such crucial evidence simply because Mr. L.M. chooses not to believe it. Conclusion on Issue #1: Should the Court order Mr.

L.M. have primary residence of the children? [ 153 ] It is disconcerting how Mr. L.M. was summarily ousted from the children’s lives given his sacrifice and commitment to their upbringing. I cannot condone M.M. and Ms. D.R.M.’s failure or refusal to ensure the children maintained contact with their grandfather, or in L.M.(2)’s case, great grandfather.

Nevertheless, upon considering the statutory criteria set out in s. 37 of the FLA in the circumstances of this case, I conclude it is in the best interests that K.M.(1) and L.C. remain living primarily with their mother and that K.M.(2), P.M., and L.M.(2) remain living primarily with Ms. D.R.M. Mr. L.M. has asked the Court not to otherwise specify parenting time beyond determining the children’s primary residence and ordering reasonable and generous parenting time. Conclusion on Issue #2: What order, if any, should the Court make with respect to L.M.(2)? [ 154 ] Neither Ms. D.R.M. nor Mr.

L.M. is L.M.(2)’s legal guardian. Ms. D.R.M. has L.M.(2) in her full-time care during the week and Mr. L.M. has her on the weekends. Clearly, L.M.(2) needs those who actually parent her to have legal authority to do so. Pursuant to s. 51 and Rule 18.1(2) I appoint Ms. D.R.M. and Mr. L.M. as L.M.(2)’s interim guardians for three months to give them an opportunity to perfect their respective application.

Summary of Orders [ 155 ] Judge Milne’s March 1, 2012 order will be varied as follows: a. M.M. will have primary residence of K.M.(1) and L.C.; b. Ms. D.R.M. will have primary residence of P.M. and K.M.(2); and c. Mr. L.M. will have reasonable and generous parenting time with K.M.(1), L.C., and K.M.(2) at such dates and times as agreed among the guardians; [ 156 ] With respect to L.M.(2), I make the following orders: a. Ms. D.R.M. and Mr. L.M. will have interim guardianship of L.M.(2) for three months commencing immediately; b. L.M.(2)’s primary residence will be with Ms. D.R.M.; and c. Mr.

L.M. will have reasonable and generous parenting time with L.M.(2) at such dates and times as agreed between her guardians. _____________________ The Honourable J.T. Doulis Provincial Court of British Columbia