T.D.(1) v. T.D.(2) and A.N. Date:, 2017 BCPC 201

Citation: T.D.(1) v. T.D.(2) and A.N. Date: 20170629 2017 BCPC 201 File No: F16901 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.D.

(1) APPLICANT AND: T.D.

(2) AND A.N . RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. McQUILLAN Appearing in person: T.D.

(1) Appearing in person: T.D.(2) and A.N . Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 11, 12, June 7, 15, 2017 Date of Judgment: June 29, 2017 [ 1 ] The applicant, T.D.(1) (the “Grandmother”), is the maternal Grandmother of T.A.D., born [omitted for publication], and O.T.N., born [omitted for publication]. The Respondent, T.D.(2) (the “Mother”) is the Mother of both children. A.N. (the “Father”) is the biological Father of O.T.N. and has stood in the place of a parent for T.A.D. since he was an infant. T.A.D.’s biological Father is not involved in his life in any way.

In this proceeding, the Grandmother is seeking an order for specified contact with the children. Specifically she seeks to have unsupervised contact with them 3 to 4 times per month, for a period of 3 to 4 hours, as well as one overnight visit every month or second month.

She also seeks additional holiday contact during Christmas and Easter as well as 3 to 4 consecutive days during the summer. [ 2 ] Both the Mother and the Father oppose any order for contact on the basis that contact has had and continues to have a negative impact on the mental health of both T.A.D. and the Mother, and the children, and in particular T.A.D., do not enjoy being forced to see their Grandmother and frequently express their wishes to not see her.

In addition, they argue that the amount of contact time sought by the Grandmother is unreasonable. [ 3 ] Currently, the Grandmother sees the children for two supervised visits each month for a period of 3 hours each, pursuant to an interim consent order entered into at a Family Case Conference on November 10, 2015. Background [ 4 ] The Grandmother described having a very close relationship with the Mother throughout her childhood and teenage years. She separated from the Mother’s Father when the Mother was 2½ years old and thereafter raised her as a single parent.

She describes her relationship with the Mother’s Father as having been a physically abusive one, which was the reason for their separation. She describes herself as being a very hands-on parent with the Mother, who was her only child. The Grandmother was trained and employed as a registered nurse when the Mother was young. [ 5 ] The Grandmother states that she was hospitalized twice when the Mother was young. One was for surgery, which resulted in her having to be off work for 6 weeks.

The second hospitalization occurred when the Mother was 8 years old when the Grandmother admitted herself to the hospital for depression, stating that she felt mildly suicidal. She remained in hospital for 3 days. [ 6 ] Subsequently, the Grandmother was diagnosed with Chronic Fatigue Syndrome, Fibromyalgia and a bladder condition. Her declining health forced her to leave her employment as a nurse at [omitted for publication] and to do paediatric home care.

Over time her deteriorating health led to her reducing her practicing hours which eventually led to her being unable to renew her registered nurse status and going on long term disability. She has been on long term disability since 2004 or 2005. [ 7 ] The Mother describes her relationship with the Grandmother while growing up somewhat differently. She states that they had a good relationship when she was young but as she got older the relationship became more difficult. She states that she spent a lot of time alone due to the Grandmother’s health problems.

She states that there was little structure at home and she missed a lot of school due to staying up late at night and because of her own anxiety issues. When she was 13 or 14, while going through a particularly tumultuous time with the Grandmother, she decided to move in with her Father. She states that lasted for about 6 months (the Grandmother says it lasted only one month) and then, following a dispute with her Father, she returned to live with the Grandmother. [ 8 ] When she was 16 years old the Mother became pregnant with T.A.D.

The Grandmother supported her through her pregnancy and they continued to reside together. After T.A.D. was born in November 2006, the Mother returned to high school to complete grade 12 and the Grandmother cared for T.A.D. while the Mother was at school. After she completed high school, the Mother became employed and the Grandmother continued to care for T.A.D. for considerable periods of time while the Mother was at work or spending time with friends. [ 9 ] The parties disagree somewhat as to what was the nature of caregiving arrangements during the next couple of years.

The Grandmother states that she became T.A.D.’s primary caregiver and remained in that role until T.A.D. was almost 3 years old. She states that T.A.D. stayed with her for periods of up to two weeks at a time while the Mother stayed with her boyfriend or stayed at her Father’s home. [ 10 ] The Mother states that she was struggling with being both a teenager and a Mother at that time and felt pressured by the Grandmother to let her spend a lot of time with T.A.D. She states that on one occasion the Grandmother phoned her and told her that if she could not see T.A.D. more often, she did not want to live.

She states that the Grandmother routinely pressured her to let her see T.A.D. more often. She does not agree however that the Grandmother cared for T.A.D. during this period as much as she asserts, although she acknowledges that T.A.D. was sometimes with her for as long as 5 days at a time.

In any event, I find that the Grandmother did spend significant periods of time caring for T.A.D. during the first 2 to 3 years of his life, which is not surprising given the Mother’s age at the time. [ 11 ] When T.A.D. was 2½ years old, the Mother moved out of the Grandmother’s home with T.A.D. and moved in with her boyfriend, A.N. The Mother states that she did so, in part, because the Grandmother was not letting her raise T.A.D. the way she wanted to and because she needed to create some space from the Grandmother.

Following this move, the Grandmother continued to look after T.A.D. sometimes, although far less than she had previously. The Mother states that she continued to struggle with creating boundaries that the Grandmother would respect. The Grandmother would regularly show up unannounced and would not respect the Mother’s own

family time with T.A.D. and her spouse. [ 12 ] The Mother then became pregnant with O.T.N., who was born on [omitted for publication]. After he was born, the Grandmother would sometimes care for both children at the Mother’s home to help out. The Mother states that they had many disagreements over parenting issues, which the Grandmother acknowledges, although she testified that she never interfered in their parenting. Both parents testified that the Grandmother regularly undermined their discipline and parenting strategies.

One example was if T.A.D. was put on a “time out” by his parents, the Grandmother would approach T.A.D. with tears in her eyes and tell him that she thought the parents were being unfair to him. [ 13 ] When T.A.D. was 2 years old he began to exhibit increasingly pronounced behaviour problems. He was becoming angry and violent and was unable to regulate himself. By the time he was 5 the behaviour problems were noticeable to others and could no longer be dismissed as just a phase. The Mother consulted many doctors and counsellors.

T.A.D. was eventually diagnosed with a number of health disorders, including Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiance Disorder (ODD), Anxiety Disorder, Speech Sound Disorder and unspecified Neurodevelopmental Disorder. The behaviours associated with these illnesses continue to present in T.A.D. and challenge the parents.

Surprisingly, the Grandmother testified that she never observed any of these behaviours that the Mother complained of and which led to these various diagnoses. [ 14 ] The Mother testified that she has always had challenges getting the Grandmother to respect her boundaries. She states that when she was 8 years old her Mother came into her room and told her that she wanted to kill herself. She says that she made similar suicidal statements to her approximately every 6 months once she became a teenager and even more frequently once she became an adult.

The Grandmother would often make these statements when she was not getting what she wanted, which was often related to her view that she was not getting enough time with the children. The Grandmother denies having made such statements, other than the one occasion when the Mother was 8 years old. [ 15 ] The Mother states that she was terrorized by the Grandmother showing up at her home unannounced late at night, sometimes between 10:00 and 11:00 p.m. and knocking on her window.

She would then come in, sometimes under the auspices of having to use the washroom, and sometimes intentionally waking up the children to speak to them late at night. The Mother says that these late night interactions were a trigger for her anxiety. The Mother had suffered from anxiety since she was a child but when she was 18, her then boyfriend locked her in a hotel room and tried to choke her to death. Since then, she has struggled more with anxiety and depression. She states that her relationship with the Grandmother was unhealthy and compounding her depression and causing her to have panic attacks.

The Mother has been diagnosed with generalized anxiety disorder; mild to moderate chronic PTSD; social anxiety disorder and major depressive disorder. [ 16 ] The Mother states that she had many conversations with the Grandmother asking her to not stop by unannounced and that she needed to respect her boundaries, specifically around family time, parenting approaches and the children.

In early April 2014, she had another lengthy conversation with the Grandmother about these issues and her boundaries and she felt that the conversation had ended on a positive note with the Grandmother having an understanding of her expectations. [ 17 ] However, on April 13, 2014, it became evident that there was no such understanding. On that evening, the Grandmother had texted the Mother asking if she could see the boys. The Mother responded that she could not but that she would be able to see them the next weekend and asked that she not come by unannounced for a visit.

However, the Grandmother then walked over to the Father’s home (the Mother and Father were then living separately although continuing to be a couple) where she knew the children were at that time so that she could just drop by and see them briefly. [ 18 ] When she arrived there, the Mother was in the driveway and in the process of putting the children in the car. What happened next is not entirely clear as the Mother and Grandmother have different recollections.

What everyone agrees upon though is that the Mother was clearly upset by the Grandmother showing up when she had just asked her not to, and that Grandmother was upset about the Mother’s reaction. The Mother says that the Grandmother used some profanities and then asked T.A.D. to get out of the vehicle so that she could speak to him. T.A.D. got out of the vehicle and proceeded to physically attack his Mother, kicking and hitting her and then going to the Grandmother who then carried T.A.D. to the end of the driveway. The Mother then called to the Father for help.

He then took T.A.D. from the Grandmother and buckled him back into the vehicle. [ 19 ] With both boys secured in the back seat of the car, the Mother got into the passenger seat and the Father got into the driver’s seat to leave. Both boys were crying. However, as the Father was closing the driver’s side door, the Grandmother tried to hold the door open with her arm. The Father then grabbed her arm to push it away.

The Grandmother screamed at him saying, “Don’t you fucking touch me.” The Grandmother denies that she was attempting to hold the door open when this occurred and says that the Father simply grabbed her arm and dug his nails into it. However, I prefer the evidence of the parents over that of the Grandmother with respect to what occurred on this date given their consistent accounts. It was apparent from the accounts of all three parties that the Grandmother had overstepped the clearly outlined boundaries on this occasion and was unable to withdraw from or minimize a crisis that was of her own making.

Perhaps most surprising is that at the end of this clearly traumatic episode for all involved, the Grandmother asked T.A.D., then age 7, to text her in the next couple of days. [ 20 ] After this incident, with the assistance of her counsellor, the Mother resolved that she needed to remove the Grandmother from her life.

The next day she sent a text message to the Grandmother saying that what had happened was not acceptable and asking her to not come to her home or anywhere she or the children might be until the Mother advises that she can feel safe again. [ 21 ] The Grandmother testified that she reached the belief that the Mother was trying to break the bond between the children and her through this forced estrangement. [ 22 ] Thereafter, the Grandmother made repeated requests to see the children, all of which were turned down by the Mother, who stated that she needed space.

After a few weeks, the Grandmother decided to drop by the Mother’s home, in order to drop off Easter presents for the children. When she was met at the door by the Mother, the Grandmother indicated that she wanted to see the boys as she missed them so much. T.A.D. called out from inside the house and the Grandmother called back to him. While the Grandmother denies

that this was a hostile encounter, the Mother says that the Grandmother blocked the door from being closed until the Mother threatened to call the police. [ 23 ] In June 2014, the Mother describes that she was sitting in her car in her carport one evening and saw a vehicle, which she recognized as the Grandmother’s, drive by. She says she had been instructed by the police to call them if that happened and on this occasion she did so. The police attended at the Grandmother’s home and asked her to stay away.

The Grandmother denies that she was driving by the Mother’s home on this occasion. [ 24 ] Sometime after that the Mother accepted an invitation to her maternal grandparent’s home for a dinner with extended family. She agreed to attend with the children on the condition that the Grandmother not be present. When she attended she states that her Aunt, V.C., who is the Grandmother’s sister, became angry and confrontational with her about the rift between the Mother and the Grandmother. At one point, V.C. yelled out that “[A.N.] is not even [T.A.D.’s] real father”. T.A.D. was within earshot during this exchange.

T.A.D. had never been told that A.N. is not his biological father. V.C. clearly did not appreciate the sensitivity around this issue for T.A.D. In her testimony, V.C. further stated “T.A.D. has had a new father every 3 years. He doesn’t even know who he must call ‘Dad’”. [ 25 ] On May 8, 2015, the Grandmother commenced these proceedings by filing an application seeking contact with the children. [ 26 ] In June 2015, shortly after she commenced these proceedings, the Grandmother went to T.A.D.’s school to see him.

She acknowledged in cross examination that the Mother had expressly told her to not attend anywhere the children might be. However, her excuse for doing so was that the warning had been given a year earlier. The school principal called the Mother and the police were called. The explanation she gave for going to the school was she did not know what T.A.D. might be thinking about her absence and she wanted to tell him that she loved him.

Although her desire to see T.A.D. is understandable, clearly this was another poor exercise of judgment given what she had been told by the Mother. [ 27 ] The parties attended a Family Case Conference on November 10, 2015. At that time they were able to agree to an interim consent order which provided that the Grandmother would have 3 hour supervised visits with the children on alternate Tuesdays. Subsequent Family Case Conferences in February and May 2016 did not result in any significant changes to the contact arrangements and the matter was set for trial. Visits have continued on that

schedule to the present. During the first several months, the visits were supervised by the Mother and Father. The supervisor then changed to J.D., who is currently the partner of the Mother. Since February 2017, the Mother’s friend, M.W., has supervised the visits. [ 28 ] The parties’ impressions of how well the visits have gone to date do not align. From the Grandmother’s perspective the visits have largely gone well, with the children happy to see her and to spend time with her. She says that at least on one occasion T.A.D. asked if he could stay overnight with her.

An e-mail exchange between the Grandmother and T.A.D. that occurred just after the supervised visits began confirm a loving relationship with T.A.D. expressing affection towards his Grandmother and enthusiasm about the visits. [ 29 ] The Grandmother says however, that in recent months T.A.D. has been making comments that have concerned her such as that Grandma is bullying him, Grandma is forcing him to go on the visits, that he is scared of her and that she might kidnap him. She says that for some visits he is cuddly while on others he is distant and rude to her.

During a recent visit she says that T.A.D. told her, “You used to be good and now you are bad”. In cross examination, the Grandmother acknowledged that T.A.D. has said to her several times on visits that he does not want to come on the visits. She says however, that she believes that T.A.D. has been fed information to cause him to make such statements and that T.A.D. really wishes to spend more time with her, despite what he says. [ 30 ] At one visit when T.A.D. was saying that he did not want to come to the visits anymore, the Grandmother told him that he did not have to come on the visits.

The Mother states that this has now created problems for her as she is now in the position of being seen by T.A.D. as forcing him to go on the visits against his will, as she is required to comply with a court order for the Grandmother’s contact. Surprisingly, the Grandmother testified that she was not aware that the order made at the Family Case Conference was legally binding. [ 31 ] In cross-examination, the Grandmother also acknowledges that she did refer to the court proceedings in the presence of the children on one occasion.

She also acknowledged that during another visit she read out to the children a two page letter that was intended for the Mother. She states that she does not believe she was putting the children in the middle of the dispute in doing so. These are further examples of the Grandmother’s lapses in judgment in relation to the children. [ 32 ] The Mother believes that the visits have not gone well and more importantly, have had a negative effect on the children. Shortly after the visits began, the Mother states that O.T.N. began wetting the bed, which he had not previously been doing. He began having night terrors.

That has continued to date, although less frequent. Since the visits began, he has begun having tantrums that can last all day. He has also become physically aggressive and often lashes out at others around him, including T.A.D., which he had not done before. The Father had a more tempered view, testifying that the boys’ behaviour has deteriorated “a little bit”, since the visits began. [ 33 ] The Mother testified that T.A.D.’s behaviour challenges improved after contact with the Grandmother was terminated in April 2014.

Correspondence from his teacher in June 2014 confirms that his behaviour had recently improved at that time. In October 2014, he was accepted into a full time 5 week outpatient program at BC Children’s Hospital designed to address the severe behavioural issues that he had been exhibiting for several years. Upon completion of that program, the Mother states that T.A.D.’s behaviours were significantly improved. However, she states that once visits with the Grandmother were resumed in November 2015, his behaviours deteriorated once again.

Correspondence from the school confirmed numerous incidents of him having physical altercations with other children during this period. According to the school, those behaviours continue to be a challenge for T.A.D. The Mother states that she believes the decline in his behaviour is largely due to the Grandmother’s contact with him. [ 34 ] At the outset of the visits, the Grandmother was provided with a two page document titled “Strategies for T.A.D. and O.T.N.” which sets out a number of strategies for managing the children on the visits. Both parents state that they felt this was necessary given

what they saw as the Grandmother’s history of undermining their approaches to parenting. Both parents also testified that theGrandmother does not follow the strategies that are described in the document that they provided to her before the visits began. Theyalso say that she does not respect their guidelines for health and safety such as feeding gluten to T.A.D. when he has a gluten allergy. The Grandmother’s response to that issue was to send the Mother an

article suggesting that gluten allergies are over diagnosed. TheMother also testified that the Grandmother does not respect T.A.D.’s boundaries on the visits and frequently insists on hugs and affectionthat he does not wish. [35] J.D. supervised the visits from May 2016 to January 2017. He has been dating the Mother since early 2016 and is the Father ofthe Mother’s child that she gave birth to during this trial. He testified that T.A.D. exhibits severe behaviours beginning 3 to 4 daysbefore visits and for some time after the visits.

He also states that O.T.N. begins throwing tantrums and becomes attention seeking whenhe becomes aware of an upcoming visit with the Grandmother. [36] J.D. testified that the Grandmother does not respect the children’s boundaries on the visits. In earlier supervised visits, theGrandmother would hug the boys and the boys would not oppose it. However, over time they began to assert themselves and tell theGrandmother that they did not want her to hug them. He stated that T.A.D. tells him frequently before and during the visits that he doesnot want to be there.

He also stated that the Grandmother provides them with gifts on the visits, which has led to them expecting giftsand treats for doing anything when at home. However, the gifts the Grandmother provides on visits are little more than birthday gifts ontheir birthdays, knick knacks, potato chips, drawings and a fidget spinner.

These are hardly the kinds of gifts that should create anyentitlement and are what one would normally receive from a grandparent. [37] J.D. did acknowledge in cross-examination that although the boys are very anxious and oppositional to visits in advance, whenthey walk in the door to the Grandmother’s home they appear to be happy. He explains that apparent inconsistency by opining thatT.A.D. feels like he has to be happy on the visits, and he appears happy there because the Grandmother does not have any boundaries inher home.

An example of this was when the boys hit each other with foam swords and the Grandmother does not intervene when theyget too rough. He also acknowledged that on one occasion T.A.D. told the Grandmother that he keeps the birthday card he received fromher beside his bed as he wants it close to him. [38] M.W. has been the supervisor since February 2017. She is a long-time friend of the Mother and spent much time with thechildren prior to acting as visit supervisor. She testified that prior to the estrangement between the Mother and the Grandmother,T.A.D.’s behaviour had been deteriorating.

She says that the Mother’s mental health was also declining as she struggled with herrelationship with the Grandmother and managing T.A.D.’s behaviours. M.W. testified that she often observed the Grandmotherundermining the parenting strategies the Mother was attempting to implement. She says that she often saw the Grandmother crying toT.A.D., telling him that his parents were being too hard on him.

In the six months prior to the estrangement, she observed the Mother tohave frequent panic attacks, which were often related to, or triggered by the Grandmother showing up unannounced at the Mother’shouse or at places the Mother was planning to be. After April 2014, when the Grandmother ceased to be involved with the family, M.W.states that the Mother’s mental health and T.A.D.’s behaviour improved markedly. [39] M.W. also testified that the children have become anxious and sometimes violent when they are made aware of an upcomingvisit with the Grandmother.

T.A.D. has recently said that he would rather kill himself than go on the visits and has had panic attacks ifhe thinks he will see the Grandmother or her car. During the visits, he often tells the Grandmother that he does not want to be there. Shesays that the Grandmother generally ignores these comments. She says that the Grandmother tells T.A.D. that she does not want to hearabout his feelings and on one occasion has told him that his expressed feelings have no basis in reality.

On one occasion she says thatwhen T.A.D. was telling her that he did not want to be there, the Grandmother told him that she did not want to hear his negative talk andyelled at him, which led to him having a panic attack and running away into the street. She states that the Grandmother has madedisparaging comments about the Mother on occasion during visits. The Grandmother denies much of this or states that the visitsupervisors are exaggerating.

M.W. acknowledged that at the end of a visit in February, T.A.D. said, “that was the best visit yet”. [40] An unusual, but important, aspect to this case is the impact of these relationships on the Mother’s own mental health. TheMother ended her contact with the Grandmother in large part due to how that relationship was negatively affecting her own well-being. In the months prior to their estrangement, the Mother was having panic attacks which were connected to unwanted contact with theGrandmother. When their contact ended, the Mother’s mental health improved.

When she was served with the Grandmother’s courtapplication for contact, her mental health again deteriorated, with the prospect of seeing her Mother triggering anxiety and PTSDsymptoms. In January 2017, the Grandmother stated that she no longer agreed to J.D. being the access supervisor. The prospect ofhaving to again supervise the visits herself led the Mother to having a severe anxiety attack requiring her to be brought to the hospital forpsychiatric treatment. She testified that she has recently fallen into a deep depression due to the visits and their effect on her relationshipswith her children.

The Law [41] Applications by grandparents for contact time are amongst the most troubling of cases. In the perfect world, grandparents canbring enormous value to the life of a grandchild and there should be no question or them having contact, nor any need for a court tointervene. Parents will generally recognize the importance of those relationships and willingly cultivate them. However, we do not livein a perfect world and all families are more complicated than the idealized version.

Consequently, all too often these matters end uphaving to be decided by the courts. [42] The leading case in British Columbia in this area is that of Chapman v. Chapman BCSC. The principles inthat case can be summarized as follows: a. There is no presumption that grandparent contact is in the best interests of a child; b. The onus to establish grandparent contact time is in the best interests of the child is on the grandparent - not on the parent to establishotherwise; c. The courts should be reluctant to interfere with a custodial parent’s decision in this sort of matter and should only do so where it is in

the best interest of the child; and d. While judges must be vigilant to prevent parents from alleging fictitious or imagined conflicts as a reason to deny contact time, incases of real conflict and hostility between the parent and grandparent, the child’s best interest will rarely be served by granting access. [43] Chapman v. Chapman was decided prior to the enactment of the Family Law Act in 2013. The Family Law Act mandates aneven greater emphasis on the best interests of the child than under the previous legislation. However, the approach to grandparentcontact remains essentially the same. In Fawcett v.

Read 2016 BCSC 310, Madam Justice Russell confirmed that approach. Atparagraphs 28-33 she states: [28] Deference to the custodial parent’s views has also been recognized in case law: see Chapman v. Chapman, (BC SC), [1993] B.C.J. No. 316 (S.C.). While Chapman does precede the passage of the FLA, it has been cited for several of theprinciples it enunciates, including giving deference to the custodial parent: N.F. v. H.L.S., [1998] B.C.J. No. 1739, aff’d 1999 BCCA398 . In T.F. v.

K.R.C., 2010 BCSC 1808 , the court in making its finding, said the following at para. 47, afterconsidering Chapman and N.F.: I am mindful of the principle that the court should generally accord considerable deference to the wishes of the custodial parent who ischarged with the child’s long term care. [29] I will note that the approach has changed somewhat since the introduction of the FLA, for example Bruce J. in Kalafchi SC, atpara. 24, does suggest that deference to the custodial parent’s decision about contact with a non-guardian may conflict with the emphasisin the FLA on the best interests of the child, but she does state that the other principles established by Chapman remain valid and shouldbe applied to applications under s. 59 of the Act.

In the final analysis, she ultimately still considers deference to custodial parents to bevalid because at para. 25, she finds that the custodial parent is entitled to deference regarding contact pending trial. Therefore, I do notfind that this statement means that giving deference to the custodial parent’s decision is no longer appropriate. [30] Deference to the custodial parent’s views is a relevant consideration, subject to any other evidence with respect to the bestinterests of the child.

The custodial parent’s views cannot trump the best interests test but may form one component of it. [31] Consequently, I find, that in making a decision for contact under s. 59, I must consider the best interests of A. in light of allapplicable considerations.

Further, given the codified deference owed to guardians under the Act when it comes to parentalresponsibilities, and given the case law, I find that in this analysis I may consider the reasonable views of the respondent, so long as theyare reflective of the best interests of A. [32] In T.F., at para. 47, the court ultimately found that the Mother’s views had more to do with her own feelings than the needs ofher son, and that the grandparents had demonstrated significant bonding with the child such that ongoing and regular contact waswarranted.

I point this out to show that I am mindful of the fact that the respondent’s views are not to be taken to be synonymous withthe best interests of A., without a full analysis of what is in the best interests of the child in these circumstances. [33] I have no difficulty recognizing the potential problem arising from the application of Chapman on deference to a parent’sdecision to deny contact, where that decision conflicts with the best interests of the child.

Clearly, it must be the case that the child’sbest interests are not just the paramount, but the only, consideration. [44] In the same case, Justice Russel also stated: I do of course agree that only the best interests of the child, A., may be considered in determining whether and how much contact shouldbe afforded. But that analysis should be a nuanced and contextual consideration. [45] It is also important to bear in mind that the Grandmother bears the onus of establishing that contact with her is in the bestinterests of the children: Kalafchi v.

Yao, 2015 BCSC 1152 at para. 26 [Kalafchi SC], aff’d 2015 BCCA 524 . [46] The relevant factors set out in section 37(2) of the BC Family Law Act assess the best interests of a child are as follows:

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

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, parentingtime 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 thechild 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 carefor 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. Discussion [ 47 ] I now turn to the application of the relevant factors for assessing the best interests of a child under s. 37 of the Family Law Act . [ 48 ] Health and emotional well-being of the child : The evidence was that T.A.D.’s emotional well-being is fragile. He has a number of mental health challenges which are now doubt aggravated by the ongoing conflict between the Mother and the Grandmother.

The Mother’s evidence, as well as that of her witnesses, was that contact with the Grandmother has a very negative impact on T.A.D.’s emotional well-being. Indeed, the Mother appears to believe that T.A.D.’s contact with the Grandmother is the source of much of his behaviour challenges over the past year and a half since formal visits commenced.

However, the evidence was also that T.A.D. had some longstanding mental health issues well before resuming contact with the Grandmother. [ 49 ] The Mother and her witnesses state that O.T.N. too has been negatively affected by contact with the Grandmother and that he has been wetting the bed, having night terrors and temper tantrums since visits commenced. Again, all of this behaviour is attributed by the Mother to the Grandmother having only two short visits each with the children each month. [ 50 ] The Grandmother states that she has seen little of the behaviour observed by the Mother.

There was no expert evidence that would assist me in determining the impact that the Grandmother’s visits have on the emotional well-being of the children. I nonetheless accept that the children have both expressed strong antipathy to going on the visits in recent months. However, they also appear to adjust to the visits once they arrive and appear to be for the most part happy during the visits. [ 51 ] Views of the children : This area is not entirely clear.

The Mother and her witnesses have testified that neither child wishes to attend the visits and have made that clearly known to the Mother and the visit supervisors repeatedly in recent months. T.A.D. has gone so far as to say that he would rather die than attend visits. However, for most visits both boys appear to enjoy themselves once the visit commences. When the visits began, T.A.D. expressed happiness about the visits. The Grandmother believes that the boys wish to see her notwithstanding their expressed desire that visits end.

It is unfortunate that there was not more objective evidence of the views of the children available to the court by way of a report from an uninvolved third party such as a family justice counsellor.

Without that, I accept that the children have made these statements, but given their lack of rationale for their views, I am not entirely convinced that their views are fully thought out or uninfluenced by those around them. [ 52 ] The nature and strength of the relationships between the child and significant persons in the child’s life : The Grandmother has had a long and close relationship with both children, particularly T.A.D. whom she helped to raise. After the estrangement began, these relationships diminished but were re-established at a much lower level once supervised visits began.

I believe that there is still an important relationship with the Grandmother despite its challenges. [ 53 ] History of the children’s care : In the first three years of his life, T.A.D. was raised with the significant involvement of the Grandmother. However, since then, the Mother has raised both boys with the Father, albeit with continued help from the Grandmother over the years. Both boys are now in the primary care of the Mother, who has now separated from the Father.

Of some significance is the fact that the Father has specified parenting time with the children on alternate weekends from Friday after school until Sunday evening, as well as Wednesdays from 3:30 to 8:30. He is also having discussions with the Mother about arranging another evening each week with the boys. Also important is the fact that the Mother has recently had a new baby and is in a new relationship with the baby’s father, J.D. [ 54 ] The children’s need for stability : Stability is particularly important for T.A.D. whose anxiety, I am advised, can be triggered by uncertainty.

However, I do not believe that contact with the Grandmother is necessarily a source of instability or uncertainty for either child if it is in a fixed schedule. I believe that what is more significant is the need for stability in relation to the Mother. Contact between the Mother and the Grandmother clearly has a seriously negative impact on the Mother, causing her to have panic attacks, anxiety and depression.

As their primary caregiver, her mental health is a key piece to assessing the best interests of the children and any order must respect that element. [ 55 ] The ability of the person seeking contact to exercise her responsibilities : The Mother states that the Grandmother does not respect her parenting approaches and disregards her directions as to such things as the children’s dietary needs. I agree that the Grandmother has been somewhat cavalier about such things as the foods that the children can and cannot eat.

I also agree that sometimes the Grandmother has struggled with implementing the parenting strategies mandated by the Mother during her limited visits. I also agree that on many occasions, but primarily before this litigation commenced, the Grandmother exercised very poor judgment in her relationship with the Mother and the children. However, I also believe the Grandmother’s behaviour during supervised visits is not much different than what might be found with any grandparent struggling to comply with a parent’s approach to parenting.

Conclusion [ 56 ] The relationship between the Mother and the Grandmother is clearly a troubled one. What makes it even more challenging is that the Grandmother does not appreciate why it is such a difficult relationship. However, that is not something that the court is able to fix, nor would it be appropriate to order that they engage in counselling, although the Grandmother seeks an order for counselling. [ 57 ] The relationship between the children and the Grandmother was previously a close and important relationship.

However, it appears to have unravelled because the Grandmother was not able to respect the Mother’s clearly expressed boundaries. Because of her complicated relationship with the Grandmother, the Mother felt that she had no choice but to terminate the relationship. Under the circumstances, I do not fault the Mother for taking that step and I believe that this estrangement is largely of the Grandmother’s own making. The Grandmother needs to understand that as a grandparent, she potentially has an important role to play in her grandchildren’s lives.

But she must also understand that she is not their parent and accordingly, her role will always be subordinate to that of the parents.

I believe that she has reluctantly come to that understanding, although the fact that she is seeking three visits each month as well as a sleepover and extended time during the summer might suggest otherwise. [ 58 ] While I have heard evidence indicating that the boys do not want to continue visits with the Grandmother, the reasons they have given for not wanting the visits do not make sense. Consequently I have difficulty completely accepting their antipathy for the visits as recounted by the Mother and her witnesses.

That is not to say that I disbelieve the Mother or her witnesses, but rather that I believe that the children may be saying these things for reasons more complicated than that it is their real feeling. [ 59 ] I am not satisfied that it is in the best interests of the children to terminate all contact with the Grandmother. Indeed, at least at this point, I believe that it is in the children’s best interests to continue to have some level of contact with the Grandmother, who represents the connection to the entire maternal side of the Mother’s extended family.

However, the impact of the visits on the Mother is an important factor and supports a reduction in the frequency of the visits from the current interim order of twice per month. That level of frequency has clearly been damaging for the Mother. [ 60 ] In addition, the children’s time is now spread between two households with the Father and the Mother having separated. The Grandmother cannot expect a similar level of contact with the children as a separated parent might have.

Grandparents often do not see their grandchildren for weeks or sometimes months at a time and the Grandmother needs to accept a reduced level of contact than what she would like. Indeed, it has been her ongoing dissatisfaction with the amount of contact she had with the boys that originally led to this separation. She will need to be respectful and accepting of the contact that she has with the boys or she could doing more damage to her relationship with the Mother, and even with the boys. [ 61 ] Accordingly, I hereby order that:

a) The Grandmother will have one 3 hour supervised visit with the children each month with the date and time to be agreed upon between the parties.

b) The supervisor will be chosen by the Mother.

c) The specific date and times of the visit each month will be arranged between the Grandmother and a person appointed by the Mother in order to avoid contact between the Mother and Grandmother.

d) A Views of the Child Report will be prepared by a family justice counsellor to report on the views of both children.

e) Any of the parties has liberty to set this matter for a review in 12 months, with Judge McQuillan to be seized of that application.

f) The Grandmother’s application for counselling is dismissed. The Honourable Judge R.P. McQuillan Provincial Court of British Columbia