P. D. v. H. M. Date:, 2011 BCPC 208

Citation: P. D. v. H. M. Date: 20110812 2011 BCPC 0208 File No: F28834 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: P. D. APPLICANT AND: H. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. O'C. WINGHAM Counsel for the Applicant: G. M. Green Counsel for the Respondent: B. Easton Place of Hearing: Surrey , B.C. Dates of Hearing: Jan. 11, 12, 13, 27; Feb. 2; Apr. 11; May 30; June 1 and 28, 2011 Date of Judgment: August 12, 2011 INTRODUCTION [ 1 ] The parties are the parents of H.D., who was born on [DOB].

H.D. is currently 5 years old. On April 15, 2009, after a lengthy trial, I delivered written Reasons for Judgment in which I ordered that the parties share joint custody and joint guardianship of H.D. and that H.D.’s primary residence would be with her mother, H.M. Mr. P.D. was granted reasonable and generous access to H.D., which was to include, during the months of September through June of each year, a period of ten days each month and during the months of July and August of each year, a period of two consecutive weeks in each month commencing on the first Sunday of each month.

It was expected that the issue of access would have to be reviewed when H.D. reached school age if the parties continued to live in separate communities. She is now at that age as she will begin kindergarten in September of this year. Mr. P.D. continues to live in Williams Lake while Ms. H.M. continues to live in Surrey. [ 2 ] Mr. P.D. submits that there has been a material change in circumstances since the April 15, 2009, order and he seeks to vary that order to provide that H.D.’s primary residence be with him. He says that it is in H.D.’s best interests to live primarily with him. Ms.

H.M. says that there has not been a change in circumstances and that the previous order should not be changed except as it relates to access as contemplated in the previous order. Counsel for Ms. H.M. says that if I were to find that there has been a change in circumstances, I should vary the order of April 15, 2009, to provide that she have sole custody and sole guardianship of H.D. ISSUES [ 3 ] The issues in this case are:

1. Has there been a change in circumstances which would justify a change of the April 15, 2009, order? 2. If there has been a change in circumstances, what orders as to custody, guardianship, residence and access would be in H.D.’s best interests? 3. If there has been no change in circumstances, what would be the access order which would be in H.D.’s best interests? EVIDENCE [ 4 ] Mr. P.D. is now 69 years old. He continues to live in the same circumstances as he did at the time of the original trial. He lives in a small, one bedroom home in Williams Lake.

His income remains unchanged. [ 5 ] His evidence at the first trial was that if he had sole custody of H.D., he would teach her to fish, skate and swim and that he would take her to playgrounds to meet other children. He continues to have a friendship with H.L. H.D. plays with Ms. H.L.’s grandsons when they are in Williams Lake. Since the order of April 15, 2009, Mr. P.D. has been diligent in exercising his access to H.D. He drives back and forth from Williams Lake. His evidence on this trial was that he continues to provide for all of H.D.’s personal needs when she is in his care.

H.D. sleeps in her own bed in his room when she is in Williams Lake. Mr. P.D. says that if he is awarded custody of H.D., he will get a two bedroom residence in Williams Lake. [ 6 ] Mr. P.D. says that there is an elementary school one block from his current residence although he has not looked into enrolling H.D. [ 7 ] The evidence is clear that the bond between H.D. and Mr. P.D. remains strong and that he is attentive to her needs when she is in his care. [ 8 ] Mr. P.D. expressed concerns about the care that H.D. is receiving at Ms. H.M.’s residence. He said that Ms.

H.M. watches violent video games when H.D. is present, that she sleeps in the same bedroom as Ms. H.M. and her boyfriend and that she’s not washed and her hair is not combed when he picks her up. He also says that there is not enough food in Ms. H.M.’s home. [ 9 ] Mr. P.D. also expressed concern that Ms. H.M.’s son, M., has his own bedroom with his own fridge and television and that he is left by Ms. H.M. to “do his own thing”. [ 10 ] H.L. is Mr. P.D.’s friend. She sees Mr. P.D. and H.D. almost every day when H.D. is with Mr. P.D. She was fair in her assessment of Mr. P.D.

She said that he is not perfect but that he is a good father to H.D. She said that Mr. P.D. walks H.D. to pre- school in Williams Lake. She said that she has never seen Mr. P.D. be rough with H.D. or raise his voice to her. [ 11 ] Ms. H.M. is now 50 years old. She continues to rely on government disability benefits for her income. As noted in the previous Reasons for Judgment, her I.Q. is between 68 and 73. At the time of the original trial, the Ministry for Children and Family Development had an open family service file relating to Ms. H.M.

At that time the evidence was that the Ministry file was open partly because of the extensive history of Ministry involvement with Ms. H.M. and her children, and partly to provide supports to Ms. H.M. Ministry involvement at the time was limited. Ms. H.M. was also receiving assistance from Antoinette Parker, a life skills instructor with Peace Arch Community Services. That assistance was to help Ms. H.M. find accommodation, furniture, establish a budget and help her learn to prepare healthy and nutritious foods. Ms. Parker met with Ms. H.M. approximately one time per week for a number of years.

The evidence of Ms. Parker at the time of the original trial was that Ms. H.M. can effectively parent her children if she has supports in place. [ 12 ] At the time of that trial there was evidence that Ms. H.M. was maintaining a clean and safe environment for H.D. There was also evidence from Mr. P.D. that H.D. was dirty and hungry when he picked her up for access visits. [ 13 ] In my Reasons for Judgment of April 15, 2009, I expressed concerns about Ms.

H.M.’s ability to plan for things that are important for H.D.’s well being and gave examples of vague and non-committal answers to questions about her parenting plans (see RFJ April 15, 2009, para. [33]). [ 14 ] Ms. H.M.’s evidence at the most recent trial raised similar concerns and reinforce the conclusion that Ms. H.M. requires the support of social service agencies to effectively parent H.D.: 1. When asked about H.D. playing with other children, her response was that “she played with two or three yesterday”. 2. When asked about her son, M.’s, schooling she responded “I’ve heard that he’s doing quite well”.

She did not remember the name of M.’s school or the last time she had been at his school. 3. She was unable to say whether lunches will be provided at the school H.D. will be attending for kindergarten. 4. She said that she had a family doctor but that the doctor had moved. She could not recall when that had occurred but said that she is looking for a new doctor. She said that she was going to ask the lady from Option to help her find a new doctor the next time she came. 5. She said that H.D. had had one or two cavities but the dentist refused to fix them because H.D. would not cooperate.

She did not know the name of the dentist. She said that she would like to find a child’s dentist but hadn’t found one yet. 6. When asked about H.D.’s inoculations, she said “I believe she’ll get her shots in kindergarten, maybe”. [ 15 ] As I found previously, Ms. H.M. will clearly need continued help in parenting H.D. In the past she sought help from Ms. Parker. Presently she is receiving assistance from Nancy Oldham, a counsellor with Options, a community service organization in Surrey.

[ 16 ] Since the last trial Ms. H.M. has been receiving services through the Ministry for Children and Family Development. Social worker, Matthew Walker, testified that he had conduct of the Ministry’s family service file relating to Ms. H.M. and her family from April, 2010 to April, 2011. When he became involved, Ms. H.M. was receiving counselling through the Family Preservation Program to assist her with what was described as a volatile relationship with her boyfriend, Wolf (Mr. C.). Mr. Allen Faan, a counsellor with that Program, had been working with Ms. H.M.

The evidence indicates that that Program was of assistance to Ms. H.M., and that it was recommended that she reach out for assistance in the future when she needed it, and that she maintain a connection with Community Living BC to obtain support when she needs it. [ 17 ] Ms. H.M. is currently receiving assistance from Options. Nancy Oldham, a counsellor with Options, assists her on a regular basis in completing tasks and errands that she needs help with. [ 18 ] Mr. Walker described Ms. H.M. as being open to support.

He described an ongoing issue with her as her need to get out to places and to access community services for the children. [ 19 ] He described Ms. H.M. as taking the initiative to contact him. He said that she is on a wait list for community living services and that the Ministry will continue to provide services to her so long as she maintains contact with the Ministry office. [ 20 ] Mr. Walker’s evidence was that he visited Ms. H.M.’s home on four occasions. He described her home as consistently clean and well cared for. [ 21 ] He has met H.D. five or six times.

He described her as energetic, curious, playful and a bit shy. He said that H.D. seemed average in terms of cleanliness and that she was appropriately dressed and seemed well care for. He has observed the affection between H.D. and her mother and he has seen Ms. H.M. redirect H.D.’s behaviour positively when it was necessary. Mr. Walker described Ms. H.M.’s son, M., as “a friendly, personable kid” who is polite and well mannered. [ 22 ] At the conclusion of the last trial, Ms. H.M. had recently started a relationship with Mr. C.

The evidence at the most recent trial indicates that that was a bad relationship as Mr. C. was controlling and there was conflict between Mr. C. and M. As noted, Ms. H.M. sought help dealing with that relationship and she received counselling through the Family Preservation Program. She eventually ended her relationship with Mr. C. She now has a new boyfriend, H., who does not appear to present the same issues as Mr. C. Ms. H.M. denies Mr. P.D.’s allegations that H. sleeps in her bedroom with her. She said that if he does stay overnight he sleeps on the couch. [ 23 ] Ms.

H.M.’s daughter, J.M., testified at the recent trial. She described her relationship with her mother in positive terms. She visits her regularly. J.M. described her relationship with H.D. as great. She said that H.D. brings her joy. She described a close bond between H.D. and her mother and between H.D. and her brother, M. [ 24 ] J.M. testified that she knows that Mr. P.D. loves H.D. as well. She said that if H.D. went to live with Mr. P.D., she would like to talk to her on the phone and go to visit her but she did not think that Mr. P.D. would let that happen. [ 25 ] Ms. H.M. denied the allegations made by Mr.

P.D. that she plays video games with violence in them when H.D. is present. Ms. H.M. described her day to day care of H.D. in a manner which appears entirely appropriate. She gets H.D. up in the morning, H.D. brushes her teeth, washes her face and has breakfast. Ms. H.M. takes her out with her to do errands. Ms. H.M. takes H.D. to Guildford Family Place two to three times a week. Guildford Family Place is a family drop in centre which is open from 9:30 a.m. to mid afternoon. While they are there, H.D. draws, colours and plays with other children. Lunch is provided at a nominal charge. Ms.

H.M. said that when they go, they stay for the entire time that it is open. [ 26 ] Ms. H.M. enrolled H.D. in a pre school but withdrew a short time after when Mr. P.D. told her that he objected to her attending that preschool. [ 27 ] Although she has not yet done so, Ms. H.M. said that she would like to enrol H.D. in sports and in dancing. Those are clearly things that she will need help in doing. LAW Material Change in Circumstances [ 28 ] Mr.

P.D. seeks to change the terms of the order of April 15, 2009, as it relates to primary residence and access. [ 29 ] On an application to change an order relating to custody, guardianship or access, there is a threshold requirement that there has been a material change in circumstances affecting the child. If that threshold is met, the court must embark on a fresh enquiry as to what is in the best interests of the child ( Gordon v. Goetz , [1992] 2 S.C.R. 27 ). [ 30 ] The nature of what constitutes a material change was described by Mr. Justice Warren in Bruce v. Bruce , [1997] B.C.J.

No. 396 (BCSC) at para. [11] : 11 The change, whether the application is under the Divorce Act or the Family Relations Act , must represent a clear or distinct departure from what the court then knew of the circumstances or could reasonably have anticipated when making the order. The change must be a material change. 12 The Family Relations Act requires the court to approach this paramount consideration by weighing the factors and satisfying itself that there has been a change which affects the health and emotional well being of the child.

The court must also consider, where appropriate, the views of the child as well as the love, affection and similar ties that exist between the child and other persons. Further, the court must consider the effect of the change on the education and training of the child, and the effect of the change on the capacity of each person to exercise custodial or access rights. The court's approach should attribute the appropriate emphasis for each of these factors to the child's needs and circumstances.

13 The first two factors and the fourth factor focus directly on the child. The third and fifth factors include some consideration of others involved in the child's life while the fifth factor also focuses on the capacity of the parents to exercise their rights and responsibilities. Again this must be weighed in the context of the paramount interests of the child. 14 Conduct of a person is not a consideration unless it substantially affects any of the factors under Sec. 24(1)(a-f).

In my view conduct cannot be a factor where the conduct was known to the parties prior to the last order and which was or could have been considered by the court that made the order sought to be varied. [ 31 ] Counsel for Mr. P.D. submits that the following are changes in circumstances that are material to H.D.’s best interests and well being: 1. H.D. has attained school age; 2. H.D.’s regime has changed as she has now had access visits in Williams Lake with Mr. P.D.; 3. Ms. H.M. has lost the support of Antoinette Parker since the April 15, 2009 order, she has had a man, “Mr.

C.”, involved in her life, and she now has a new boyfriend. [ 32 ] Counsel for Ms. H.M. submits that there has been no change in circumstances and that Mr. P.D. is simply trying to re-litigate the issues that were before the Court on the previous trial. ANALYSIS [ 33 ] The fact that H.D. has reached school age is not a fact which constitutes a material change in circumstance.

That fact was known to the Court in April, 2009, and the Reasons for Judgment delivered on that date contemplated the need for a review of access once she attained school age. [ 34 ] The fact that H.D. would be regularly travelling back and forth to Williams Lake was also a fact that was known at the date of the last trial and it was contemplated that that regime would have to be reviewed when she reached school age. I do not consider that to be a material change in circumstances. [ 35 ] The conflict caused by the man known as Mr.

C. was not a fact which was contemplated or anticipated at the date of the April 15, 2009, order. If that relationship had continued, I am of the view that a fresh consideration of what is in H.D.’s best interests would be required. The existence of the relationship was in evidence at the last trial, however, and it is now ended. Ms. H.M. is in a new relationship with another man. The same difficulties do not appear to exist in that relationship. [ 36 ] The fact that Ms. H.M. no longer has Ms. Antoinette Parker as a support would constitute a material change if Ms. H.M. was no longer receiving support.

However, it is apparent from the evidence that she has reached out to the Ministry of Children and Family Development and that she is receiving ongoing support through Options. The evidence indicates that so long as she maintains her contact with the Ministry, support services will be made available to her. BEST INTERESTS OF H.D. [ 37 ] In my Reasons for Judgment of April 15, 2009, I concluded that the best interests of H.D. would be met by the orders which I made on that date including that her primary residence be with her mother.

In doing so, I considered the factors which I am bound to consider under section 24(1) of the Family Relations Act . In my view the evidence at this hearing does not demonstrate that there has been a change in circumstance which would affect the conclusion I came to on any of those factors and, ultimately, what is in the best interests of H.D. Health and Emotional Well-Being of H.D. [ 38 ] The evidence on this issue is largely the same as it was at the previous trial. H.D. is healthy and active. There is some evidence that Ms.

H.M. has delayed in some areas such as finding a new family doctor and a child’s dentist. The evidence indicates that she will be using the assistance of Ms. Oldham to pursue those issues. On the other hand, there is evidence that she registered H.D. in pre- school, that she has registered her in kindergarten and that she has involved H.D. in activities outside the home at Guildford Family Centre. I am confident that Ms. H.M. will continue to reach out for assistance and that with that assistance she will be able to properly provide for H.D.’s needs. Mr. P.D. also remains committed to providing for H.D.’s needs.

Views of the Child [ 39 ] H.D. is now five years old. There is some evidence that she has said that she wants to live with her mother, but the evidence shows that she is still comfortable with both parents. Love, Affection and Similar Ties [ 40 ] The evidence at the most recent trial indicates that H.D. continues to have a close bond with both parents as well as with her brother, M. The evidence also indicates that a relationship with her older sister, J.M., has been established. Mr. P.D. apparently remains estranged from his family. While he has Ms.

H.L. as a friend and a support, he has no extended family in Williams Lake. Education and Training [ 41 ] The evidence at the recent hearing was that M. is attending school and that he is doing well. As noted, Ms. H.M. did enrol H.D. in pre-school but Mr. P.D. objected to her being at that pre-school and Ms. H.M. subsequently withdrew her. She has now registered H.D. in kindergarten and she will be walking her to and from school every day.

Capacity of the Parties [ 42 ] My previous conclusion that both parties have limitations in their capacity to parent is unchanged. My reasons for that conclusion are set out in paragraphs [63] – [68] of my April 15, 2009, Reasons for Judgment. Ms. H.M. continues to require supports. The evidence at this trial is that she has sought out those supports over the last two years and that they will be available to her so long as she continues to seek them out. Mr. P.D. is now 69 years old. He has been consistent in visiting H.D.

While he may have the will and the energy to deal with H.D.’s daily needs now, it remains uncertain as to whether, with advancing years, he will be able to do so as H.D. gets older. He will be 79 years old when H.D. is 15 years old. [ 43 ] At the time of the original trial, the evidence indicated that Ms. H.M. is a person who needs assistance and that she was open to and in fact sought that assistance. The evidence at this trial has shown that while she has continued to need that assistance, she has continued to seek it out and it has been made available to her. That has not changed and will probably not change.

It is clear that in order to effectively parent H.D., Ms. H.M. will need assistance. That was evident at the first trial and it remains so today. She will likely continue to experience challenges but so long as she seeks out help, I am satisfied that she can parent H.D. and that it continues to be in H.D.’s best interests to have her primary residence with Ms. H.M. Conclusion Custody, Guardianship and Residence [ 44 ] The evidence does not show a material change in circumstances which would affect the best interests of H.D.

H.D.’s best interests will be met with primary residence being with her mother, H.M., and with the parties continuing to share joint custody and joint guardianship of H.D. Mr. P.D.’s application to vary the April 15, 2009 order is accordingly dismissed. Access [ 45 ] H.D. has now reached school age and will be attending kindergarten full time in September of this year. As contemplated in the order of April 15, 2009, the access

schedule will have to be adjusted to accommodate her attendance at school given the fact that Mr. P.D. lives in Williams Lake. It is important and in H.D.’s best interests to maintain a relationship with Mr. P.D. That goal is made difficult by the fact that Mr. P.D. lives in Williams Lake and that he does not plan to move to the Lower Mainland. [ 46 ] The order of April 15, 2009, will be varied as it relates to access to H.D. by Mr. P.D. Mr. P.D. shall be entitled to reasonable and generous access to H.D. which shall include the following: a.

Five consecutive weeks during the summer break from school every year; b. December 26 – January 1 each year; c. One half of Spring Break from school; d. One weekend per month from Friday after school to 7:00 p.m. Sunday (this access will likely have to take place in the Surrey area due to the travel involved as long as Mr. P.D. remains living in Williams Lake); e. Every three day weekend starting from after school on the last day before the weekend begins until 7:00 p.m. on the evening before H.D. has to return to school; f.

Such other dates and times as the parties may agree to. __________________________________ The Honourable Judge J. O’C. Wingham Provincial Court of British Columbia