P.G.W. v. P.F.W. and C.V.R. Date:, 2017 BCPC 36

Citation: P.G.W. v. P.F.W. and C.V.R. Date: 20170127 2017 BCPC 36 File No: F38826 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P.G.W. APPLICANT AND: P.F.W. and C.V.R. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.M. WOLF

Counsel for the Applicant: N. Bulatovic Counsel for the Respondent: S. Foo (for P.F.W.) Counsel for the Respondent: D. Boyd (for C.V.R.) Place of Hearing: Surrey , B.C. Dates of Hearing: January 9-11, 2017; January 16-17, 2017 Date of Judgment: January 27, 2017 INTRODUCTION [ 1 ] These are the oral reasons for the applications before the court. This matter involves two children. D.R. (“D.”), born [omitted], and C.R. (“C.”), born [omitted]. They are [ages] years old respectively. [ 2 ] They are currently living with their maternal grandmother P.G.W. (“P.G.”).

P.G. seeks a guardianship order, with accompanying orders that would make her residence the primary residence of the children and allocate to her most if not all the parental responsibilities. [ 3 ] The children’s father resides in Alberta and seeks an order declaring him as their guardian. He also seeks an order that would allow the two children to move to Alberta and reside with his current common-law partner and their [age] year old daughter. [ 4 ] Ms. P.F.W. (“P.F.”) is the mother of the children. She supports her mother’s application for guardianship.

What is Not an Issue [ 5 ] In closing submissions all parties agreed that C.V.R. (“Mr. R.”) is the father of the two children, and while there was some disagreement as to when mother and father lived together, all are agreed that he is a guardian and I make that order. [ 6 ] At this time, I believe all are agreed that Ms. P.F., the mother of the children, loves her children but at this point in her life she is not able to care for them. [ 7 ] P.G. stepped in and has been taking care of the children for many years and has been doing a great job. What is an Issue 1.

Should the children’s grandmother be appointed as guardian? If so, how should the court allocate parental responsibilities? 2. Should the children reside with their grandmother in British Columbia (“BC”) or with their father in Alberta? [ 8 ] The Children Family Community Services Act matter is on hold until this court delivers these reasons. In August 2015, both D. and C. came into care. The Director was, and still is, of the view that their mother, P.F.W., has substance abuse issues, as well as mental health issues.

Sadly, an overdose occurred in the home that P.G. and P.F. were living in and eventually, P.G. moved into a different residence, stepped in and is temporarily taking care of the children. [ 9 ] It is the Director’s view that P.F. has a substance abuse problem and that she has not done any work on her issues. I note that it appears that Ms. P.F. is currently residing in a recovery centre and has not been using drugs since November 2016. In my view, she is working on these issues. RELEVANT LEGISLATION Best interests of Child [ 10 ] This is a complicated assessment that the court must do.

The ultimate goal is to create an order that protects the children’s physical, psychological and emotional safety and overall well-being. Requirements of Section 37(1) [ 11 ] In considering granting an order for guardianship and parenting arrangements, I must only consider the best interests of the child. [ 12 ] I must consider all the needs and circumstances of the child. Some of the particular factors are set out in Section 37(2) and include almost every aspect of the children’s lives.

For example, • health and emotional well-being; • child’s views; • relationships between the children and other significant persons in their lives; • the history of the child’s care;

• the need for stability, taking into consideration the child’s age and stage of development; and • the ability of the person who is seeking guardianship. The Possibility of Changing the Residence from British Columbia to Alberta [ 13 ] It is

Section 46 of the legislation that I must consider when considering changing the child’s residence. This provision demands that the court carefully examine all the factors of a potential move. It is simple common sense that a change of residence from their grandmother’s place in BC, to their father’s place in Alberta will greatly affect the relationship they currently have with their mother – as well as their grandmother and other family members. [ 14 ] Mr.

Boyd, counsel for the children’s father, submits that I consider the concept of relocation before adjudicating on the issue of appointment of their grandmother as a guardian. In essence, it is an interesting submission. It is argued that if I consider first the relocation issue, there are at this moment two guardians. Father and mother. And mother is not able to care for the children at this time. Thus, there is a strong argument favouring a full-time placement with the father.

Alternatively, if I consider, and ultimately grant guardianship to their grandmother, I would then have to consider a more complicated analysis that includes mother, father and grandmother. [ 15 ] Ms. Bulatovic submits that in considering the best interests of the children, I should consider the appointment of the grandmother as a guardian first, then move on to assess whether it is in the best interests of the children to have them move to Alberta. [ 16 ] The reality, and I am sure counsel agree, is that all of these issues are interwoven.

They cannot, in my view, be separated and looked at independent of each other. In other words, the best interests of the children can only be determined after fully considering who the children’s guardians are and who the guardians should be. The children’s relationship to their mother, father and grandmother are all essential considerations. As well, consideration of all the competing possibilities of living in BC or living in Alberta are all key to deciphering and determining what is in the best interests of the children. Reasons for Mr. R.’s Wish to Relocate the Children [ 17 ] Ms.

Bulatovic was very able and I am grateful for her well written and well thought out submissions. [ 18 ] In short, I fully agree with her that her client, P.G. provided for the children when no one else did. She nurtures them, watches tv with them, helps them with their homework. The list is endless. She comforts them when they cry, feeds them, and makes sure they get to school. [ 19 ] I respectfully disagree with one submission.

Much emphasis has been put on the submission that “the only reason Mr. [R.] wishes to now take on the responsibility of being the children’s father is because the children have been removed” and that this somehow is a strike against Mr. R. [ 20 ] What is a strike against Mr. R. is that while his children were in BC, he did not make better efforts to see them. He did not make regular efforts to speak to them, or do simple things such as give them birthday or Christmas cards. Another strike against Mr. R. is that he had the ability to provide some financial support but chose not to.

I appreciate that money is tight in people’s lives, that he had eventually started a new family and that costs money. But the fact of the matter is, he is the father to two children. He is responsible for them. I think it is fair to say he has been an irresponsible father. [ 21 ] What is not Mr. R.’s fault is that his children were moved to BC. Mr. Foo, on behalf of the mother, submits – and I think is correct – that Mr. R. did nothing to stop the children from moving to BC. If he did seek guidance from the court, then the court would have assessed the details of a relocation application.

I would think the age of the 9-month-old child would have heavily weighed in favour of staying with her mother. But chasing the plethora of possibilities down that hypothetical trail does not seem helpful for our purposes in this case. [ 22 ] I believe Mr. Boyd’s submission on this point ‘of Mr. R. doing nothing’ is worth discussing. I say this with emphasis, it was P.F.’s evidence that when she left Alberta to move to BC, she communicated to Mr. R. that she expected this move to be a temporary move.

She was simply going to move back in with her mother to ‘regroup’ I think is the term we have been using throughout this trial. Ms. P.F. testified that she told him “it would be a temporary thing; I’m going to go to my mum’s place and come back.” [ 23 ] It appears that as time went on, her stay became less temporary and more permanent. Her roots became more planted in BC and somewhere along the line, the intention to move back to Alberta was no longer there. It is unclear whether this intention disappeared a week, month, year, or years after landing in BC. It appears by Ms.

P.F.’s testimony that the ultimate turning point was she refused to go back to Alberta after she found out Mr. R. had got somebody else pregnant. [ 24 ] While, as I have mentioned, Mr. R. was not a great father during this time period, he was limited in his ability to perform some of his fatherly duties due to his geographical predicament. He was in Alberta. His children were in British Columbia. [ 25 ] I think it is also worth noting that it is highly likely that he was of the view that his children were with their mother, who had the assistance of their grandmother, and that they were doing fine.

They had a roof over their heads; they were in school and by all accounts were healthy. [ 26 ] Ultimately, yes, he did nothing to get the children back until he found out they were in care. In my view, to stay with the baseball analogy, he may have taken a long time to step up to the plate. But he is now doing exactly that. [ 27 ] In CFCSA cases, children are in care. Prior to a permanent placement, notices are sent out to potentially interested parties.

For example, they can be sent out to Aboriginal bands if the child is aboriginal; they can be sent to mothers or fathers; aunts or uncles; cousins, grandmothers and grandfathers alike. Just because the fact that these individuals did not stand up and offer themselves to be a

guardian in the past, does not mean that they would not make good guardians in the present or future. Cautions [ 28 ] I caution myself on a point not raised by counsel. When grandmother testified, she said that if this court orders that the children move to Alberta that she would move to Alberta as well. She further testified that she expected that she would bring the children’s mother with her.

Her daughter confirmed this idea in her testimony and made it clear that neither she nor her mum wanted to move but they would do whatever it would take to support the kids. [ 29 ] I applaud the honesty of both these witnesses. But knowing that these children will have the continued support of their mother and grandmother does not abdicate the responsibility that falls on this court. I must find less comfort in this piece of knowledge and focus on the issue of what is in the best interests of the children. [ 30 ] I also wish to caution the family.

And if D. and C. were here, I would speak directly to them on this point. Perhaps, somebody in the family might read this portion of the judgement to them if they consider it appropriate. Certainly, the words will become part of a court record that will be available to them when they are old enough to understand this. If I were speaking directly to them I would say this: Just because you are going to one home does not mean that the other is not just as loving. Just because you are going to one home does not mean that there is something wrong with the other. You, [D.] and [C.], are fortunate.

You are loved by your mother and father and grandmother and aunts and uncles and cousins and teachers and friends. Your mother and father and grandmother all want to be there to make sure that you are happy and that you grow up to be healthy and strong. They want to make sure that you know that everybody loves you.

Sometimes when people love children so much and they cannot agree on what is best for them, they ask a Judge to listen to everybody and make the decision. [ 31 ] I caution myself that there is no magical checklist that I can simply utilize to determine what the best interests of the children are, but it is only the best interests of the children that I must consider. FACTORS TO CONSIDER (

a) D. and C.’s Health and Emotional Well-Being [ 32 ] Paragraph 4 of Ms. Bulatovic’s written submissions covers this point very well when assessing the health of the children from P.G.’s perspective. They are healthy and well cared for. (

b) D. and C.’s View [ 33 ] I have not heard directly from the children. There is no

Section 211 report prepared. [ 34 ] The social worker testified that the last conversation she had with the children was in October 2016, and they told her “they would be happy living with their grandmother or their dad.” [ 35 ] P.G. said that they had good visits with their father and always seemed happy to see him. Although she also said that while they love their dad, they don’t want to live with him.

I also heard evidence from P.G. that they were happy living with her and that they wanted to have visits with their father in Alberta. [ 36 ] I do not put much weight on these second hand versions of what the children might want. Even if they were here in court today and telling me directly that they wanted one thing or another, I would not let their opinion be the driving force of my conclusion. Their opinion is welcomed. But how is a [age]-year-old or [age]-year-old able to properly assess what is good for them? They cannot. (

c) Nature and Strength of Relationships Between D., C. and Other Significant Persons in Their Lives [ 37 ] They obviously have a strong bond to P.G. She is their grandmother, but no doubt, in their eyes, more of a maternal figure. She is the one they see when they wake up in the morning. It is her voice they hear saying goodnight at the end of the day. [ 38 ] Their father has been largely absent in their lives since 2008. He had not seen them for years and his contact with them has been limited by phone until 2015. Since 2015 he has met with his children three times.

A multiple day visit in BC, a week or so long visit in Alberta, followed by a multiple weeklong visit again, in his home in Alberta. During the Alberta visits the children were able to be introduced to their common-law step mother and step-sister, E. [ 39 ] D. and C. have been able to have some contact with their mother. This is largely accomplished through the assistance of P.G., who is able to supervise the visits.

This supervision is done as a requirement of a Director’s order. [ 40 ] The children have contact with other extended maternal family members throughout the year in BC and are basically estranged from their paternal family, who for the most part, reside in Alberta. [ 41 ] Ms. P.F. testified that she would like to see the kids stay with her mother; she says that she is still their mom and she would like to be able to see them more often. It is her hope that one day the children would be able to be returned to live with her. (

d) History of the Children’s Care [ 42 ] P.G. and P.F. have been very involved in caring for the children. This partnership of care ceased on August 16, 2015 when P.G. became the primary care giver for the children. She got her own place and the children began to reside with her at that point. In essence, the children have been with her for approximately a year and a half.

[ 43 ] I think it is fair to say that this factor is important. In the eyes of D. and C., P.G. is their main caregiver. She was there when they moved to BC and she is there now, even when their father and mother are not. (

e) Need for Stability [ 44 ] They moved from Alberta to BC. They moved a couple of more times. Most recently, they stayed with their ‘Poppa’ for a couple of weeks until P.G. found accommodations that would be suitable for all of them. I pause to note that P.G. in her testimony said, “We do what we gotta do to get it done”; her comment really was a testimony to her willingness to accomplish whatever she needs to do to take care of these children.

I like that attitude. [ 45 ] P.F. made the point at least twice in her testimony that she did not see the sense in uprooting the children from everything they know. [ 46 ] Mr. Boyd submitted that there is no perfect time to relocate children. Ms. P.G. put it this way – that she did not “think it is fair to pull them out of school and away from their family”. Even Mr. R. in cross-examination said, “I don’t want to mess up their school.” [ 47 ] Mr. Boyd argues that the court must be mindful of the ultimate effect of court orders.

He argues that even if the court determines that placement with P.G. is a good move in the short term, what about as time goes on? Implicit in his argument is the idea that P.G. will be 78-years-old by the time C. is [age]. [ 48 ] I agree with the idea that a court must be mindful of the short term benefits and long term consequences of the orders that it makes. But when I hear P.G. testify, I see her strength and I know the children would benefit having her in their lives. Sixty-six or eighty, she will still be fighting to make sure they are taken care of. (

f) The Ability of Their Father and Grandmother [ 49 ] I believe both are able to care for these children. Both want to care for these children. [ 50 ] When talking about ‘abilities’ there seems to be a natural tendency to first look at an individual’s financial ability. Of course, I think money helps. But there are many wealthy guardians that do a terrible job of parenting. Equally, there are many parents that don’t have any money at all that are perfectly loving and great parents. [ 51 ] The fiscal reality in this case is that P.G. has a limited income.

This income could be supplemented, by all counsel’s submissions, with approximately another $700 per month through child support payments. She is [age] and on a government pension. Currently her income is supplemented through the Ministry. [ 52 ] Mr. R. testified. He testified that he was born in Alberta and that Alberta has always been his home. He was raised there. He finished grade 10, started a welding apprenticeship and eventually took on different jobs involving construction equipment.

He works full-time in a steady job and does not expect his circumstances to change in the near future. [ 53 ] He told the court that he and P.F. met and had two children together. It was his testimony that when they lived together he changed diapers, cooked and did other things with the children. His testimony that the duties were, in his words, “fairly well split” is in contrast to P.F.’s testimony that she was the main caregiver. [ 54 ] He testified that his relationship with P.F. “went south” and she moved back to BC.

He says they spoke of visits and that he wanted them to come back to Alberta to visit with him and his family. He explained that money was tight and he couldn’t go to BC. [ 55 ] Eventually, in 2009-2010 he met his current partner, C., and that he has lived with her for about five years. [ 56 ] In August 2015, he came out to see the kids. The visit was arranged with the grandmother through phone calls.

They went to the zoo, to Vancouver Island, and after the three day visit he went back to Alberta. [ 57 ] It appears that sometime in October a social worker contacted him and suggested that he come down to Vancouver for a January 2016 court matter. He did come down. He met with a family justice counsellor and through the assistance of duty counsel brought an application for parenting time. [ 58 ] In May 2016, a social worker worked with Alberta authorities to see whether it would be appropriate for the children to go to Alberta to visit their father. The social worker said that there was a ‘homestudy’ done.

Although, I think she misspoke and really meant to say that there was a home visit done. Criminal record checks, as well as checks regarding any ministry involvement were done. There were no red flags. That is to say, both the BC and Alberta ministry authorities were of the view that the visits should take place. [ 59 ] There was also an August 2016 visit. The social worker told the court that they camped and did other activities. She testified that she spoke with the children after both visits, and in her words, “they enjoyed the visit”. [ 60 ] Mr. Boyd asked Mr. R. what his plan was. Mr.

R. said, “I would like the kids to join me and my family.” He said that they would go to school, he’d be involved in their school and after school activities. They would have medical and dental. He also said that they would have access to some counselling – in his words, “I think that wouldn’t be a bad thing.” They would live in a house. We have three bedrooms, a back yard, D. would have his own room and the girls would share bunk beds.

The school is one block away and there is a splash park, soccer field and baseball fields all a couple of minutes away. [ 61 ] I believe the essence of his testimony can be seen in his words when he was asked about his opinion as to P.G. raising the children on a full-time basis in the future. He said, “she has raised her kids, she is getting older, I am their dad, I have a stable job and a stable home and I can provide for them too.” [ 62 ] Mr. Boyd asked the social worker whether any further information would be required from the father regarding a potential

move to Alberta. The social worker said that the director supports his application to have the children move to Alberta. There are no health concerns there and he is a healthy biological parent. There are no concerns over substance abuse or parenting ability; although we recognize there is a clear attachment to their grandmother. (

g) The Ability of the Parties to Cooperate [ 63 ] Perhaps one of the most unbelievable aspects of this case is the relationship between all the people that want to be the children’s guardian. Grandmother and father arranged to work together to have the children visit their father in Alberta. They executed the arrangement. They each drove half way to meet the other to assist in accomplishing the visit. They spent money, time and energy because they knew the visits would be in the best interests of the children.

They went out in restaurants together in BC, knowing that there hasn’t been enough time together in the past but that it was in the best interest of the children to do it now. [ 64 ] Grandmother, when testifying about father says that she and C.V.R. got along “pretty good”. To be clear, she is of the view that he is not a bad guy and she said, “I don’t have anything bad to say against C.V.R.” [ 65 ] Mr. Boyd asked Mr. R. his opinion as to the type of contact the children should have with their mother and grandmother. He testified that he totally agreed that they should have a relationship with them.

In the summer time, he said they can figure something out; they could stay with their grandmother. In his words, “I’d make it work.” He said he supported supervised visits with P.F. He even went further and said “if her life was to straighten out I would allow unfettered contact”. [ 66 ] Essentially, I believe Mr. R.’s attitude towards how he perceives the family’s involvement in D. and C.’s lives is captured in an answer to one of Mr. Foo’s questions in cross-examination. Mr. Foo asked a number of questions around whether Mr.

R. would allow P.G. or P.F. to help with homework, get information from doctors, or attend school functions such as teacher-student meetings. Mr. R. said, “the more support for the kids the better”. [ 67 ] Ms. Bulatovic, in her closing submissions, could not have made the point more clear. With respect to their ability to communicate, she submitted that there was “no evidence of difficulty in their contact that would hinder communications regarding access or any other issue.” [ 68 ] Mr. R. did not look very comfortable on the stand. It was obvious to me that he was not happy being in court. He, as Mr.

Boyd submitted, is a man of few words. But he had nothing bad to say about anyone. [ 69 ] I have never seen such cooperation. I usually see antagonism. I usually see parties that couldn’t agree on the time of day. I applaud all of you for putting your feelings aside and focusing on what is best for these children. CONCLUSION [ 70 ] Ms. P.G.W. – Ms. Bulatovic has argued very well on your behalf. She submits to me that you would be the best caregiver because C.V.R. has been absent for so long. I agree that you have the ability to continue to care for these children.

But I do not believe that C.V.R. is excused from his responsibilities just because he has been absent. [ 71 ] P.G.W., you have taken your duties as a grandmother to a whole new level. But I find that it is time for you to step aside and let C.V.R. be D. and C.’s father. He has not done a great job in the past, and he is asking for the chance to make up for that. He does not need to make that up to you, or me; he needs to make it up to his two children. [ 72 ] I know you think of D. and C. as your babies. But they are his too.

Just because you stepped in when nobody else did, doesn’t take away from the fact that he is their father and has a responsibility to them.

And while he has not been in the past, he has the ability to be a responsible father for them now and in the future. [ 73 ] They have the opportunity to live in a caring, loving environment, in a home, with their father and step-sister and step-mother. [ 74 ] They would not be the healthy, happy children they are without you; and D., C., C.V.R. and your daughter will forever be in your debt. [ 75 ] It is now time to be their grandmother and allow C.V.R. to be their father. [ 76 ] Whether you move to Alberta or not, it is this courts expectation that Mr.

R. will do everything possible to keep the ties between you and the children strong. In the ideal world, I would think visits at Christmas and other holidays such as summer will greatly benefit the children. I know that you and Mr. R. will work together to help your daughter see the children as well. Mr. R. will have the power to delegate and allocate parental responsibilities to you during these times. [ 77 ] I recognize that there is no perfect time to move children who have developed such strong ties to their environment. These transitions need to be accomplished with careful consideration.

It is not as simple as Mr. R. might like. You can’t just take them back with you. While I appreciate that Mr. R. would rather have the children with him sooner than later, the reality is that they are still the subject of a CFCSA order. In law, the Director is responsible for their well-being. It is my recommendation, if not direction, that the Director utilize its expertise in transitioning the children from one place to another. [ 78 ] Having considered the best interests of D. and C., I am satisfied that certain orders need to be made. ORDER OF THE COURT 1.

The court is satisfied that C.F.W. and P.F.W. are the guardians of D.V.R., born [omitted], and C.C.R., born [omitted], pursuant to Section 39(1) of the Family Law Act .

2. Each guardian will advise the other guardian of any matters of a significant nature affecting the children. 3. Under Section 40(3) of the Family Law Act , C.V.R. will have all the parental responsibilities for the children. 4. Under Section 69(2) of the Family Law Act , C.V.R. may relocate the residence of the children from British Columbia to Alberta upon the following terms. If there is a CFCSA file, then the relocation has to be done with the Director’s approval. (

i) P.F.W. shall have reasonable parenting time at dates and times agreed between the parties; (ii) P.G.W. will have reasonable contact with the children at dates and times agreed between the parties; (iii) The parties will (

a) put the best interests of the children before their own interests; (

b) encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent’s partner in a positive and respectful manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children. The Honourable Judge A.M. Wolf Provincial Court of British Columbia