D.B. v. B.B. Date:, 2017 BCPC 359

Citation: D.B. v. B.B. Date: 20171018 2017 BCPC 359 File No: F39202 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.B. APPLICANT AND: B.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Applicant: M.S. Jones Counsel for the Respondent: C.L. Walker

Place of Hearing: Surrey , B.C. Dates of Hearing: October 28, 2016; February 23-24, 2017; March 9, 2017; June 21, 2017; July 26, 2017; August 10, 2017; September 22, 2017 Date of Judgment: October 18, 2017 INTRODUCTION [ 1 ] The Applicant, D.B., who is the maternal grandmother (the “Grandmother”) of the child, B., born [omitted for publication] (the “Child”), seeks joint guardianship, primary residence, parenting time, and allocation of parental responsibilities in respect of the Child. The Respondent, Ms.

B.B., who is the Child’s biological mother (the “Mother”) opposes the Grandmother’s application in all respects. [ 2 ] The Mother seeks recognition that she is a guardian of the Child, which the Grandmother does not oppose. The Mother also seeks primary residence and allocation of all parenting responsibilities to her in respect of the Child, which the Grandmother does oppose. [ 3 ] In the event the Grandmother is not appointed a joint guardian, the Grandmother seeks specified contact time with the Child.

The Mother does not oppose contact time for the Grandmother, but she has proposed the specified time acceptable to her at this time. [ 4 ] The Mother gave birth to the Child when she was about 15 years of age. The biological father never lived with the Mother or participated in the Child’s birth or upbringing, and is not a party to these proceedings, although efforts were made to notify him of these proceedings.

He is apparently involved in criminal activities and in the course of these proceedings was in and out of custody. [ 5 ] This Court made various interim orders between August 5, 2016 (the date of the Grandmother’s Application) and the commencement of the hearing of the Application before me on October 28, 2016. Currently, the Grandmother is an interim guardian and the Child resides with her, and the Mother has specified parenting time. ISSUES [ 6 ] The following are the issues in this matter: 1. Should the Grandmother be appointed a joint guardian of the Child? 2.

If the Grandmother is appointed a joint guardian of the Child: a. should the Child’s primary residence be with the Mother or the Grandmother? b. what parental responsibilities, if any, should be allocated to each of the Mother and the Grandmother? and c. how much parenting time should each of the Mother and the Grandmother have with the Child? 3. If the Grandmother is not appointed a joint guardian of the Child, what, if any, contact time should the Grandmother have with the Child?

BACKGROUND [ 7 ] The Grandmother is 52 years of age; has been separated from J.G. (the “Grandfather”) from about 2001; has three daughters: K.T. (“Aunt K.”), B.B. (1) (“Aunt B.”), and the Mother; lives in a four-room rented house in Langley with Aunt B. and the Child; and holds two jobs: one full-time selling essential oils and another part-time at a chicken farm, earning a total of about $38,320.00 per year. [ 8 ] The Grandfather is 49 years of age; lives in Port Alberni; works as a carpenter; and is the father of Aunt B., and the Mother. [ 9 ] The Mother is 19 years of age; has been living in a two-bedroom half-duplex in Port Alberni since August, 2016; is attending an alternative school to complete her Grade 12 diploma and hopes to graduate in 2017; and is on income assistance, however, since January 10, 2017, began working part-time (about 25 to 30 hours), as a cashier/server/bowling equipment handler, at the [omitted for publication] bowling alley in Port Alberni, at the rate of $12.00 per hour plus tips. [ 10 ] Aunt B. is 20 years of age and lives with the Grandmother. [ 11 ] Aunt K. is 32 years of age; lives in Langley; was married in November, 2016; and operates a natural skincare products business. [ 12 ] The Mother’s pregnancy was not revealed until about seven months into her pregnancy.

There were initial discussions about putting the Child up for adoption and Aunt K. possibly adopting the Child, but once the Child was born, the Mother changed her mind about adoption and the family decided to raise the Child as a team. The Grandmother, the Mother and Aunt B. cared for the Child on a day-to-day basis and Aunt K. helped out as often as she could. [ 13 ] The family dynamics changed and tensions grew when the Mother’s boyfriend, Mr. C.C., moved in with the Mother, hardly after a week of connecting with her through Facebook. The Grandmother was concerned that Mr.

C. was taking advantage of the Mother, financially and otherwise. He was known to be a drug addict, formerly to cocaine. He was also a heavy user of marihuana. The

Grandmother alleged that he was self-medicating with marihuana to deal with his mental health issues. The Grandfather described Mr. C. as a “mooch” and “very needy,” and Ms. W. (one of Grandmother’s witnesses) described him as a “hang-around who had nothing to contribute.” [ 14 ] After about six weeks of Mr. C. residing in the Grandmother’s house, things came to a head and the Grandmother asked him to leave. Upset over this, the Mother also left the Grandmother’s house with Mr. C. on July 12, 2016, leaving the Child behind, however, with the intention of taking her back once the Mother got settled with Mr.

C. [ 15 ] The Mother and Mr. C. stayed at various friends’ places for about three to four weeks, which the Grandmother described as “couch-surfing.” During this period, the Mother reached out to the Grandfather to seek his support for her move to Port Alberni. There, she found a place to rent and was looking for employment. [ 16 ] When Aunt K. and the Grandmother refused to return the Child to the Mother to take to Port Alberni, the Mother threatened to call the police on Aunt K. and the Grandmother. As a result, Aunt K. notified the Ministry of Children and Family Development (the “MCFD”).

The MCFD investigated and found that there were no child protection concerns with the Mother. A family case planning conference was held in Langley, British Columbia, on August 10, 2016, at which, among others, the Mother, Mr. C., the Grandmother and Aunt K. participated. The action plan arising out of the family case planning conference included: the Mother and Mr.

C. moving to Port Alberni on August 11, 2016, and moving into their new residence on August 15, 2016; the Mother picking up the Child on August 16, 2016, from Aunt K.’s residence where the Child was residing at that time, or if that date did not work, then on September 1, 2016; the Mother arranging with the Grandmother to pick-up the Mother’s clothes from the Grandmother’s house; and also the Mother visiting the Child before she left for Port Alberni on August 11, 2016. Although drug testing for the Mother and Mr.

C. was considered at this meeting, I notice that it was not included in the action plan that the parties agreed to. A review family case planning conference was scheduled for September 9, 2016. [ 17 ] Contrary to the agreement reached at the MCFD family case planning conference, the Grandmother refused to return the Child to the Mother on the basis that the Mother and Mr. C. were unstable, did not have sufficient financial resources and were living with the Grandfather. At this point, the Grandmother retained legal counsel and filed her application in court for guardianship of the Child and other relief.

She also made an ex parte application and obtained various interim orders, including a non-removal order. When asked about the ex parte application and why she did not provide notice to the Mother of her application, she said she could not recall. Also, in a number of other instances, which I will refer to in my discussion, the Grandmother said she could not recall the answer or the circumstances when it would not aid her cause. [ 18 ] The Grandmother thwarted any further attempts by the Mother to take the Child back by putting in place the non-removal order. Disappointed, the Mother left for Port Alberni.

With the assistance of the Grandfather, she established herself in a two-bedroom half-duplex with a big bathroom. She set up one room for the Child. In an effort to complete her Grade 12 education, she enrolled in the VAST program, which is a young mothers’ group for persons 18 and over. She arranged for daycare for the Child, with the costs being subsidized while she is at school. She also sought out and is receiving psychological counselling for some of her psychological and emotional issues, which I will elaborate below. Finally, she also got a part-time job at the bowling alley I mentioned above.

ANALYSIS [ 19 ] Aunt K., Aunt B., J.M. (a friend of the B’s family for about seven or eight years through his association with the Mother and Aunt B. through their school), and C.W. (a friend of the Grandmother for about 10 or 11 years) testified on behalf of the Grandmother, and the Grandmother also testified. [ 20 ] The Grandfather testified on behalf of the Mother, and the Mother also testified. [ 21 ] The Grandmother’s witnesses were very supportive of her, although there were some inconsistencies in their testimonies, which I will refer to when discussing the issues.

The Grandmother’s memory on issues she did not want to elaborate on was selective, casting doubt on her credibility. Most troubling was Mr. M.’s evidence, which I found inconsistent and self-serving in many respects and I reject his evidence in its entirety. [ 22 ] I will now turn to the issues in this case. I have set out in

Schedule A to these reasons all of the statutory provisions relevant to my discussion. 1. Should the grandmother be appointed a joint guardian of the child? [ 23 ] Section 51(1)(

a) of the Family Law Act , [ SBC 2011]

Chapter 25 (the “ FLA ”) permits the court to appoint a person as a child’s guardian provided that that person, under section 51(2) of the FLA , provides evidence to the court respecting the best interests of the child as described in

section 37 of the FLA and complies with the formalities under s. 52 of the FLA and Rule 18.1 of the Provincial Court (Family) Rules , B.C. Reg. 417/98 (the “ Rules ”). [ 24 ] The Grandmother led evidence respecting the best interests of the Child and confirmed that she has complied with Rule 18.1. Counsel for the Grandmother confirmed that the Child’s biological father was aware of these proceedings. [ 25 ] The Grandmother submits that it is in the Child’s best interest for her to be appointed a joint guardian of the Child.

Her primary argument is that the Mother uses marihuana on a regular basis and does not have the ability, financial or otherwise, to provide a safe and stable home for the Child, that the Child has been with her since the Child’s birth, and that she can provide everything the Child needs. [ 26 ] The guiding provision, of course, is s. 37(1) of the FLA which states that in making an agreement or order under

Part 4 of the FLA respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [ 27 ] To determine what is in the best interest of the Child, I must, according to s. 37(2), consider all of the Child’s needs and

circumstances, including those factors listed under s. 37(2)(

a) to (j). Section 37(3) states that “[a]n agreement or order is not in the best interest of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.” [ 28 ] The Child is three years old and is described as a happy and healthy child. She has some special needs in that she was born with a fused right arm and requires ongoing exercising of her arm to facilitate mobility. It is noteworthy that the Grandmother and her family have always been there for the Child since her birth.

However, the Mother contends that the Grandmother’s house is not a safe place for the Child to grow up in for various reasons (which I will discuss below), that the Grandmother is withholding the Child unreasonably from her and that it cannot be in the Child’s best interest to be separated from her own mother and be raised by other family members when she is willing and capable of raising her own daughter. [ 29 ] I will now address the factors listed in s. 37(2) of the FLA : (

a) THE CHILD’S HEALTH AND EMOTIONAL WELL-BEING: [ 30 ] This factor encompasses many aspects including the Child’s physical, psychological and emotional safety and security. [ 31 ] The evidence indicates that the Child is generally healthy and doing well with the Grandmother. The Grandmother has gone out of her way to provide for the Child’s physical needs. A whole room in her house is dedicated as a playroom for the Child with ample toys and amenities, and the Child also has a live cat that she adores.

Since the Grandmother works full-time, the Child has been attending a nearby daycare since September 2016, and the daycare reports that the Child “has settled in well and is a happy little girl.” [ 32 ] The Grandmother also has many family members who live close-by and maintain regular contact with the Child. As I said earlier, Aunt B. lives with the Grandmother and helps with the day-to-day care of the Child. Aunt K. lives about 10 minutes from the Grandmother’s house and visits with the Child frequently; Aunt K. says almost every other day but the Grandmother says twice a week.

Aunt K. takes the Child to the park and other outings, and for visits with the Grandmother’s mother, S.B. (the “Great-Grandmother”), who also lives close-by. All the family members get together frequently at the Great-Grandmother’s house.

The Child has a number of second cousins she regularly plays with and is best friends with one of them who is about three months older than her. [ 33 ] What is missing from this rosy family picture is the inclusion and active involvement of the Mother in the Child’s life from about mid-July 2016 to the present date – it turns out, this is not because of the Mother’s lack of trying.

Despite the Mother’s repeated efforts to have the Child returned to her and her continued plea to spend quality time with the Child, the Grandmother has not exactly been accommodating. [ 34 ] The many text messages between the parties filed in evidence show a pattern of strained communication – almost a love/hate relationship between the Mother and the Grandmother. To understand the dynamics between them, it is necessary to explore a bit of their family past. [ 35 ] The Grandmother and Grandfather lived together in a common-law relationship for about 12 years in Langley, British Columbia.

While they were together, they consumed, in the Grandfather’s words, “a lot of” crack cocaine and “way too much for [his] liking.” There were incidences of domestic violence between them. The Grandfather admitted to one incidence of him breaking the Grandmother’s nose and giving her a black eye. He was charged and convicted of assault in 2000 as a result of this incident. The Grandfather testified that the Grandmother was, at times, the instigator of assaults on him.

He said at one time, the Grandmother threatened to kill her and the children, so he returned to the Lower Mainland from Vancouver Island where he was working and lived with the Grandmother for a while. He said when they broke up, the Grandmother was using hard drugs and that he believes that she still uses hard drugs. All of the other witnesses, except the Mother, disagree that the Grandmother still uses hard drugs. [ 36 ] When the Grandmother and Grandfather started their relationship, Aunt K. was living with the Great-Grandmother, and she later moved in with the Grandmother and Grandfather.

Aunt K. testified that the Grandfather made their lives difficult with his drug use and violence against the Grandmother. She said when she was about thirteen years old, the Grandfather tried to get her to smoke crack cocaine, although the Grandfather denies this assertion. There was also other evidence about the Grandfather’s inappropriate behaviour in the presence of, but not directed at, Aunt K., Aunt B., and the Mother when they were younger. [ 37 ] Both Aunt K. and Aunt B. said that the Grandmother was loving and caring, and that they had a happy childhood. Both were very supportive of the Grandmother.

Aunt K. disagreed with the Grandfather’s assertions that the Grandmother was aggressive and attacked him on several occasions, that she was intoxicated by illegal drugs or that she threatened to kill herself. Aunt K. said she has no concerns with the Grandmother’s parenting skills. [ 38 ] Ms. W. was also very supportive of the Grandmother. She described the Grandmother as a funny, thoughtful, giving and supportive person with a good heart. [ 39 ] The Mother, on the other hand, was not as complimentary of the Grandmother as some of the other witnesses.

She did say that when she was younger, her relationship with the Grandmother was good and that the Grandmother never used any violence against her as a child.

In May of 2016, the Mother sent a text message to the Grandmother for mother’s day, which in part read as follows: “. . . happy mother’s day to Danielle Boseley , my beautiful mother, don’t know what I would do without you mom, raising 3 kids pretty much on your own, always being there for us protecting us n guiding us, I have really realized more n more how great u are mama, . . . ” [ 40 ] The Mother points out that since writing this statement in May 2016, things have changed and she feels differently now in light of everything that has happened to her, emphasizing that no family should prevent a mother and her child to be together. [ 41 ] There can be no doubt from the evidence that the relationship between the Mother and the Grandmother was tense and acrimonious.

The Grandmother testified that the Mother was rebellious at age 13, she ran away from home a few times, she was caught stealing from Walmart, Save-On-Foods and family members, she smoked marihuana and drank, and she did not complete even Grade 9.

[ 42 ] As I said before, the Grandmother’s main contention in these proceedings is that the Mother is a habitual user of marihuana, and she does not have the ability to provide a safe and stable home for the Child. She had huge concerns with the Mother living with Mr. C.

She was open to having the Mother come back to live with her and raise the Child, together with her and Aunt B., as the Mother had done from the birth of the Child in April 2014 until July 2016 when she left the Grandmother’s house to move to Port Alberni. [ 43 ] However, the Mother insists that she does not feel safe or comfortable in the Grandmother’s house and wants to be able to stand on her own feet and raise her daughter as she sees fit. She stated many reasons for why she feels unsafe at the Grandmother’s house and why she thinks it is unsafe for the Child to grow up in.

However, some of the other witnesses disagreed with many of her reasons. Her reasons are as follows: a. Aunt B. was always the favourite of the family, and the Mother never felt accepted, perhaps she says because she was chubby. b. The Mother was not treated right, and felt her family thought she was dumb, and the Grandmother always favoured Aunt B. and did not help the Mother with her school work. c. The Grandmother alienated the Mother and Aunt B. from their father – the Grandmother denies this, but the Grandfather believes this to be true. d.

The Grandmother used to work as a receptionist at a massage parlour, which was a front for a prostitution operation, and the Grandmother knew this and she still exposed the Mother and her sisters to the people working at the parlour – the Grandmother says this was a wellness center and not a prostitution operation; however, she admits that after a police investigation, she was arrested and charged, but the charges were later dropped. e. The Grandmother is a drug user – the Grandmother admits she used hard drugs while she was living with the Grandfather, but says she has been clean for many years.

Her witnesses also deny that she currently uses illegal drugs. f. The Grandmother’s house was a party house, with strange people engaging in alcohol and illegal drug use; the Mother saw drug paraphernalia in the bathroom and in the carport; on a number of occasions, she saw the Grandmother and her friends go into the bathroom and come out appearing intoxicated by drugs; these strange people would be rude to her and her sisters and they would engage in sexual activity in the kitchen, and the dog would bark and she would have difficulty putting the Child to sleep – the Grandmother denies all of this. g.

Aunt K. and the Grandmother always partied – both Aunt K. and the Grandmother deny this; they say it was the Mother who always had her friends over at the Grandmother’s place creating the party atmosphere. h. The Mother saw Aunt K. engaged in sexual acts in the kitchen – Aunt K. denies this. i. One time, in an intoxicated state, Aunt K. pushed and choked the Mother – Aunt K. does not recall this incidence. j. Aunt K. was involved in drug trafficking – Aunt K. admits that until about a year ago, she sold marihuana products, but she does not do that anymore.

She also admits that she was arrested in the United States of America for drug trafficking, but was not charged; after investigation, she was released. k. Aunt B.’s boyfriend, C., who used to live with Aunt B. in the Grandmother’s house was a drug dealer, and he and Aunt B. often argued with each other, and one time he threatened to punch the Mother in the face – Aunt B. and the Grandmother deny that C. was violent, but the Grandmother admits that C. and Aunt B. argued a lot. l.

More serious is the Mother’s assertion that the Grandmother failed to recognize the signs of abuse and failed to protect her from the sexual abuse she suffered from about age eight to twelve at the hands of the Grandmother’s father who is now deceased. The Mother alleges that the Grandmother knew that her father was an abuser as she had admitted to the Mother that the Grandmother was also abused by her father – The Grandmother said she does not recall making such an admission. When she was cross-examined on whether she was sexually abused by her father, she said she could not recall.

I found this answer perplexing. She did not answer "yes" or “no”. It is hard to believe that one would not remember if one was sexually abused or not, unless perhaps if the abuse occurred when the victim was

very, very young – likely as a baby or a toddler. The case law is replete with examples of persons traumatized throughout their lives as a result of them having been sexually abused as a child. m. In spite of the Mother’s repeated requests to return the Child and to visit with the Child after the non-removal order was in place, the Grandmother was not co-operative and insisted that the visits could occur only on her terms. Therefore, the Mother says the Grandmother cannot be trusted to act in the best interest of the Child when she knowingly withholds the Child from her own mother. n.

The Mother said “how can I feel comfortable at a house where people are trying to take away my daughter?” [ 44 ] There was a lot of conflicting testimony between the Mother and the Grandmother, Aunt K. and Aunt B. as a group, and also between the Grandfather and the Grandmother and Aunt K. as a group. [ 45 ] The essence of the evidence of the Grandmother, Aunt K. and Aunt B. is that the Mother is not fit to parent the Child on her own due to her use of marihuana, unstable home environment and lack of financial ability. They referred to the Mother’s stealing, drinking, smoking, and partying with her boyfriends.

They alleged that she was smoking and drinking while she was pregnant with the Child, and that she failed to breast feed the Child for a longer period of time. They disagreed with her method of disciplining the Child. They alleged that the Mother’s behaviour was influenced by and was focused on pleasing Mr.

C., rather than doing what was best for the Child. [ 46 ] The Mother’s response to all of this is that she was introduced to marihuana by her grandfather when he began sexually abusing her; the stealing was a consequence of the sexual and emotional abuse she suffered, but after her pregnancy, she realized there was more to life and she has made amends and has not stolen since and will not steal again; smoking marihuana was a coping mechanism, but she has significantly cut down since her pregnancy and with the assistance of the counselling she has been receiving, she has learned to understand her triggers and address them by keeping busy; and she did not breast feed the Child for a longer period of time because she did not produce enough breast milk. [ 47 ] The Grandmother and Aunt K. also allege that the family support the Mother claims to have in Port Alberni on her father’s side of the family is completely inadequate.

The Grandmother said the Grandfather was essentially a delinquent father to the Mother and Aunt B., in that he hardly visited them, and never paid any child support other than occasional cash gifts of $50.00 for the girls’ birthdays and at Christmas. The Grandfather denies this and says he deposited funds into the Grandmother’s bank account whenever he could. They point to the Grandfather and his two brothers being addicted to drugs. The Grandfather admitted that they were addicted to drugs in the past, but they are all clean now.

He pointed out that his sister never had a drug problem and she is well-established in the area, and his extended family, including his siblings, nieces, nephews and grand-nieces and grand-nephews are all there to support the Mother and the Child. He said his niece has two children who are close to the Child’s age and that his family sees each other quite frequently. [ 48 ] Needless to say, there was a lot of blaming and finger pointing, and conflicts in the evidence I heard.

However, what emerges out of all of this evidence, and which I accept, is as follows: a. everyone dearly loves the Child, and are keen to provide whatever support they can; b. there is extensive family support on both the Grandmother’s and the Grandfather’s sides of the family; c. there were serious drug use concerns on both sides of the family in the past, but those concerns have been hugely reduced; d. persons alleged to have posed threats in the past, such as the Mother’s grandfather, Mr.

C., and Aunt B.’s boyfriend C. are no longer in the picture; e. the Mother is actively addressing the concerns the Grandmother has raised; for example: i. the Mother has realized that Mr. C. was not who she thought he was and terminated her relationship with him in January 2017; ii. she is attending and doing well in school and expects to complete her Grade 12 in 2017; iii. she has a clean two-bedroom home in a good neighbourhood, close to all amenities, including the daycare which she has arranged

for the Child; iv. she has made adequate plans to financially support herself and the Child: she has a part-time job, she receives social assistance, and she has made arrangements with a licensed daycare which she can use at a subsidized rate; the Grandfather helps out to the extent he can, including financially and with transportation and other assistance; v. she has a peer group of young mothers support network; vi. she is receiving counselling, free of charge, to address her past sexual and emotional abuse trauma and her ongoing triggers, and to learn coping mechanisms; vii. she has reduced the extent of her alcohol and marihuana use; none of the witnesses allege that she has a drinking problem; although there is some disagreement as to how often she uses marihuana, I am satisfied that it is significantly less than her use when she was residing at the Grandmother’s house; otherwise, it is highly unlikely that she would be able to attend school, work and attend the peer group and private counselling sessions, receive work-related certifications such as Serving It Right and Work Safe BC Occupational First Aid Level 1, and get her Driver’s License.

I accept her evidence that she would not smoke to the extent that it would impair her ability to care for the Child; viii. The MCFD did not find any child protection concerns with the Mother or even with Mr. C. at the time, allowing them to move to Port Alberni. [ 49 ] In the end, I find that the Mother is capable of fulfilling the Child’s physical, psychological and emotional safety and security needs. Just because the Mother is young and has made a few mistakes in her life cannot lead to the conclusion that she is unfit to care for the Child.

What is important to note is all the positive steps the Mother has taken to set her life in the right path and the unparalleled love and commitment she has displayed in wanting to raise her daughter in a loving, caring and safe environment.

If she falters in her commitment, I am sure she knows that the MCFD would be on her heels before long. [ 50 ] In the Grandmother’s case, I have no doubt that the Grandmother can attend to the Child’s physical safety and security needs; however, I question whether the Grandmother can fully fulfil the Child’s psychological and emotional safety and security needs, particularly as the Child grows up and learns why she was not allowed to be united with her mother when her mother was begging to have her returned to her mother’s care. (

b) THE CHILD’S VIEWS: [ 51 ] The Child is too young to express any views. (

c) NATURE AND STRENGTH OF THE RELATIONSHIPS BETWEEN THE CHILD AND SIGNIFICANT PERSONS IN THEIR LIVES: [ 52 ] There is no question that the Child has developed a strong bond with the Grandmother, Aunt B., Aunt K. and their family members who live close by. It is natural that she has developed such a bond, as that is all she has been exposed to in her very young life. She does not have a bond with the Mother’s paternal family members as she has not been exposed to them. The Grandfather testified that nobody informed him about the Child’s birth and that he found out through Facebook.

Then he, his mother and his sister visited the Child when she was about a few months old. He has seen the Child only three times so far and welcomes the opportunity to foster a relationship with her. [ 53 ] It is unfortunate that even though the Mother was involved in the first two years and three months of the Child’s life, the Grandmother appears to have taken every step possible to obstruct the Mother from bonding with the Child.

The evidence indicates that the Grandmother was controlling and imposed unrealistic conditions knowing that the Mother would not be able to comply with them – for example, the Grandmother almost always wanted the Mother to come to the Grandmother’s house for any visits with the Child when she knew that the Mother clearly did not want to come there; the Grandmother also blocked the Mother from her Facebook account; the Grandmother offered to do FaceTime knowing that the Mother did not have an iPhone; the Grandmother would not drive to the ferry terminal to lessen the burden on the Mother to exercise any court-ordered parenting time with the Child; and the Grandmother offered to pay for the Mother’s 2016 Christmas visit to entice her to come to the Grandmother’s house when the Grandmother knew that the Mother was unwilling to come to the Grandmother’s house. [ 54 ] In many respects, Aunt K. also worked in concert with the Grandmother.

Another example that is telling is the visit to the Butterfly Gardens in Victoria in September 2016. Aunt K. testified that she and Aunt B. took the Child to the Butterfly Gardens in Victoria. When asked why on that trip they did not arrange to visit with the Mother, Aunt K. responded that Port Alberni was too far. Even if it was too far, the Mother questions why she was not informed of the visit and given the opportunity to visit with the Child in Victoria rather than having to travel all the way to the Lower Mainland. I agree with the Mother on this point.

This suggests to me that Aunt K. and Aunt B. were not acting in the Child’s best interest as they failed to facilitate as much contact between the Mother and the Child as possible.

[ 55 ] When this matter came before me, I had to make specific orders compelling the Grandmother to facilitate the Mother’s parenting time, with the exchanges occurring at the ferry terminal. [ 56 ] Under these circumstances, I find that the Grandmother did not act in the best interest of the Child or the Mother. It is not hard to understand why the Mother feels alienated by her own mother. (

d) THE HISTORY OF THE CHILD’S CARE: [ 57 ] There is no dispute that the Child has resided at the Grandmother’s house since her birth.

The Mother, the Grandmother, Aunt B., and with some assistance from Aunt K., all as a team cared for the Child for the first two years and three months of the Child’s life, and then from July 2016 onwards (for slightly over a year now), the Grandmother and Aunt B., with some assistance from Aunt K., have been caring for the Child. [ 58 ] I note again that the Child has been in the primary care of the Grandmother for a little over a year now not because the Mother abdicated her responsibilities, but because the parties have been embroiled in this litigation.

The evidence does not support the Grandmother’s assertion that the Mother abandoned the Child, favouring Mr. C. over the Child. (

e) THE CHILD’S NEED FOR STABILITY, GIVEN HER AGE AND STAGE OF DEVELOPMENT: [ 59 ] It is a given that every child needs stability at any age and stage of development. This Child is no different. Stability does not mean stagnancy or no change at all. [ 60 ] There is no question that the Child is well settled in her day-to-day routine at the Grandmother’s house. Again, that is the only environment she has been exposed to. The big gap in this environment is the absence of her Mother and the rest of her family.

While she may be too young to appreciate that now, it is somewhat an orchestrated environment. [ 61 ] In this day and age, it is not uncommon for families to move from one environment to another. There will undoubtedly be a period of adjustment. Some adapt better than others. In this case, the Child is three years old and her roots in her current environment are just forming. While moving to Port Alberni will be an adjustment, I doubt that it will be insurmountable, particularly if the Grandmother and her family assists in the transition. They can Skype, visit and keep in touch with the Child.

Since the Child is well adjusted, I doubt that it will be long before she forms new friends, gets to know her mother’s paternal family, and settles into her new environment. Above all, bonding with her mother will be crucial and invaluable to her growth, stability and emotional well-being, and will no doubt be in her best interest. [ 62 ] The Grandmother’s counsel points out that the Mother has not shown stability in her own life, has not chosen her significant partners wisely and has only recently started her first job. All of this is true; however, she is only 19 years old. She is just beginning her adult life.

While she has made some mistakes, which appear to have emanated from some unfortunate incidences in her life, she claims to have realized her mistakes and has taken concrete steps to put her life back on track. [ 63 ] It is hard to understand the basis on which the Grandmother can challenge the Mother’s stability when the Grandmother was much older than the Mother when she was deeply involved with hard drugs, domestic violence, police involvement, and the like while raising her three daughters. (

f) THE ABILITY OF THE GUARDIAN TO EXERCISE HER RESPONSIBILITIES AS A GUARDIAN: [ 64 ] The parties accuse each other of being incapable of exercising their responsibilities as a guardian due to their respective drug use. [ 65 ] The Grandmother denies that she is currently a drug user. There was conflicting evidence as to the extent of the Mother’s use of marihuana.

The Mother’s evidence is that she is not addicted to marihuana, she has cut down her consumption considerably, she hardly smokes now except when she needs to cope with her fears triggered by memories of her sexual abuse, she is learning to cope with her emotional and psychological trauma through means other than the use of marihuana, and she would “never smoke enough to impair [her]” in caring for the Child. [ 66 ] Considerable time was spent at trial addressing the issue of the Mother not completing a drug test in spite of the Grandmother’s repeated requests.

The Grandmother’s counsel submitted that the court should draw a negative inference from the Mother’s refusal to complete a drug test. However, the Mother testified that at the MCFD’s request she did submit to a drug test on October 13, 2016, but the results were sent to the MCFD and when she followed up with them, she was told that her file was closed as the Grandmother had obtained “temporary custody” (I assume interim guardianship) of the Child. The Mother explained that she did not submit to a second drug test because her name was not on the list and further she was asked to pay $300.00.

The Mother’s evidence is that she only uses marihuana and no other illegal drugs. She said she is still prepared to do another drug test if the Grandmother also does one, as she firmly believes that the Grandmother still uses illegal drugs. [ 67 ] I accept the Mother’s evidence with respect to her drug use. I do not find that she was purposely avoiding taking a drug test in the fear of what it might reveal. I found her to be candid in conveying the extent of her drug use.

Therefore, I am not prepared to draw any negative inference. [ 68 ] I also accept the Grandmother’s evidence that she does not currently use any illegal drugs. Even if she was using, there is no evidence to suggest that the Child has been impacted as a result.

By all counts, the Child is doing well at the Grandmother’s house. [ 69 ] The Grandmother’s counsel submits that the Grandmother has raised three daughters and that she is more than capable and has the experience necessary to exercise her responsibilities as a guardian, and questions the Mother’s ability to solely exercise the responsibilities required of her as a guardian, as she has only parented the Child for a short period of time, and that too only with the assistance of the Grandmother and Aunt B. and Aunt K.

[ 70 ] First of all, the Grandmother should be applauded for raising three children in the face of various challenges, including her drug use and her tumultuous relationship with the Grandfather, and also for taking on the task of raising the Child. No doubt, she has many more years of parenting experience than the Mother. However, if merely the number of years of parenting experience were the yardstick to determine the suitability of a guardian, all new parents would be disqualified. That just cannot be!

One cannot overlook the fact that the Grandmother too was once a new parent. [ 71 ] While the Grandmother’s efforts in caring for the Child to date are commendable, I do have some concerns about her ability to exercise sound judgment. The following are a few examples that stand out in my mind: a. The Grandmother points to the Mother’s marihuana use as the primary basis to claim that the Mother is not fit to raise the Child. However, she fails to appreciate the irony in her own circumstances, for example: i. She was into hard drugs for a number of years while raising her children; ii.

Aunt B. smokes marihuana; and iii. Aunt K. sold marihuana products until recently. b. The Grandmother allowed Aunt B.’s boyfriend, C., who is allegedly a drug dealer, to live in her house for about a year, and yet she testified that she did not know his last name. It is not clear whether she was protecting him by not disclosing his last name or whether she truly did not know his last name. If the latter is the case, it begs the question as to her judgment in allowing an unknown person to live in her house with her young daughter, the two of whom, she testified, argued a lot. c.

There was overwhelming evidence of alcohol and drug use in the Grandmother’s house, although there was some conflict as to the people engaged in such activity – whether they were the Mother’s or the Grandmother’s friends. Regardless of who they were a reasonable person would expect that the Grandmother, being the adult responsible for her household, should have curtailed such activity in her house, particularly when a young child was in the house. The evidence is not clear whether she partook in such activity. d.

The background checks required under Rule 18.1 shows one entry of a protection order against the Grandmother, which she appended as Exhibit B to her Affidavit in support of her application for guardianship of the Child. This entry appears to be in line with the Grandfather’s testimony that at times the Grandmother was the aggressor. However, on cross-examination, the Grandmother said she could not recall whether there were any family protection orders against her. e.

Although some may view this as a minor issue, the Mother questions the Grandmother’s judgment and objects to the Grandmother allowing the Child to sleep with her. The Mother feels that the Child should sleep in her own bed. f. The Grandmother does not seem to appreciate the damage that could be caused by the abusive language she uses in her communication with the Mother. The text messages in evidence contain many examples of her abusive language.

While the Mother also uses abusive language in her communications with the Grandmother, the Grandmother, being the older and more experienced person, does not seem to exercise any restraint in her choice of words; she spews threats, disrespect and vulgarity. g.

Rather than supporting the Mother and helping her through some of her challenges, it is disappointing that the Grandmother is competing with the Mother, and making the Mother’s life even more difficult by fighting over the Child. [ 72 ] If the Grandmother’s treatment of the Mother is any indication, I have concerns about the Grandmother’s ability to exercise her responsibilities as a guardian. It is not sufficient for a guardian to provide only the physical needs of the child. The guardian must also be able to provide for the child’s psychological and emotional needs. (g) & (

h) IMPACT OF ANY FAMILY VIOLENCE: [ 73 ] There was family violence in the relationship between the Grandmother and the Grandfather. The Mother said she experienced violence or threat of violence at the hands of Aunt K. and Aunt B.’s boyfriend, C. C. no longer resides at the Grandmother’s home and Aunt K. does not recall the event the Mother is referring to. Besides, these events are all historical. [ 74 ] There is no evidence to suggest that the Child is exposed to any family violence in the Grandmother’s home. [ 75 ] As far as the Mother’s home in Port Alberni is concerned, the Mother now lives on her own, as Mr. C. left in January 2017.

[76] The Grandmother’s counsel submits that there is evidence that the Mother was physically abusive towards the Grandmotherand also towards the Child. I believe the first reference is to Ms. W.’s testimony that the Mother one time physically pushed theGrandmother. Ms. W. did not elaborate on the circumstances of this incident, nor was there any suggestion of such repeated behaviour. Regarding the Child, the allegation is that when the Child was about two years old, the Mother strapped her to a chair and left her alonein a room. The Mother denies this allegation.

She explained that when the Child misbehaves, she would talk to the Child to teach theChild right from wrong. She did admit to putting up a gate and using “time-out” as a discipline measure. The Mother’s counsel submitsthat this type of discipline is within the range of choices a reasonable parent would make. I agree that “time-out” is a common form ofdiscipline parents employ. Based on the evidence before me, I am unable to conclude that these incidents can be characterized as familyviolence. [77] I am satisfied that there is no concern with respect to factors (

g) and (

h) in either of the households. (

i) REPERCUSSIONS OF REQUIRING CO-OPERATION AMONGST GUARDIANS: [78] The Grandmother’s counsel submits that the Grandmother has been open to co-operating with the Mother in discussing issuesrelating to the Child. With respect, I disagree. The evidence is abundantly clear that at least since July 2016, the parties have not beenable to co-operate with each other. The Grandmother was certainly not co-operating, but appears to have been exerting her dominanceover the Mother, knowing of the Mother’s delicate and vulnerable circumstances.

She failed to honour the agreement the parties made atthe MCFD family planning case conference. Instead, she applied to court and sought a non-removal order without notice to the Mother. In spite of a court order being in place for the Mother to have liberal parenting time with the Child, the Grandmother did not facilitatesuch parenting time. Instead, she imposed ultimatums to the Mother as to if, when and where the Mother could see the Child. There wasminimal accommodation for the Mother’s wishes or requests. The various text messages between the parties reveal despicable tone andlanguage.

As I said before, once this matter came before me, I had to make further orders specifying the parenting time arrangements. [79] The Grandmother’s conduct in this respect is troubling. This kind of alienation of the Mother from the Child is certainly not inthe best interest of the Child. This gives credence to the Mother’s assertion that the Grandmother alienated the Grandfather from theMother and Aunt B. when they were growing up. The Mother still harbours anger over this alienation, and considers it emotional abuseand is seeking counselling to address this and other issues.

She has now reached out to her father, who testified to similar alienation, hurtand lost time with his daughters. It would truly be tragic if history were to repeat itself subjecting the Child to such hurt and trauma. Shedeserves to know, love and be with her mother. [80] The Mother’s counsel submits that the relationship between the parties suffers from a power imbalance inherent in a parent-child relationship, which is not conducive to co-operation. I agree.

I am of the view that, at least in the near future, there is likely to benegative repercussions on the Child and the Mother if the parties were left on their own to co-operate with each other on issuesrespecting the Child. I hope that their relationship will improve in the long run, benefitting all concerned. (

j) ANY CIVIL OR CRIMINAL PROCEEDING RELEVANT TO THE CHILD’S SAFETY, SECURITY OR WELL-BEING: [81] This factor is not applicable as there are no such proceedings. Parties’ submissions and case law on the guardianship issue: [82] The Grandmother’s counsel submits that all of the factors that I must take into consideration with respect to the Child’s bestinterests are either neutral or favour the Grandmother being appointed a joint guardian and having primary residence. He primarily relieson the case of De Delley v.

Yestrau et al, 2016 MBQB 35, wherein the court, at paragraph 73, said: While the general principle may be that a parent is preferable to a grandparent, all else between them must be equal before this principleis applicable. [83] The facts in the De Delley case are quite different from the case before me. The De Delley case involved a seven-year old boywhose father was deceased prior to his birth and at the time of the trial he was living with his paternal grandparents who had interimguardianship of him. The main question in this case was where and with whom the boy should live on a full-time basis.

The paternalgrandparents were seeking a final order for guardianship. The mother and the maternal step-mother and the maternal grandfather werealso embroiled in this litigation. There were serious safety concerns with the boy’s mother and the court found her to be an untruthfulwitness (para. 54). After examining the pros and cons of the parties involved and what each of them could bring to the boy’s life, thecourt concluded at paragraph 69 that the paternal grandparents best met the requirements set out in s. 2(1) of The Child and FamilyServices Act, C.C.S.M. c. C80. Under this

section the best interests of the child was the paramount consideration in all proceedings underthe Act affecting the child (para. 64). [84] Before making the statement at paragraph 73 that I have set out above, the court in De Delley referred to a number of cases themother in that case was relying on. At paragraphs 66 and 68, the court said: [66] . . . In F.J.B. v.

D.P.J., 2005 MBQB 26, the court [referred to the recommendation of a Family Conciliation assessor that], “whenbiological parents come forward . . . and they are able to adequately care for the child or children, then these parents ought to be giventhe care of the child in preference to the grandparents” (para. 14), and, “There is no question that wherever they go these children shouldnot be separated” (para. 17). [68] [The mother] further cites Winnipeg Child and Family Services (Northwest Area) v. C.(S.) et al (1993), (MBKB), 86 Man.

R. (2d) 203 (Q.B.), a guardianship case, involving a mother and grandmother, at para. 26:

She is C.’s mother and that is a significant fact. If all things were equal, her right to care for C. would take precedence over the claim of the grandmother . . . [ 85 ] The Mother’s counsel in the case before me submits that “if any principle can be imported from De Delley , it is that parents should normally have priority over grandparents in [guardianship] disputes.” He says that from his research of the case law in British Columbia in this area, no general principles of the law are enunciated, but that reported cases of grandparents being awarded guardianship and primary residence all revolve around situations where the parent(

s) were unable to parent for extended periods and there were severe safety concerns with the parent(s), and the grandparent(

s) effectively took on the role of a parent for a significant period of the child’s life. He referred to a number of cases along these lines. [ 86 ] I have reviewed all of the authorities both counsel referred me to. However, I do not intend to discuss them in any detail as the factual circumstances in these cases are different from those in the case before me.

The factual circumstances in each case will dictate what is in the best interests of the child or children at issue in that particular case. [ 87 ] The analysis in these types of cases should not be focused on who is a better guardian: the parent or the grandparent. It should not be a competition between the parent and the grandparent. In many cases, the grandparents may be in a better position in terms of their age, experience and resources (financial and otherwise) to provide a better home for the child, but that may not necessarily be in the best interest of the child.

If after engaging in the child’s best interests’ analysis, including considering the factors in s. 37(2) of the FLA , the court determines that both the parent and the grandparent meet the “best interests of the child” test, then the parent should be given preference over the grandparent to be a guardian of the child. This does not mean that one is better or worse than the other. I doubt that any parent is a perfect parent. As the saying goes, being a parent is one of the hardest jobs one faces in life. [ 88 ] In P.G.W. v.

P.F.W. and C.V.R., 2017 BCPC 36 , the court awarded guardianship and primary residence of the two children at issue to their father in spite of the fact that the father resided in Alberta and he had been absent from the two children’s lives for a number of years, as opposed to their maternal grandmother who had been housing and caring for them for many years. The mother in this case suffered from serious addictions and she supported the grandmother’s application for guardianship.

The court in this case, addressing the grandmother, said as follows, at paragraphs 71 to 75: [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. [ 89 ] In P.G.W. , the father was by no means a perfect parent, and yet he was given the opportunity to parent his children. [ 90 ] In the case before me, in weighing all of the evidence, I am not satisfied that it is in the Child’s best interest to appoint the Grandmother as a joint guardian of the Child. [ 91 ] Even if I accept the Grandmother’s counsel’s argument that all of the s. 37(2) factors that I must take into consideration are neutral, according to De Delley and the other cases I have discussed above, I conclude that the Mother, and not the Grandmother, should be the guardian of the Child. [ 92 ] As in some of the other cases, the Mother is by no means a perfect parent.

Just because she has some challenges (it appears largely due to some of the abuses she suffered as a young child), she should not be deprived of raising her own child. The Mother’s challenges are nowhere near the extremities referenced in some of the cases counsel referred me to where guardianship or joint guardianship was granted to one or more grandparents.

Furthermore, I am cognizant of the fact that I have to keep in mind s. 37(4) of the FLA which provides that “[i]n making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” [ 93 ] The Mother has taken active steps to set her life in the right path. I am satisfied that it is in the Child’s best interest for the Mother to be recognized as a guardian of the Child.

As I said before, if she falters, I am sure she knows that the MCFD will be on her case and she risks the removal of the Child from her care. [ 94 ] While understandably, the Grandmother may be disappointed with my decision, I would like her to know that all is not lost. If she and the Mother diligently work on mending their relationship, she can maintain her bond with the Child that she has so lovingly cultivated to date. As the court said in P.G.W. , it is time for the Grandmother to let go of being a mother and embrace being a loving and supportive grandmother. 2.

If the Grandmother is appointed a joint guardian of the Child, then: a. should the Child’s primary residence be with the Mother or the Grandmother? b. what parental responsibilities, if any, should be allocated to each of the Mother and the Grandmother? and

c. how much parenting time should each of the Mother and the Grandmother have with the Child? [95] Since the Grandmother is not appointed a guardian of the Child, and I have found it is in the best interest of the Child for theMother to be her guardian and the Mother is capable of providing a safe and stable home for the Child, I conclude that the Mother shouldhave primary residence of the Child and all parental responsibilities should be allocated to her. As a non-guardian, the Grandmother isnot entitled to any parenting time. 3.

If the Grandmother is not appointed a joint guardian of the Child, what, if any, contact time should the Grandmotherhave with the Child? [96] Sections 59(1) and (2) of the FLA provide that a court may make an order respecting contact with a child to any person,including a grandparent. [97] Counsel for the Mother referred me to two cases which provide a useful discussion of the law respecting contact time: L.M.O. v.S.S. and A.S., 2015 BCPC 328 , 2015 BCPC 0328 and D.D. v. A.C., 2017 BCPC 5.

Both of these cases involved grandparentsseeking contact time. [98] Since the Mother in the case before me is not objecting to the Grandmother having specified contact time with the Child, I willnot engage in a detailed discussion of the factual circumstances of the two cases counsel referred me to. However, I will set out thepertinent passages of the law for ease of reference. [99] In the L.M.O. case, the discussion of the law is found at paragraphs 9 to 15. At paragraph 15, the court said: [15] . . .

The dominant theme of the statutes and case law is of course the best interests of the child and the onus on the grandparent toestablish that contact is an overall benefit in that context. The benefit of contact to the grandparent, no matter how great that might be, islegally irrelevant to this analysis. [100] In the D.D. case, the discussion of the law is found at paragraphs 15 to 25. The court discusses the two schools of thought inresolving disputes regarding grandparent contact time: the parental autonomy approach and the pro-contact approach.

The parentalautonomy approach (para. 17) “assumes that as long as the parent is a fit parent, one can assume that the parent is acting in the bestinterests of the child and the courts should leave it to the parent(

s) to decide whether or not contact with the grandparent(

s) is a good ideafor their child(ren). . . . While parents might not always make the right decision, it is not always the court’s job to second guess andusurp their parental role.” The pro-contact approach (para. 18) “says that contact between grandchildren and grandparents is generally agood thing and in the best interests of the child and should be encouraged.” [101] The court then refers (at para. 21) to the two leading cases in this area: Chapman v. Chapman, (BCSC) andChapman v.

Chapman, (ONCA), and notes (at para. 22) that the Ontario Court of Appeal’s decision is the strongeststatement of the parental autonomy approach and (at para. 23) that the British Columbia decision is more of a hybrid approach, whichheld as follows: a. There is no presumption that grandparent contact is in the best interests of the 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 toestablish otherwise; 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 isin 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. [102] The court goes on to note (at para. 25) that since the British Columbia decision of Chapman v.

Chapman was decided, theFamily Relations Act was replaced by the Family Law Act, which places much emphasis on the best interests of the child and there is nomention of providing any deference to the parent’s decision-making power. However, the court notes that in the more recent decision ofFawcett v.

Read, 2015 BCSC 310, Madam Justice Russell “agrees that although the approach to these types of cases has changedsomewhat under the new Act, the principles enunciated in Chapman generally remain valid and deference to the custodial parent’s viewscontinues to be a consideration; albeit such views can never trump the best interests of the child.” Finally, the court (at para. 56) statesthat a grandparent is ordinarily entitled to contact at the time and for the duration and under the conditions the parent agrees to. [103] In the case before me, in light of the close and loving relationship the Child has with the Grandmother, I find that it is in the bestinterest of the Child for the Grandmother to have contact time with the Child.

The Mother also does not object to the Grandmotherhaving specified contact time with the Child. The Mother has made a proposal for such contact time. I conclude that that should be theextent of the contact time the Grandmother should have. I have outlined that time in the fifth order below. ORDERS

[ 104 ] I make the following orders: 1. The court is satisfied that the Mother, B.B., is a guardian of the Child, B., pursuant to s. 39(1) of the Family Law Act . 2. Under s. 40(3)(

a) of the Family Law Act, the Mother shall have all of the s. 41 parental responsibilities for the Child. 3. The Child shall reside primarily with the Mother. 4. The Grandmother shall co-operate with the Mother in smoothly transitioning the Child, forthwith, from the Grandmother’s residence to the Mother’s residence. 5. The Grandmother shall have contact time with the Child as set out below, and such contact time shall commence 30 calendar days after the date of this judgment: a.

One out of every four weekends from the arrival of the 5:45 p.m. ferry from Departure Bay to Tsawwassen at the Tsawwassen ferry terminal on Friday until the departure of the 5:45 p.m. ferry from Tsawwassen to Departure Bay on Sunday; the dates of the one weekend shall be as agreed to between the parties; if they are unable to agree on the particular dates, the Mother’s decision shall govern. b.

Video-messaging twice per week, on Sunday evenings at 6:30 p.m. and Thursday evenings at 6:30 p.m. for as long as the Child shall tolerate but not to exceed 30 minutes, or such other times as may be agreed to between the parties; this contact may be initiated by the person as agreed to between the parties; if they are unable to agree on who should initiate the contact, the Mother’s decision shall govern. c. Such other contact time as may be agreed to between the parties; if they are unable to agree on any additional time, the Mother’s decision shall govern. 6.

The Grandmother shall be solely responsible for all costs associated with the exercising of her contact time as set out in the preceding order. By the Court The Honourable Judge V. Chettiar Provincial Court of British Columbia

Schedule A Excerpts from the Family Law Act , [ SBC 2011]

Chapter 25 and Provincial Court (Family) Rules , B.C. Reg. 417/98

Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

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

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Assessing family violence 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. Parents are generally guardians 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. Parenting arrangements 40

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

l) exercising any other responsibilities reasonably necessary to nurture the child's development. Parenting time 42

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Orders respecting parenting arrangements 45

(1) On application by a guardian, a court may make an order respecting one or more of the following: (

a) the allocation of parental responsibilities; (

b) parenting time; (

c) the implementation of an order made under this Division; (

d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section. Orders respecting guardianship 51

(1) On application, a court may (

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act , terminate a person's guardianship of a child.

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules , respecting the best interests of the child as described in

section 37 [best interests of child] of this Act. (3) Subsection (2) of this

section applies regardless of whether there is consent to the application under

section 219 [persons may consent to order being made] . Who is entitled to notice 52

(1) Subject to subsections (2) and (3), if an application is made under this Division, the following persons must be served with notice

of the application: (

a) each parent or guardian of the child affected by the application; (

b) each adult person with whom the child usually lives and who generally has care of the child; (

c) any other person to whom the court considers it appropriate to serve with notice.

(3) The court may grant an exemption from a requirement to give notice under subsection (1) if the court considers it appropriate. Orders respecting contact 59

(1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact.

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any other provision of this Act or a regulation made under it, to a parent or grandparent. Rule 18.1 — Guardianship Orders Guardianship affidavit required

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

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

b) provide to the judge any other evidence the judge considers necessary. Interim order may be made

(2) A judge may make an interim order for guardianship without an affidavit in Form 34 having been filed if the judge is satisfied that it is in the best interests of the child that an interim guardianship order be made before that affidavit is filed. Duration of interim order

(3) An interim order under subrule (2) must expire within 90 days after the date of pronouncement unless renewed by a judge. Affidavit required before hearing

(4) Unless a judge otherwise orders, (

a) if the order referred to in subrule (1) is being sought at a hearing, an affidavit referred to in subrule (1) must be filed and served at least 7 days before the date set for the hearing, or (

b) if the order referred to in subrule (1) is being sought without a hearing, (

i) an affidavit referred to in subrule (1) must be sworn not more than 7 days before the date on which the materials in support of the application are filed, and (ii) the child protection records check, criminal records check and protection order records check attached as an exhibit to the affidavit must be dated not more than 60 days before the date on which the materials in support of the application are filed. What to do if information changes

(5) Unless a judge otherwise orders, if the order referred to in subrule (1) is being sought at a hearing and there is a material change in any of the information contained in an affidavit referred to in subrule (1) between the date it is sworn and the date of the hearing, the applicant must do the following before the hearing: (

a) if the change relates to information contained in a records check attached to the affidavit, (

i) obtain a new records check to replace the one that has changed, (ii) file an original and 3 copies of an affidavit attaching the new records check, and (iii) serve a copy of that filed affidavit on each of the parties and on every other person who may be affected by the orders sought; (

b) if the change relates to information that is not contained in a records check attached to the affidavit, (

i) file an original and 3 copies of an affidavit describing the material change, and (ii) serve a copy of that filed affidavit on each of the parties and on every other person who may be affected by the orders sought.