D. D. v. A. C. Date:, 2017 BCPC 5

Citation: D. D. v. A. C. Date: 20170119 2017 BCPC 5 File No: F40997 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D. D. APPLICANT AND: A. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Applicant: Angela Svetlichny

Counsel for the Respondent: Self Represented Place of Hearing: Penticton , B.C. Date of Hearing: January 17, 2017 Date of Judgment: January 19, 2017 Introduction [ 1 ] Following the passing of her step-daughter last year, Ms. D applied for scheduled contact time with her step-grandchild, SC. S is 3 years old. For the most part, her lone surviving parent and father, Mr. C, was opposed to the application. However, during the hearing, he indicated he would be willing to facilitate some contact but not to the extent proposed by Ms. D. Issue 1.

Will it serve SC’s best interest to have contact time with her maternal step-grandmother, Ms. D? If so, how much contact time is appropriate? Overview of the Evidence [ 2 ] On [omitted], CM gave birth to SC. Her father, the respondent in this matter, is AC. Following S’s birth, the couple resided together in Kelowna and Oliver. [ 3 ] On June 1, 2016 Ms. M lost her battle with multiple sclerosis and passed away. [ 4 ] Prior to Ms. M’s death, Ms. D, her stepmother, had contact time with S every second week from Thursday to Saturday, inclusive of overnights.

She also had contact time for weeks at a time during the summer vacation. [ 5 ] In November 2015, when it became apparent that Ms. M would require 24 hour care, Ms. D tried to reach out to Mr. C and see if they could discuss planning for S’s future. Mr. C rebuffed her request, told her he could manage and forced her from his residence. [ 6 ] Ms. D attributed Mr. C’s reaction to caregiver burnout. Although Ms. D continued to have the same regular contact time with her granddaughter, she and Mr. C were unable to resolve their differences. [ 7 ] Following Ms. M’s funeral, Ms. D had her usual contact time with S.

When she picked S up from Mr. C’s residence, Mr. C’s mother said S was asking to see her mother and they did not know how to respond. Ms. D spoke to a worker from the local hospice and was told that it would be a good idea to take S to the cemetery, explain to her that her mother was gone, and encourage her to talk to her. Ms. D did so, and S appeared to respond positively. [ 8 ] When Ms. D asked for contact time again on June 27, Mr.

C told her that someone had complained to the Ministry of Children and Families about him and until he got to the bottom of it he would not allow her to see S. [ 9 ] It was implicit from his comments that Mr. C believed she was responsible for making the complaint. As it would later be determined, his anger was misplaced. In fact, Ms. M was responsible for telling a nurse prior to her passing to speak to the Ministry. [ 10 ] Mr. C also expressed displeasure that Ms. D had taken S to her mother’s gravesite without consulting him. He told Ms.

D that S did not need to be reminded about her mother and that there would be time for that when she got older. [ 11 ] Ms. D continued to text Mr. C pleading to have contact time with her granddaughter. When Mr. C stopped responding, she spoke to a Ministry worker who suggested she apply to the court for contact time. Ms. D filed her application on July 14, 2016 a mere 6 weeks after the passing of Ms. M. [ 12 ] Despite continuing to text Mr. C and seek contact time, Ms. D has not seen her granddaughter since June 27, 2016. [ 13 ] During the hearing, Ms.

D called other family members and a friend to testify about the close relationship that she had with S and many of the fun things they did together. [ 14 ] Mr. C, on the other hand, chose not to testify. However he did mention in closing submissions that he was engaged to a woman with two children of her own and that he and S were living with her family in Greenwood. Greenwood is approximately 1½ hour drive to Oliver where Ms. D currently resides. The Law [ 15 ] At one level claims by grandparents for contact time can seem deceptively simple but at another level very complex. [ 16 ] In an ideal world, parent(

s) will always seek to cultivate the bonds between grandparents and their grandchildren. However, the world we live in is far from perfect. For many it is difficult not to cling to the nostalgic concept of an extended family in which differences of opinion arise, but where all the members remain steadfastly joined by the common bond of family unity. [ 17 ] There are two schools of thought when it comes to resolving disputes regarding grandparent contact time: the parental autonomy approach and the pro-contact approach.

The former assumes that as long as the parent is a fit parent, one can assume that the parent is acting in the best interests 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 idea for their child(ren). Indeed, we entrust fit parents all the time with making important decisions abouthealth, education, religion and the moral upbringing of their children. Some would argue that choosing who the child should havecontact with is precisely the type of decision we must allow parents to make.

While parents might not always make the right decision, itis not always the court’s job to second guess and usurp their parental role. [18] The second approach says that contact between grandchildren and grandparents is generally a good thing and in the bestinterests of the child and should be encouraged. This approach recognizes that the parent’s power to decide whether the child will have arelationship with their grandparent(

s) is not absolute and unless there is a good reason to justify disallowing contact the court willintervene. [19] In Quebec,

Article 611 of the Civil Code goes so far as to enshrine into law the legal presumption that grandparent access is,unless there is a “grave reason” to the contrary, a positive influence in a child’s life. In fact, the

article states that if there is adisagreement between the parties and there is not a grave reason for access to be denied, then it is only the terms and conditions ofaccess that are to be determined by a court. However, such a presumption and entitlement to contact does not exist in any other province.

In British Columbia the onus clearly rests with the grandparent who is seeking contact. [20] It can be challenging for judges and lawyers alike, many of whom are grandparents, or whom had good relationships with theirown grandparents, not to hold generalized presumptions about the benefits of contact time with grandparents. However, to hold ontosuch a notion in a case like this would unfairly displace the burden onto Mr. C. [21] Outside of Quebec, the two leading cases in this area coincidentally have the same name. The first is Chapman v.

Chapman, (BCSC) from our British Columbia Superior Court and the second is Chapman v. Chapman,(ONCA) a decision of the Ontario Court of Appeal. [22] The Ontario Court of Appeal’s decision is the strongest statement of the parental autonomy approach.

In that case, the courtheld that in the absence of evidence that demonstrates a parent’s inability to act in the best interest of his or her children, a parent’s rightto make a decision on his or her children’s behalf with regard to contact with grandparents should be respected. [23] The British Columbia decision, on the other hand, can best be characterized as more of a hybrid approach. It holds: 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 to establishotherwise; c. The courts should be reluctant to interfere with a custodial parent’s decision in this sort of matter and should only do so where it is inthe 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. [24] Generally, grandparents are more reluctant than parents to bring applications for contact time. As a result, it is usually the casethat when such applications reach the courtroom, there is a significant degree of conflict and hostility between the parent(

s) andgrandparent(s). [25] Since the British Columbia decision of Chapman v Chapman was decided, the Family Relations Act was replaced by the FamilyLaw Act. The Family Law Act places much emphasis on the best interests of the child. No mention is made with respect to providingany deference to the decision making power of the parent. However, in Fawcett v.

Read, 2015 BCSC 310, Madam Justice Russel agreesthat although the approach to these types of cases has changed somewhat under the new Act, the principles enunciated in Chapmangenerally remain valid and deference to the custodial parent’s views continues to be a consideration; albeit such views can never trumpthe best interests of the child. She writes at paragraphs 28-32: 28 Deference to the custodial parent’s views has also been recognized in case law: see Chapman v. Chapman, (BC SC), [1993] B.C.J. No. 316 (S.C.).

While Chapman does precede the passage of the FLA, it has been cited for several of theprinciples it enunciates, including giving deference to the custodial parent: N.F. v. H.L.S., [1998] B.C.J. No. 1739, aff’d 1999 BCCA398 . In T.F. v.

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

In the final analysis, she ultimately still considersdeference to custodial parents to be valid because at para. 25, she finds that the custodial parent is entitled to deference regarding contactpending trial. Therefore, I do not find that this statement means that giving deference to the custodial parent’s decision is no longerappropriate. 30 Deference to the custodial parent’s views is a relevant consideration, subject to any other evidence with respect to the bestinterests of the child.

The custodial parent’s views cannot trump the best interests test but may form one component of it. 31 Consequently, I find, that in making a decision for contact under s. 59 of the Family Law Act, I must consider the best interests ofA. in light of all applicable considerations. Further, given the codified deference owed to guardians under the Act when it comes to

parental responsibilities, and given the case law, I find that in this analysis I may consider the reasonable views of the respondent, solong as they are reflective of the best interests of A. 32 In T.F., at para. 47, the court ultimately found that the mother’s views had more to do with her own feelings than the needs of herson, and that the grandparents had demonstrated significant bonding with the child such that ongoing and regular contact was warranted.

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

Clearly, it must be the case that the child’sbest interests are not just the paramount, but the only, consideration. “Best Interests” Analysis [26] I will now consider the relevant factors set out in section 37(2) of the Family Law Act to assess the best interests of S in thecircumstances of this case. In doing so, I remind myself that the test, is not, what in theory is best for children generally, but what in thebest interest of S. I also remain mindful to the deference that must be afforded to Mr. C’s right to make decisions on behalf of his child. [27] Section 37(2)(

a) of the Family Law Act: the health and emotional well-being of the child. Prior to her mother’s death, Senjoyed a good relationship with her grandmother. They baked, did crafts and read together. With consistent overnights every secondweek, and time spent with S in between, Ms. D was part of S’s emotional universe from birth. [28] The time spent with her was more than just an occasional pleasant experience, it was frequent and significant. [29] Ms. D has taken a course on assisting children with the loss of a parent and has tried to encourage S’s father to do the same.

This demonstrates to me that she continues to see S’s health and emotional well-being as critically important. [30] In Chapman v. Chapman, (ONCA), Madam Justice Abella recognized that a strong grandparent relationshipcan enhance the well-being of a child when she writes at para. 19: A relationship with a grandparent can – and ideally should – enhance the emotional well-being of a child. Loving and nurturingrelationships with members of the extended family can be important for children.

When those positive relationships are imperilledarbitrarily, as can happen, for example, in the reorganization of a family following the separation of the parents, the court may interveneto protect the continuation of the benefit of the relationship. [31] Conflict between a parent and grandparent can have a negative impact on a child’s emotional well-being. Fortunately, I wouldnot describe the conflict between Mr. C and Ms.

D as rising to the level where I need to be concerned that it will somehow undermineand endanger S’s stability, or risk disturbing her emotionally. [32] I am confident that going forward both can manage their differences and shield S from any negative impact. [33] Section 37(2)(b): views of the child. S is 3 years old and her views have not been canvassed. However, the evidence clearlydemonstrates that she enjoyed spending time with her maternal grandmother and extended family.

There is no reason to conclude thather feelings have changed since her last visit in June. [34] Section 37(2)(c): the nature and strength of the relationships between the child and significant persons in her life is anotherimportant factor. S enjoyed a strong and positive relationship with her grandmother, great-grandmother, step-grandfather, grandfather,uncle and cousins. [35] The benefits flowing from continuing these relationships include opportunities to develop additional networks of love andaffection, comfort and support. [36] As S gets older, Ms.

D can provide her a sense of family history, roots and identity. This will undoubtedly reinforce her ties toanother part of her family unit who share common interests and traditions. [37] Ms. D also offers unconditional acceptance, insight into the aging process, helpful advice and wisdom, and sometimes help inunderstanding parents. [38] S’s relationship with her new family unit is also important. I suspect that part of the reasons Mr. C’s decision to terminatecontact was the reflection of some anxiety that somehow Ms. D would try and derail his efforts to make S part of his new family unit.

Indeed, the introduction of a new partner can often place a great deal of strain between the family of the deceased and the survivingparent. [39] Although there is no suggestion that Ms. D attempted in any way to sabotage S’s relationship with Mr. C’s new family, goingforward she will need to demonstrate a high degree of sensitivity to the importance of S establishing a new family unit which will bringfurther stability and be a significant benefit to her. [40]

Section 37(d): history of S’s care since June 2016 is largely dependent on her father; however, prior to her mother’s passing, hergrandmothers and great-grandmother provided care on a regular basis. Mr. C’s willingness to allow Ms. D to have as much contact timeas she did is indicative of his faith in her ability to care for S. [41] Unlike other cases, there is no evidence suggesting that Ms. D tried to interfere or will interfere in the future with Mr. C’sparenting decisions. [42]

Section 37(e): given her age and the loss of her mother, assessing S’s needs for stability is important.

[43] Ms. D is quite capable of supplementing stability in S’s life. She did an excellent job raising her own daughter and stepped upto assist Mr. C when S’s mom became ill. [44] Ms. D can help S’s dad in offering emotional support when she becomes older and better understands what happened to hermother. [45] Section 37(2)(f): there is no dispute that Ms. D exercised her responsibilities well when she cared for S. [46] An important responsibility going forward is to minimize any conflict between her and Mr. C. Increasing the level of conflictwould clearly not serve S’s best interest. [47] Ms.

D chose to file her application only weeks after her daughter passed. She said she had been given advice to do so by aworker for the Ministry of Children and Families; it was poor advice. The filing had the potential of alienating Mr. C further andsevering any relationship that she may have had with him and consequently S. [48] Contact is to promote the best interests of the child. Unfortunately, sometimes adults forget this and children become the meansthrough which adults seek what they consider their “rights”. [49] I am confident that Ms.

D now recognizes and appreciates how fragile relationships can be and the need to minimize and shieldS from conflicts going forward. [50] I am also confident that she will not initiate discussions with S about her mother’s death without permission from her father. Conclusion [51] In a recent decision, Judge Kurz of the Ontario Court of Justice had to resolve an issue of contact time for the maternal familymembers of a 4 year old child who recently lost his mother to cancer. The respondent, father, for the most part opposed court orderedcontact for the deceased mother’s family.

Judge Kurz begins his decision with trenchant comments regarding the impact of tragedy on afamily unit: Tragedy can be as corrosive as the sturdiest acid, eating away at the bonds that hold families together. For the parties to this motion, theillness and death of a young mother whom they all loved led only to further dissention, conflict and ultimately this court proceeding. Torabi v Patterson, 2016 ONCJ 210 , 2016 CarswellOnt 5814 (CJ) [52] In the midst of tragedy, people often lose their way, and say and do things they otherwise would not. That happened here.

Tohold people responsible forever for their actions at a time when they were emotionally vulnerable is rarely the right thing to do. Although these events affected Ms. D’s relationship with Mr. C, there is no reason that it has to affect or damage S’s relationship withher. [53] While I applaud Ms.

D’s persistence in remaining a part of her granddaughter’s life, her pursuit of a resolution in the courts sosoon after the passing of her daughter was not ideal. [54] I am confident that the parties can, and will, set aside any conflict that has arisen and put S’s interests first. [55] Resuming and continuing contact with her grandmother will serve S’s best interest. [56] However, Ms. D must accept that she is grandparent and not parent. A grandparent is ordinarily entitled to contact at the timeand for the duration and under the conditions the parent agrees too.

Despite everything her grandmother has to offer, there are soundreasons why it is not in S best interests to resume the same level of contact she had when S’s mother and Mr. C were together and livedin Oliver. S now lives in Greenwood, and is in the process of bonding with her new family unit. She is beginning to participate inextracurricular activities and will soon be attending school. [57] In Parmar v.

Parmar, [1997] BCJ No 2095, Master Nitikman states the obvious when he says at para. 19: When the court finds it appropriate to grant specified access (to a grandparent), the amount of access allowed is quite limited. Fivehours one weekend, each month, and every sixth Saturday from 9:00 a.m. to 7:00 p.m., for example. [58] The terms of the order are as follows: 1. Ms. D will have contact with S for four hours one day each month at dates and times agreed upon by the parties. 2. Ms. D will have skype, facetime or telephone contact with S every second Sunday at 6:30 p.m. for a maximum of 15 minutes.

This form of contact will commence on the first Sunday following the first in-person contact she has with S. 3. The parties are at liberty to increase the frequency or the duration of the contact, provided they both agree. 4. Mr. C will advise Ms. D about special activities that S is involved in which Ms. D will be permitted to attend and have contactwith S. 5. Ms. D can send S gifts, cards and letters. 6. Judge Koturbash will be seized with any future applications in this matter. 7. This matter will be reviewed in 12 months.

The Honourable Judge G.W. Koturbash Provincial Court of British Columbia