S.E.S. v. R.E.C. Date:, 2015 BCPC 198

Citation: S.E.S. v. R.E.C. Date: 20150702 2015 BCPC 0198 File No: F55393 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.E.S. aka S.E.J. APPLICANT AND: R.E.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING

Counsel for the Applicant: J. Recalma Counsel for the Respondent: M. Cushner Place of Hearing: Nanaimo , B.C. Dates of Hearing: March 13, June 3, June 4, 2015 Date of Judgment: July 2, 2015 [ 1 ] This is an application by REC (RC) (age 37) for parenting time with the children, (FS) (age 13), (NS) (age 12), (KS) (age 10), (FC-S) (age 9) and (AS) (age 7). RC lived with SES aka SEJ (SJ) (age 32), the mother of the children, between August of 2002 and February of 2008. Subsequent to the separation RC had very limited contact with the children for less than a year.

Since 2009 he had no contact with the children until 2014. [ 2 ] During this time RC commenced a relationship with TJ (age 28) in May of 2008. They live on the Songhees Nation in Victoria with TJ’s daughter who is 9 and their own daughter born in January of 2015. [ 3 ] SJ has been in a relationship with EJ (age 27) since 2008 and they were married in 2011. They have two children, a daughter 5 and a son age 5 months. [ 4 ] RC and SJ were never married. RC is not the father of FS but is the biological father of the four girls.

AS had not been born at the time of the separation and FS was just over 2 years of age. [ 5 ] It is the position of SJ that the children do not consider RC as their “father” in any normal sense of that word and that they consider EJ as their father. [ 6 ] For this reason she is opposed to RC having parenting time with any of the children. She is prepared to consider RC having limited contact time with the older girls. Both parties agree that FS has now reached an age where it would substantially be his decision whether he had contact with RC or not.

The biological father of FS is not involved in his life and EJ has been his father figure for the past 7 years and they have a good relationship. [ 7 ] All of the parties and the witnesses are of First Nations descent with an assortment of band affiliations. The children are all registered with the Cowichan Band through SJ. LEGAL BACKGROUND [ 8 ] In September of 2009 a maintenance order was made in RC’s absence for $698 per month for 3 of the girls. As of June 2014 he was over $40,000 in arrears of this order.

In his material he indicates he has not worked since July of 2009 and has been on Songhees Social Assistance since 2010. [ 9 ] This was a maintenance-only order and was silent as to what then would have been custody and guardianship issues. [ 10 ] It appears that no enforcement took place on the order until 2013. RC has not filed tax returns since 2009 but is said to be in the process of doing so. [ 11 ] In April of 2013 R.C. started these proceedings. SJ believes this coincides with renewed FMEP enforcement proceedings.

In his evidence RC confirms this connection from a timing perspective but not as the motivation for his wanting to see his children.

In any event a mediation process followed which resulted in a “Working Agreement” dated November 13, 2013, which contained a re- introduction plan with respect to RC and the children. [ 12 ] In December of 2013 RC filed a financial statement which was of limited use due to his not having filed any tax returns. [ 13 ] In February of 2014 it is said that RC was dissatisfied with the lack of progress with the re-introduction process such that with the assistance of his present counsel he brought an application for an interim order for parenting and contact time with the children. [ 14 ] This application was heard on February 6, 2014, with RC represented by Mr.

Cushner and SJ unrepresented. As a contested application duty counsel were unable to appear for her. [ 15 ] It was ordered by the presiding judge that RC would have telephone time with the children every Thursday for 30 minutes and a visit with all 5 children every second Sunday for 4 hours for the oldest four and for 1 hour with the youngest, AS. [ 16 ] RC was also permitted by the order to “attend the children’s activities or events but is not to interfere with the children’s participation in such activities or events”. [ 17 ] Subsequently SJ was able to retain her present counsel, Ms.

Recalma, and on August 21, 2014, a

section 211 report was ordered. This was prepared by Lisa Bury, Family Justice Counsellor, after interviewing all four of the girls independently at the Nanaimo Justice Access Centre on September 18, 2014. FS was not interviewed. SJ was interviewed by telephone and RC was not interviewed because his number as recorded in the court file responded as being a wrong number. [ 18 ] Both RC and FS were interviewed by Ms. Bury for a follow-up report ordered on October 2, 2014. SJ was interviewed again but not the girls. This update was submitted on February 17, 2015.

SUMMARY OF THE s.211 REPORTS [ 19 ] Ms. Bury describes NS (11 at the time) as a quiet and calm child who enjoys school. She is said to take on a “nurturing role” with her younger siblings and to have a good relationship with her older brother FS. [ 20 ] NS “describes a close relationship with her mom” and is quoted as saying “I am happiest when I am with my mom.” (p.3). [ 21 ] She considers EJ her father and said “I like him as my dad.” [ 22 ] Ms.

Bury described NS bringing a letter she had written to the interview which stated amongst other things: “I don’t like the visits because he asks questions on visits, he is ruining our family summer. I wish it wasn’t every 2 nd Sunday. I feel sad because he is forcing us to go on the visits.” [ 23 ] NS spoke to Ms. Bury of having visits with RC “when we feel like it.” She said she was “not enjoying the visits” and “would like a break.” [ 24 ] KS (10 at the time) was said to be shy and described her family to be SJ and EJ who she referred to as “mom” and “dad”.

KS was excited about the new baby the family was expecting. KS had similar views as NS about the Sunday visits and also disliked the telephone calls. She told Ms. Bury that she wanted to see RC less often. [ 25 ] FC-S (8 at the time) presented as “a very quiet child” who liked to spend time with her grandma. This is most likely a reference to EJ’s mother who they were living with in Nanaimo at the time or possibly SJ’s mother who lives in Duncan. Her basic message to Ms.

Bury was that she did not “like the visits or the phone calls.” [ 26 ] AS was 6 when interviewed and also stated she did not like the visits telling Ms. Bury that she did not feel RC “is her dad”. AS also said that she does not enjoy the telephone calls adding that “the only person I like to talk to on the phone is my grandma in Duncan.” This would be SJ’s mother. [ 27 ] In the update to the first report RC told Ms. Bury that he had “concerns that his parenting time” was not being supported by SJ “and her family”. He told Ms.

Bury that he hoped “to have an active role in the children’s lives.” [ 28 ] FS (13) is said to have “participated keenly” in the interview and did not refer to RC as part of his family. FS told Ms. Bury that he “is happiest when at home” with emphasis on home. [ 29 ] FS told Ms. Bury that he feels the conflict around RC’s visits is “stressful for everyone” and from his perspective he sees RC and SJ as having “separated a long time ago.” He expressed a number of concerns about the Sunday visits and a lack of interest in talking to RC on the telephone. [ 30 ] Ms.

Bury noted that FS was aware of the visits causing stress in the family which was also stressful for FS and that his one expressed wish was “to get all this court over with already”. [ 31 ] The Court notes that some of the concerns the children have with the visits (baloney sandwiches for example) are likely beyond the financial control of RC who has limited means so far as is known. Other concerns (such as not being returned) present as having trickled down so to speak from the adults in the household and have no real or historical basis.

SUMMARY OF THE EVIDENCE: [ 32 ] As part of the applicant’s case the Court heard from RC, his present partner TJ, his older sister SC (46) and his mother BE. [ 33 ] RC’s father is from the Ahousaht Band and his mother from the Cowichan Band but they live in Brentwood Bay near Victoria. SC also lives in Victoria. TJ’s family is from the Pachena Band near Port Renfrew. [ 34 ] RC started his first job since 2009 in April of 2015 as a dishwasher at a restaurant and lounge.

He earns $11 p/hour and works evenings Tuesday to Saturday. [ 35 ] RC says that he and TJ and their two children have a rent-subsidized two bedroom apartment on the Songhees reserve but would qualify for a 3 bedroom apartment if he had sufficient overnight visits with his children. [ 36 ] As a separate part of these proceedings SJ has agreed to the cancellation of all arrears owing by RC for child support and RC has consented to an interim order to pay child support of $500 per month commencing September 1, 2015. [ 37 ] RC and his witnesses report that, contrary to what the children have been reported to say to Ms.

Bury in the s.211 reports, they understand that the children enjoy the visits and wish to have more extensive time with him and his family. [ 38 ] RC states that he would like to have the children in Victoria every second weekend and for half of all school breaks. [ 39 ] RC acknowledges virtually no contact with the children, particularly AS, since the February 2008 separation. The evidence indicates that what contact did take place was primarily initiated by SJ.

For a period of time RC’s sister SC had more contact with the children it appears than did he. [ 40 ] RC cites difficulty contacting and or locating SJ and lack of co-operation from her family as some of the reasons for his lack of contact. [ 41 ] He says that because he, for the most part did not work during his time with SJ, that he was extensively involved with the children and that they were very close to him. He agreed that during the first year of AS’s life he only saw her a couple of times for a

“couple of hours” and not at all after that until 2014. [ 42 ] When he and SJ separated they were living at the home of SJ’s mother in Duncan where SJ’s mother has continued to live up to the present. He was asked and/or told to leave and did so without incident. [ 43 ] RC has no criminal record and it does not present that any substance abuse or domestic violence issues are relevant to this case.

RC has lived mostly in Duncan and Victoria. [ 44 ] Due to his financial situation and a hold on his driver’s licence from FMEP, RC had logistical problems with the Sunday visits but has kept them up with help from his family. He reports there was some “strangeness” on the initial 3-4 visits and that the telephone visits have declined to only 2 minutes duration.

He believes pressure on the children from SJ and EJ are behind this decline. [ 45 ] RC says he heard “reports” over the years that SJ was having issues that attracted involvement from MCFD but did not make any follow-up inquiry about these reports with the Ministry directly. [ 46 ] RC says that AS was “uncomfortable” at first with the one-hour visits but is “okay because her sisters are present” and has missed a lot of the visits (about 14 of 20 at one point). [ 47 ] RC said FS did not start coming on the visits until September of 2014 and sometimes has come in place of AS.

RC will bring extended family and the children from his Victoria family on many of the visits. [ 48 ] He acknowledges that he will ask FS questions about “how things are at home” but does not intend to pry. He says that he tells the children that he is just “trying to fight” to have longer visits.

He says he would like to have longer visits “because I enjoy my visits.” He says the children tell him they would like to have longer visits and to stay overnight in Victoria. [ 49 ] RC believes the s.211 reports are out-dated and would like to try Skype or Facetime with the children as an alternative to the telephone contact. [ 50 ] RC and his witnesses speak of correcting the children when they call RC by name and not as “Dad”. RC acknowledges that he has failed to comply at times with SJ’s wishes that the children not be given pop, slurpees or similar sweets during the visits.

He does not present as particularly respectful of SJ’s wishes in this regard. It is to be noted that the sugar restriction that SJ maintains for the children is a general one and not just directed to the Sunday visits. In SJ’s home the children are only allowed juice, milk or water. [ 51 ] RC’s older sister SC has four children still at home in Victoria ages 17 - 7. She felt that her children and RC’s children “had forgotten each other” but picked up again after a few visits.

She says that the children ask to come and stay at her house and that if RC had overnight time with the children her home would be available to assist. [ 52 ] While RC and SJ were together SC often saw the children and referred to her as “Auntie S”. SC saw little of the children after the February 2008 separation but actually saw them slightly more than RC. [ 53 ] RC’s mother, BE, says the children visited RC at her home for “a few short months” after the separation. BE feels that after that time SJ “went out of her way” to avoid them citing an incident at the Wal-Mart in Duncan as an example.

She has been with RC on the Sunday visits and says the children were friendly with her from the outset. She talks with the children about school, soccer and music. [ 54 ] BE expresses a concern that the girls are playing a mother role in the home less than that of a child or sister. She says she would like to see them “just being kids”. She feels there is a relationship between FS and RC but agrees that most of the time he calls him “R”. She is disappointed with how little they see of AS.

RESPONDENT’S EVIDENCE [ 55 ] In addition to SJ the Court heard evidence from her mother KD, her husband EJ and EJ’s mother DJ. [ 56 ] SJ confirmed the time-line with respect to the children and RC and described how she and EJ have been together for 7 years and married since 2011. [ 57 ] She says that he loves all of the children and that they love him. She described the activities they like to do as a family much of which involves outdoor activities including trail walks, soccer and canoeing. She says the children all refer to EJ as “Dad”.

She provided details as to the children’s schooling and their doctor and dentist. [ 58 ] She and EJ just recently moved into a 6-bedroom townhouse with a Housing Society in Nanaimo where all but 2 of the children have their own room.

Neither she nor EJ are working at the present time though EJ is on standby to be a deckhand. [ 59 ] SJ describes the visits as disruptive for their family and says she was overwhelmed at the time of the hearing in 2014 when the order for visits was made. [ 60 ] She says the visits interfere with some of the children’s activities and with the time they have available to visit her family in the Duncan area and EJ’s family in Nanaimo. [ 61 ] SJ says the children generally do not want to go on the visits and are sometimes “down” after them because while they look forward to seeing RC there is a group of people along with him.

She says they do not mind the others but would prefer just to see him. [ 62 ] She says that no one has coached the kids about what is in the s.211 reports and that the children tell her that they do not want overnight visits. She says that AS cries before the visits and just says she does not want to go. She believes that FS goes just so that she, SJ, will not get in trouble for disobeying the order of the Court.

[ 63 ] She said that RC did not sign AS’s birth certificate when asked because he did not believe she was his. [ 64 ] SJ presented as a person who would be a strong advocate for her children within her own community but not comfortable in a courtroom setting and hesitant to express herself in a confrontational context. [ 65 ] She did not think that it was a good idea for the children to go with RC for an extended period of time. When asked how she felt about overnight weekend visits she replied “okay I guess”. Her basic position was in line with the

summary of Ms. Bury as to the wish of the children that “the visits be more flexible or less frequent”. [ 66 ] KD, the mother of SJ, has worked for 26 years as a Community Health Representative. She has known the children for all of their lives and has been with them before and after their visits with RC. [ 67 ] She was distressed that the visits with RC “just came out of the blue” and believed that it “turned their worlds upside down”.

She described the children as being quiet and as keeping to themselves after the first visit. [ 68 ] She found that it was necessary for her to reassure the children that the visits would be alright initially. She says that now the children do not say “too much, just say it is ok”. [ 69 ] She also felt that it affected the children with their school work and she confirmed that the children have told her that their feelings about the visits are as they told Ms.

Bury. [ 70 ] While she lived at the same address and had the same phone number during all of the time that RC had no contact with the children she does not recall that he ever contacted her about the children or otherwise. [ 71 ] KD describes the children as loving EJ who they refer to as “Dad”. She says that he is the only father they have known for the past 6 to 7 years. RC and SJ were living with the children in her basement when they separated.

KD has always had an active role in the lives of her grandchildren who she describes as “loving and respectful”. [ 72 ] EJ says that in the 7 years that he and SJ have been together that he has developed a good relationship with the children and that they enjoy activities such as fishing and sports together. [ 73 ] He says the children have days when they do not want to go and others when they are prepared to go but are not particularly happy about it. [ 74 ] He said that early in his relationship with SJ he encouraged her to let RC see the children but after 3-4 visits where they stayed mostly at RC’s mother and another where RC did not show up the visits stopped. [ 75 ] In his evidence RC said that he missed a visit because of a death in TJ’s family and this may correspond with EJ’s recollection from that time. [ 76 ] EJ believes that the s.211 reports represent the true feelings of the children who have never told him they want to spend more time with RC or have overnight visits with him.

He believes that visits with RC should depend on whether the children want to go or not. [ 77 ] EJ worked at the Coastland Mill in Nanaimo until 2012 and also does day-care work on a casual basis at the Nanaimo Band office. EJ is a member of the Snuneymux (Nanaimo) Band and participates with the children in Band social and cultural activities. [ 78 ] EJ’s mother, DJ, does seasonal work picking blueberries and also cleans houses.

She has known the children, who call her “Grandma” for 7 years. [ 79 ] EJ and SJ were living with her when the visits started and she described the children on coming back from the visits as being upset and needing “extra hugs”. [ 80 ] She says that as to the visits the children ask “do we have to go?” She describes all the children as being “anxious and nervous” around the visits but NS is the one she worries about most. [ 81 ] She said that she tried to speak to RC once on behalf of the children to explain that they did not want to go. She said that he responded “they have to, it is Court ordered”.

She suggested that the feelings of the children should come first and was sworn at by him. This was in the summer of 2014. [ 82 ] DJ describes various adverse reactions that she sees in the children before and after the visits and feels that NS is being “traumatized” by the process. She also says that the children complain to her about being asked questions about “their mom and dad” during the visits. LEGAL CONSIDERATIONS [ 83 ] The law which applies to this situation is codified in the Family Law Act of B.C. and in particular s.37 which provides as follows: 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 thechild or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability tocare 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 familymembers; (

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'sphysical, 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 insubsection (2), and only to the extent that it affects that factor. [84] Also on application to this case are the provisions of sections 29, 40 and 59 of the Act. [85] Apart from statute law there is case law of additional relevance including Young v Young (1993) (SCC), SCJ112 and to a lesser degree SRC v. GMW

(2001) BCJ 508; Thompson v Dorn (2000) 2000 BCSC 265 , BCJ 315 and Montgomery v. Montgomery (Ont. C.A.) (ON CA), 97 DLR (4th) 437. To the extent that the reasoning in the Young decision isreflective of the provisions of the Divorce Act of Canada, the provincial legislation would in this case present as paramount. [86] In their submissions counsel did not refer the Court to any statute or case law. Counsel for the applicant appeared to assumethat because RC is the “biological father” of the children and he had a year of “parenting” time with them that further time with thechildren is just a question of how much.

The reports that the children do not want to have more contact are put down to the fact that“children will say whatever their parents want them to say” or words to such effect. This apparently does not apply to what they aresupposed to have said to RC and his witnesses. [87] It is to be noted that a “year” of parenting time in this case amounts to slightly more than 100 hours or 5 days actually in thepresence of the children and substantially less in the case of AS.

It is also noted that all of the children other than AS travel by bus fromNanaimo to Ladysmith to attend an Elementary School there which has special emphasis on First Nations programs. This reduces thetime they would have with their family during the week and makes any time taken from their family on weekends even more significant. [88] There is in fact very little case law with respect to such a situation as this as it is uncommon. I consider however that someguidance can be drawn from the following cases: Young v. Young

(1989) BCJ 2347 BCPC, Collings BCPC I must repeat here, as so often, that my prime consideration under Section 24(1) of the Family Relations Act has to be Becky's bestinterests. Parental rights, degrees of relationship, and religion are secondary. I cite K.K. v. G.L. (1985), (SCC), 44 R.F.L.(2d) 113 (S.C.C.), which in terms struck down the earlier presumption that the natural parents had the first claim to custody of theirchild.

I quote from McIntyre, J. at p. 126: "It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the course whichwill best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of lifeas a mature adult. Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching a conclusion.Where it is clear that the welfare of the child requires it, however, they must be set aside." Between Nicole Ann Thompson, petitioner, and Gilbert Kelly Dorn, respondent

2000 BCSC 265 British Columbia Supreme Court Port Alberni, British Columbia Master Horn Heard: January 27, 2000. Judgment: February 7, 2000. 29 I turn to the issue of access. On May 1, 1999 Nicole Thompson moved to Victoria with Karissa in order, she says, to start a newlife. She says that Gilbert Dorn has made no attempt to visit Karissa during the time that she has lived in Victoria. Although she has beenlisted in the telephone directory, (and Gilbert Dorn also works in the same company as her father does) he has never made any effort tocontact her. 30 Mr.

Dorn confesses that he has had very little to do with Karissa since separation and that since May 1998 he has not seen herexcept for a half hour visit in the Summer of 1998 and a one hour visit shortly after Christmas of 1998. He has not sent Karissa a birthdayor Christmas present since Christmas 1998. He did not inquire after Karissa though he met the plaintiff many times when she wasworking in a bar in Port Alberni.

He did not thank the plaintiff for delivering to him a photograph album of Karissa's pictures. 31 Nicole Thompson speaks of assaults, anger and drug and alcohol abuse while they were living together. Whether this is true or notit is apparent that these parties had a relationship which was both brief and stormy. Nicole Thompson has every reason to believe thatGilbert Dorn has no real interest in accessing his daughter and that any access will be unsatisfactory for Karissa, and distressing toNicole. 32 Mr. Dorn acknowledges his faults and says that he will do better.

He says that he is now willing to take up his responsibilities and,if necessary, to take a parenting course and to be supervised for the first few visits. 33 Gilbert Dorn has recently established himself in a new relationship and his new partner speaks highly of his relationship with twochildren whom she cares for on behalf of a friend. 34 Karissa is, according to the family doctor, a child with some behavior and sleep difficulties but she is generally a healthy child ofnormal intelligence and her difficulties, he feels, are related to the social disruptions that she has experienced.

He found Nicole to be acaring and attentive parent and her partner Derick Oxtoby to be a source of stability within the family. 35 Karissa is three and a quarter years old. The only time during her life when she has lived with her father was for the first fivemonths. Since then she has seen little of him.

She and her mother are now established in a new relationship which by all accounts,appears to a happy and supportive one. 36 Considering the difficulties of establishing regular access between Victoria and Port Alberni I conclude that any contact that he willhave with her until she is old enough to spend holidays or weekends away from home, which will be several years from now, will besporadic and unrewarding for the child.

Access now would be token and token access is not in the best interests of the child especially if,as appears to be the case, she now regards her mother's companion as being the father figure in her life. It is in her best interest that shenot have Mr. Dorn intrude upon her life at this time. 37 Mr. Dorn has not lived up to his responsibilities and I have no reason to suppose that he will do so in the future. 38 The best thing that could happen to this child is that there be an adoption into a happy and stable home. I am not in a position toknow whether that will happen but I am told that it is contemplated.

If Mr. Dorn wishes to do the best by his child he will considerwhether he should consent to an adoption. If the child were adopted with his consent, it might be appropriate to apply to cancel allarrears of spousal maintenance. He would then be in a better position to support what is apparently a new family. 39 In the hope that some such satisfactory solution will be reached, I will suspend the enforcement of payment of arrears of spousalmaintenance for six months, after which they will become payable at $500 per month. Montgomery v. Montgomery (Ont. C.A.) (ON CA), 97 DLR (4th) 437. Abella, J.

The meaning of “best interests” is a fluid as each child’s circumstances, what is certain, however, is that the focus of the exercise is onthe child. In introducing a non-exhaustive list of considerations for the court’s assistance in deciding what would be best for a child,section 24(2) of the Children’s Law Reform Act states: 24.

(2) In determining the best interest of a child for the purposes of an application under this

Part in respect of custody of or access to achild, a court shall consider all the needs and circumstances of the child …. (Emphasis added) This by no means excludes the parental perspective. The needs of children and their parents are obviously inextricable, particularlybetween children and the parent on whom they depend for their day to day care, where only one parent has this primary responsibility.

The structure of an environment that fits the child’s interests would undoubtedly be reinforced if the economic and emotional needs,especially of custodial parents, were factored in, given the symbiosis of their sense of well-being. But the central figure in the assessment is the dependent child. And that is why, despite the fact that s. 24(2)(

g) refers to “the

relationship by blood or through an adoption order between the child and each person who is a party to the application”, the existence of such a relationship guarantees no rights to custody or access. The rights in custody and access are those of the child: see Bernard M. Dickens, “The Modern Function and Limits of Parental Rights” is in their best interests.” (1981), 97 L.Q. Rev. 462. Ideally this will mean an ongoing and positive relationship with both parents.

But while the father submits that as the father he is automatically entitled not to be prevented from seeing his child, it is clear, as Wilson, J. said in Racine v. Woods, [1983] S.C.R. 173 at 174, that…”the law no longer treats children as the property of those who gave them birth but focuses on what is in their best interests.” [ 89 ] I have also found the reasons of the Honourable Judge Skilnick in the case of CT v JT (paragraphs 27-41) to be of assistance in reaching my decision in this matter albeit that case involved an application by a grand-parent and not a father.

ANALYSIS : [ 90 ] The chronological facts in this case are not in dispute. There is a dispute as to what the true wishes of the children are with respect to visits with RC and regardless of what those wishes are determined to be what course of action is in the best interest of the children. [ 91 ] All of the witnesses in this matter presented as fundamentally decent people. Generally RC and his witnesses were more outspoken and communicative than SJ and the witnesses called on her behalf.

I consider however that RC is more of a talker than a doer so to speak and that SJ and EJ have spoken more by their actions than by their words. [ 92 ] The evidence shows that since before AS was born and from the time FC-S was 2, KS was 3 and NS was 5, that RC absented himself from their lives for over 6 years. [ 93 ] In his evidence RC makes various attempts to place some or all of the fault for this estrangement from the children upon SJ and her family. [ 94 ] I consider that there is little or no merit to this rationalization that he has developed and that this span of some 6 years without any meaningful contact with the children is primarily his responsibility. [ 95 ] RC was living in the Victoria area during this period and would have had access to resources there to assist him in regaining contact had he sincerely wished to do so.

While SJ moved about to a certain extent she was never in hiding from him and could have at all times been served substitutionally via her mother whose address never changed. [ 96 ] The issue of “fault” for the 6 year gap is very secondary to the fact of the gap itself and in particular to the fact that during the 6 years RC was away from the children whatever void he had left in their lives was completely and more functionally filled by the relationship the children maintained with SJ and established with EJ. [ 97 ] The evidence and RC’s presentation on the witness stand demonstrates a basically nice but somewhat superficial person who tends to view the children as his property by virtue of parentage. [ 98 ] He has little regard for the wishes of the children’s mother as to her established rules for the children and tends to view his contact with the children in terms of what personal satisfaction he derives from it above how it may impact the children or the household that nurtures them. [ 99 ] RC has disregarded the wishes of the children as expressed in the first s. 211 report and has confirmed by FS in the up-dated report. [ 100 ] While he maintains that the children have told him differently from their reported feelings I lack confidence in his evidence in this regard.

If the children did tell him so, I have grave doubt that it took place in a controlled and unpressured atmosphere such as Ms. Bury would have fostered. [ 101 ] The evidence of RC and some of his witnesses as to making the children call him “Dad” is indicative of a lack of sensitivity to the true feelings of the children. FINDINGS 1. RC has never acted as a guardian with respect to AS within the meaning of s. 39 of the Family Law Act ; 2. That as a step-father who had no meaningful contact with FS for 6 years he has abdicated any entitlement to guardianship; 3.

That as a father who stopped contact with his daughters when they were 2, 3, and 4 for 6 years his claim for guardianship and for parenting time is very tenuous; 4. That the views of the children as to contact with RC are best determined by regard to the evidence of those who are closest to them (SJ, EJ, KD, and DJ) and as corroborated by the two s. 211 reports prepared by Ms. Bury; 5. That SJ and EJ have a proven record of consistent, competent and loving care for the children over the past 7 years. 6.

That the most significant adult persons in the lives of the children are SJ and EJ followed by the respective mothers of SJ and EJ; 7. That RC is not a significant person in the lives of the children, in any positive sense of that word, at the present time;

8. That no one in RC’s family has been a significant person in the lives of the children for over 5 years; 9. That SJ and EJ are the best and most able individuals to provide for the health and emotional well-being of the children; 10. That SJ has cared for the children all of their lives and EJ has cared for the children longer and more recently than has RC; 11. That neither SJ nor EJ have ever absented themselves from the lives of the children; 12. That the children (FC-S, KS and NS) have a strong bond with SJ and EJ, with each other, and with their half-siblings FS and ES jr. and ES; 13.

That the children no longer have any bond with either RC or any member of his family; 14. That SJ and EJ and their extended family are the best platform to provide stability in the lives of the children; 15. That SJ and EJ are best placed to protect the “physical, psychological and emotional safety, security or well-being” of the children; 16. That it is in the best interests of the children to respect their wishes and to respect the ability of their primary caregivers to make appropriate decisions on their behalf and to act in the best interests of the children; 17.

That the primary caregivers for a child “need not show harm in order to restrict access; the best interests of a child is not simply the right to be free from demonstrable harm; it is the positive right to the best possible arrangements in the circumstances of the parties;” 18.

That the best interests of the child test “is a positive test which includes the desirability of maximizing contact between the child and each parent if such contact is compatible with the best interests of the child ;” (emphasis added) [ 102 ] The terms “… emotional safety, security or well-being” mentioned in (15) above and as taken from s. 37 (2)(

g) of the Family Law Act are not defined in the FLA but should be well understood. [ 103 ] By comparison s.13 (2) of the CFCSA states that “a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour.” The “severe” test is not relevant to this case but both KD and DJ (the mother’s of SJ and EJ respectively) described similar behaviour to a significant degree surrounding the visits particularly to (a), (

b) and (c). I consider both of these ladies to be credible and perceptive witnesses who know the children well and have their best interests to the forefront. [ 104 ] There is a concern with the witnesses for RC that their priority is to support his position, that they are not attuned to the children and are proceeding on the assumption that given enough time with the children they could bring them back into their family. It is understandable that they would wish and hope for this but the present reality is much different.

Lack of insight and perspective is of little regard if one say is putting out a small amount of money for a lottery ticket but is a serious shortcoming in the context of trying a social experiment with the lives of young children. [ 105 ] Were it the case that SJ was struggling on her own to raise the children or that she was involved in a dysfunctional relationship where there would be benefit to the children from having an appropriate father figure in their lives and a secondary family available to them I would consider RC’s application to have more merit. [ 106 ] I feel SJ and EJ present as having a very stable relationship and the children a very long-standing and positive bond with EJ.

They have ample back-up family resources through both of their families. SJ and EJ present as being more involved in First Nations cultural activities than RC. [ 107 ] RC’s involvement with the children presents to this point as more of a negative in their lives than as a positive. His visits certainly have a very negative impact on SJ and EJ as their regular family activities and routines are disrupted and made secondary to his visits and telephone calls.

The Court would assume that it is difficult enough to raise 7 children without a family car and with limited means without having to deal with explaining to your children why they are being sent off to spend time with people who are virtually strangers to them and who they either do not really want to see or want to see less. [ 108 ] It is possible that if RC had made more of an effort to utilize the gradual reintroduction plan that the mediated agreement dated November 13, 2013 contemplated that the children would be more receptive to contact with him.

Instead SJ was put through a 90 minute contested hearing without the assistance of counsel and presumably arrived home after that experience in a distraught state. The Court records show that very shortly after that she was served with enforcement proceedings with a request that she be fined.

This was somewhat hostile behaviour on the part of RC and presents as unfeeling as to how it might impact the children and their home. [ 109 ] This might have contributed to the fact that the children do not have positive associations with him and it is unlikely that any amount of treats or of taking them to Fast and Furious 7 or Pitch Perfect 2 (as given in evidence) will change those feelings. [ 110 ] At the end of the trial I pointed out to counsel that apart from the order of September 3, 2009, which dealt only with child support, the parties had no order or written agreement as to what was formerly custody and guardianship and is now guardianship and parenting time.

The interim order of February 6, 2014, granted “parenting time and contact” to RC which I take as equivocal and as SJ was unrepresented not a decision on the merits. [ 111 ] As RC was not able to attend from Victoria for this last part of the hearing and his counsel did not have the opportunity to take instructions on this point I indicated that I would only make an interim order as to that aspect of the case as opposed to leaving the children in something of a legal limbo. [ 112 ] Accordingly, on an interim basis I order as follows:

1. SJ, also known as SES shall have sole guardianship of the following children pursuant to s.39 (2) of the Family Law Act : FS, born [omitted for publication] 2001; NS, born [omitted for publication] 2003; KS, born [omitted for publication] 2004 FC-S, born [omitted for publication] 2005. 2. SJ shall have sole guardianship of the child, AS, born [omitted for publication] 2008 pursuant to s.39(3) of the Family Law Act ; 3. As between SJ and RC, SJ will have all parental responsibilities for the said children pursuant to s.40 (1) and (3) of the Family Law Act ; 4. RC may have contact with the three children, NS, KS and FC-S, as follows:

a) In odd-numbered years commencing in 2015 on the second Sunday of April, August and December for a period of 5 hours from noon to 5:00 pm;

b) In even-numbered years commencing in 2016 on the second Sunday of March, July and December from noon to 5:00 pm; 5. During any contact time the children are not to be taken outside of the City of Nanaimo unless with the prior written permission of SJ; 6. SJ may reschedule any visit provided at least 14 days’ notice is provided to RC and a rescheduled visit is offered to take place within three weeks of the cancelled visit. 7. RC shall pick up and drop off the children within 50 metres of the residence of SJ and shall ensure that the children are at all times transported in a safe and lawful manner; 8.

If RC is for any reason unable to attend for a scheduled contact or finds it necessary to abridge the time of same he will provide at least 48 hours notice of this to SJ. CONCLUSION [ 113 ] In deciding what contact time that RC should have with the children, I am mindful of a number of matters some of which are similar to those articulated by Skilnick, J., in the CT v. JT decision mentioned earlier. [ 114 ] In that case the court was concerned with a “climate of hostility” between the applicant grandmother and the respondent mother.

The present case does not arise from a climate of hostility at least as of the time it was initiated. In 2013 RC and his family were essentially irrelevant to SJ and the children.

Subsequent events have been upsetting and frustrating for them but not to the extent of hostility. [ 115 ] I consider that in giving her evidence and in particular while being cross-examined SJ struggled with expressing her true feelings about the amount of contact that would be best for the children partly from not being comfortable with confrontation in such an unfamiliar context and partly to avoid showing disrespect for the previous order. I believe that her views are best assessed as given to Ms. Bury. [ 116 ] I have made no specific provision for telephone or Skype-type access.

I would recommend to SJ to permit this to happen if requested by the children and also to encourage it to take place prior to a scheduled visit so that RC and the children can do some planning for the visit and touch base. [ 117 ] One of the reasons that I consider some contact albeit limited is best for the children rather than none at all is the collective ages of NS, KS and FC-S and the fact that they have the comfort and security of each other’s presence. [ 118 ] I also consider that it is likely that for some of the visits RC may bring along other members of his family to preserve those connections which may be of possible benefit to the children.

RC should heed the information that the children prefer the visits not to be over-accompanied and look for some balance in that regard. [ 119 ] It is open to SJ, particularly as the children get older, get farther away from the turmoil of this past year and more accustomed to this new schedule, to have discussions with the children about expanding the visits should both she and the children feel comfortable with such a course of action. [ 120 ] It is understood that FS will be making his own choice about contact with RC and it is possible that on some occasions he might choose to see RC on his own or more likely to go along with the girls which would likely provide them with an additional level of security and comfort.

Because of the logistical difficulties that RC faces in terms of vehicles and appropriate car seats on visits it would be necessary for FS to and/or SJ to provide RC with ample notice of his wish to come along on any visit. [ 121 ] I reiterate, that as was said in the CT v.

JT case, this decision is not about the level of love and affection that RC has for his children or about his general abilities as a parent and whether he would benefit from seeing the children. [ 122 ] Rather, I am concerned with what is in the best interests of the children, what best sustains their everyday living situation and what shows appropriate deference to those who provide for their care and security on a daily basis.

BY THE COURT ________________________________ The Honourable Judge D. Cowling, PCJ ADDENDUM The interim order made herein on June 4, 2015, is hereby vacated.