Knoflook v. Lovelett Date:, 2011 BCPC 509

Citation: Knoflook v. Lovelett Date: 20110706 2011 BCPC 0509 File No: F7640 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: FRED KNOFLOOK APPLICANT AND: DEBRA LOVELETT RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: A. De Ciantis

Counsel for the Respondent: D. Batist Place of Hearing: North Vancouver, B.C. Dates of Hearing: May 9 and June 3, 2011 Date of Judgment: July 6, 2011 [1] Mr. Knoflook seeks to set aside a restraining order and have access to his granddaughter, Jaclyn Lovelett, born November 24,2002. [2] Jaclyn is the only child of Mr. Knoflook’s daughter Debra and her husband Rodney Lovelett. They oppose Mr. Knoflook’sapplication for essentially three reasons.

Firstly, they allege that he has in the past behaved inappropriately with his grandchildren.Secondly, they say that the level of family tension is such that it would place Jaclyn in a situation of conflict if she were to have anycontact with her grandfather. Thirdly, Mrs. Lovelett has multiple sclerosis, and she is concerned that the added stress of permitting Mr.Knoflook to see Jaclyn may worsen her health. [3] Mr. Knoflook denies any inappropriate conduct and asserts that he had a close relationship with Jaclyn before the restrainingorder was made. He believes Mrs.

Lovelett is motivated by financial concerns and not Jaclyn’s best interests. He says he poses no risk toJaclyn’s wellbeing, he is 75, and says it is time the restraining order is set aside. He would be content with even minimal contact, andoffers to have access occur in public places, supervised by his partner, Doris Richard. [4] The issue that needs to be resolved is whether providing Mr. Knoflook with some time with Jaclyn is in her best interests.

Thatrequires, firstly, a resolution of the cross allegations made by the parties, and secondly, an assessment of whether in light of the facts as Ifind them, Jaclyn would benefit from having contact with her grandfather. [5] In making the latter assessment I must bear in mind that the onus remains on Mr. Knoflook to show that it is in Jaclyn’s bestinterests to see him. The parents’ wishes must be given deference, and it is not in the best interests of a child to be placed into a situationof real conflict: Chapman v. Chapman, (BC SC), [1993] B.C.J. No. 316 (S.C.), para. 24. Court Background [6] Mrs.

Lovelett obtained an ex parte restraining order against Mr. Knoflook on May 19, 2009. In applying for the restrainingorder she made three allegations: 1) She was afraid for Jaclyn’s, Mr. Lovelett’s and her own safety because Mr. Knoflook had in the pastbeen abusive to Mrs. Lovelett’s sister, Kimberly Bethune, and come after her with a gun; 2) Mrs. Bethune told her Mr. Knoflook boastedto her about “spooning up to” Jaclyn; and 3) Mr. Knoflook had done inappropriate things to Mrs. Bethune’s daughters. [7] Mr.

Knoflook applied to set aside or vary the restraining order on June 15, 2009 but a hearing date set for August 2009 wasadjourned generally. He reapplied in March 2011 to set aside the restraining order and have access to Jaclyn. [8] Mrs. Lovelett filed a Reply and a Notice of Motion, in which she opposed access and sought that the restraining order bemaintained. She complained that Mr. Knoflook had violated the restraining order by sending Jaclyn a birthday present, by havingtelephone contact with Mr. Lovelett, by sending flowers and chocolates to their house on Valentine’s Day, and by having Ms.

Richardattempt to serve her with his application to set aside the restraining order. [9] Mr. Knoflook acknowledged that he had called the Lovelett residence to speak with Mr. Lovelett and arrange a meeting aboutsome family business. He erroneously believed that Mr. Lovelett was not included in the restraining order. He denied sending anythingon Valentine’s Day. [10] Ms. Richard, Mr. Knoflook’s partner, testified that she had herself purchased Jaclyn an assortment of presents from “La SenzaGirl,” some pink sleepwear and accessories, for her birthday. She felt sorry for Jaclyn because she and Mr.

Knoflook gave her grandsonbirthday presents, but not Jaclyn. She was aware of the restraining order, so she sent the present in a taxi. She provided an alibi for Mr.Knoflook for Valentine’s Day. They were together in Seattle. [11] These violations of the restraining order have been adequately explained by Mr. Knoflook as innocuous attempts to mend fencesbetween the parties, in my view. They are at worst technical violations and there is nothing apparently sinister in any of them. I amsatisfied that these events provide no basis for greater fear on Mrs.

Lovelett’s part or on the part of any member of her family thanexisted at the time the restraining order was granted. [12] The primary bases on which Mr. Knoflook’s application was opposed at the hearing were the historical events that led up to therestraining order, consisting mainly of complaints about Mr. Knoflook’s interactions with his daughters, their husbands, and hisgrandchildren. In relation to these events, the facts were strongly contested. I will turn now to an assessment of that evidence. Events Preceding the Restraining Order [13] In mid-2007, Mr. Knoflook’s wife, and Mrs.

Lovelett’s mother, Mickeen Knoflook, was admitted into a care home, sufferingfrom Alzheimer’s. This was clearly a difficult time for the family.

[ 14 ] It is fair to say that Mr. Knoflook has always been somewhat difficult, or quick to anger. He agreed that he had not been easy to talk to as a father, and that his daughters were closer to their mother. After the grandchildren were born, Mr. Knoflook and his daughters had conflicts about discipline. [ 15 ] Relations became significantly more strained after Mrs. Knoflook went into care. In the fall of 2007, the Loveletts and Mr. Knoflook took a trip to Hawaii. At the airport, the parties were taking turns watching Jaclyn, while the others went to have a drink, because Jaclyn was not allowed in the bar. Mrs.

Lovelett described an incident where Mr. Knoflook left Jaclyn with a stranger for a brief time to come to the bar and tell the Loveletts that the plane would be boarding. Mrs. Lovelett believed there was plenty of time and he had not needed to come and find them. She was extremely alarmed that he had left Jaclyn. She ran out of the bar to go back to where Jaclyn was. Mr. Knoflook told her she was overreacting. [ 16 ] Mr. Lovelett confirmed this incident and how alarmed his wife was. Mr. Knoflook denied it. I am satisfied it probably happened. Mr. Knoflook may not remember it because as noted by Mrs.

Lovelett he thought nothing of it at the time. [ 17 ] If the incident occurred, it reflects a generational difference in parenting approaches. The main concern it raises is whether Mr. Knoflook is prepared to respect his daughter’s wishes regarding how she wishes him to interact with her child. His refusal to acknowledge her complaints or adjust his behaviour was a consistent theme in the interactions described at the hearing. [ 18 ] Mrs. Bethune testified about the historical events between her and her father referred to by Mrs. Lovelett in her application for the restraining order.

These consisted mainly of hearsay about threatening behaviour on Mr. Knoflook’s part when Mrs. Bethune ran away with a boyfriend at age 19. Apparently she obtained a restraining order at that time, which was 1997. These allegations were so dated as to be largely irrelevant. [ 19 ] Mrs. Bethune also made serious allegations that Mr. Knoflook exhibited inappropriate intimate behaviour with her daughters, on several occasions. The first of these was at Christmas of 2007 when the Bethunes had the family over for dinner to their home in Maple Ridge. Mrs. Bethune described Mr.

Knoflook as having her older daughter, who was about 7, on his lap, facing him, and bouncing her up and down on his crotch area. Mrs. Bethune asked him to stop, but he told her she was overreacting. She took her daughter off his lap and they had an argument. Mr. Knoflook became angry and left with the Loveletts. [ 20 ] Both Mr. and Mrs. Lovelett also testified about this incident. Mrs. Lovelett recalled Mr. Knoflook putting his hand on the child’s bottom under her clothing and also bouncing her on his lap, in his crotch area. His hand went up her skirt, up and down, not in a tickling motion.

She recalled her sister telling him not to tickle under her clothes, but Mr. Knoflook became angry and said he could do whatever he wanted. [ 21 ] In the spring of 2008 the family took a trip to Disney World, staying in adjoining rooms. Mr. Knoflook and Mike Bethune had a disagreement about discipline; a time-out that Mr. Knoflook did not think the daughter deserved. Mr. Knoflook may have invited Mike to “take it outside”. [ 22 ] Mrs. Bethune said that a day or two after that, her younger daughter told her she had woken up to see Mr. Knoflook standing over her bed, looking at her. Mrs.

Bethune spoke to her father about the child’s comment. She says he asked what her concern was, and told her that the Loveletts let him sleep with Jaclyn. [ 23 ] At the airport on the way home from this trip, Mrs. Bethune said, while they were waiting at the airport, Mr. Knoflook was again bouncing her youngest daughter, who was about three, on his crotch. She says she asked him to stop and he again said she was overreacting. She says he commented that it was “not like Mike wouldn’t like some young girl bouncing on his crotch.” [ 24 ] After they got back, Mrs.

Bethune tried to limit her father’s time alone with his daughters, but when she told him she did not want him to take one of them out for lunch without her, they argued. At that time, she said, he told her that when he sleeps with Jackie he “spoons with her”. She said she didn’t know what that meant but thought it was not good, so she called her sister. It appears this was in late 2007 or early 2008. [ 25 ] Mr. Knoflook said he bounced his granddaughters on his lap like any other grandparent. He denied that there was any discussion about this being inappropriate.

He said that Kimberly’s husband Mike complained about the noise when he played with the girls, and this intimidated Kimberly. He believed that Kimberly had merely told him not to bounce the child to stop her from laughing. [ 26 ] Mr. Knoflook denied that there was a dispute about bouncing the girls during the Disney World trip. He said the only argument that occurred there was when Mike was rough with one of the children, and he intervened. Mike apologized the next day. Mr. Knoflook also denied that there had been any conversation about one of the children waking up to find him standing at the foot of the bed.

He said he never told Kimberly he “spooned” with Jaclyn and when he first heard that term in Mrs. Lovelett’s materials, he did not even know what it meant. [ 27 ] Mrs. Lovelett said that after she heard from Mrs. Bethune about the “spooning” conversation, she stopped permitting her father to be alone with her daughter. She did not however discuss this decision with him, or the alleged conversation, she said, because she thought he would just get angry. [ 28 ] Mrs. Bethune now lives in Oregon with her husband Mike, having left Canada in early 2009. She says they moved to the U.S. to avoid Mr.

Knoflook, but the timing is not entirely consistent with that assertion. [ 29 ] During the time that these alleged incidents occurred, tensions among the family members were also escalating for other reasons. During the Disney trip, Mr. Knoflook informed the family that he was considering obtaining some female companionship. It was his evidence that Mrs. Knoflook had by then stopped recognizing him. He had spoken to the head nurse of the Alzheimer’s association, and she had advised him to move on with his life, as his wife would not recover. [ 30 ] Mrs. Lovelett said that she and Mrs. Bethune had confronted Mr.

Knoflook about whether he was dating, and he admitted he

was. He denied this, stating that Ms. Richard was the first woman he dated, and he met her through the internet after the Disney trip. There were no allegations by the daughters of any knowledge of prior companions and it is reasonable to accept that Ms. Richard was his first and only girlfriend, and that the conversation with his daughters preceded his meeting her. [ 31 ] In any event, it is clear that Mrs. Lovelett, her husband, and Mrs. Bethune were not happy with the prospect of Mr. Knoflook seeing other women. Mr. and Mrs. Lovelett both testified that they told Mr.

Knoflook on the Disney trip that he should divorce Mrs. Knoflook, if those were his intentions. Mr. Knoflook did not want to do that. [ 32 ] The conversation descended into a very unfortunate discussion about the financial effects of divorce on Mrs. Knoflook’s estate, and became quite heated. Both Mr. Knoflook and Mrs. Lovelett developed the impression that the other was primarily motivated by financial concerns. Mr. Knoflook came away thinking that his daughters just wanted to ensure that his wife’s one-half interest in his home went to them when she died.

He said they told him he “wanted it all”. [ 33 ] Mr. and Mrs. Lovelett recalled that they had suggested to Mr. Knoflook that there were places he could meet other people his own age, but he made it clear he was talking about dating. Mrs. Lovelett said she was concerned that it would be confusing for Jaclyn to see her grandfather with other women while Mrs. Knoflook was still alive and they all visited her in the home together. [ 34 ] Mrs. Lovelett’s recollection of the conversation about assets was that when she and Mr. Lovelett suggested he divorce Mrs. Knoflook, Mr.

Knoflook asked why he should, since if she died first, he would “have it all.” [ 35 ] After the Disney trip, Mrs. Bethune says that Mr. Knoflook only saw her children in her presence until she moved. As I have noted, Mrs. Lovelett said she made a similar decision to limit his contact. In fact, as I will discuss in a moment, apart from some chance encounters, Mr. Knoflook had no visits with Jaclyn between about May 2008 and May 2009. [ 36 ] Either at the time of the “divorce” conversation or shortly after that, Mr.

Knoflook decided to change his will to remove his daughters as beneficiaries and pass his estate directly on to his grandchildren. The evidence conflicted as to whether he discussed this decision with his daughters before he later fulfilled his intention. [ 37 ] Mr. Knoflook started dating Ms. Richard in August or perhaps July 2008. Mr. Knoflook and Ms. Richard “ran into” the Loveletts twice in the summer of 2008, perhaps on the same day, once at a bank in Deep Cove, and once when they were all accidentally seated together at the same table at the Deep Cove Yacht Club. [ 38 ] In the incident at the bank, Ms.

Richard and Mr. Knoflook recalled that Jaclyn appeared pleased to see him. He may have called her over to the car, where Ms. Richard was sitting in the passenger seat. Ms. Lovelett said Jaclyn went toward the car but then retreated and appeared upset and confused. This was the first time she had seen Ms. Richard. [ 39 ] When they met at the yacht club, Ms. Richard was not aware that the family did not approve of her seeing Mr. Knoflook. They all decided to make the best of an awkward situation. However, Mr. and Mrs. Lovelett both related what they perceived as an offensive conversation in which Ms.

Richard talked about being in bed with Mr. Knoflook. [ 40 ] Mrs. Lovelett said it had started with a remark she made about her husband having a mouth guard to prevent him from snoring. Ms. Richard said something about tickling Mr. Knoflook’s feet. Mrs. Lovelett took offense and Ms. Richard responded to the effect of “surely your parents must have talked about being in bed together”. [ 41 ] Mr. and Mrs. Lovelett both said that Mr. Lovelett had to take Jaclyn away from the table to avoid this conversation, and they left very shortly after that. [ 42 ] Ms.

Richard denied that she made a remark about sleeping with Mr. Knoflook. Mr. Knoflook recalled only that Jaclyn was again glad to see him but every time she tried to come over toward him, the Loveletts called her back. He has since let his yacht club membership lapse and moved his boat, so as to avoid these situations. [ 43 ] Mrs. Lovelett’s relationship with her father became particularly strained after these incidents. She felt that Mr. Knoflook wanted to force Jaclyn to meet his girlfriend. She said she made it clear to her father that she did not want Jaclyn exposed to Ms. Richard, and he was not pleased.

He wanted to bring Ms. Richard with him when he visited or came to watch Jaclyn’s ringette games and Mrs. Lovelett would not permit this. [ 44 ] Sadly, Mrs. Knoflook passed away in December 2008. Ms. Richard said she went with Mr. Knoflook to clean out Mrs. Knoflook’s room at the care home, and she was dismayed that their daughters did not help. At some point while going through Mrs. Knoflook’s things, Mr. Knoflook found documents showing that she had previously been married and borne a stillborn child. He was very upset by this. [ 45 ] In due course, Mr.

Knoflook sold his house in North Vancouver and rented an apartment in White Rock in the same complex as Ms. Richard. Mr. Knoflook recalled an occasion before the house was sold when Mr. and Mrs. Lovelett had stopped by. Jaclyn saw him and started crying to see him. She gave him a hug, and went on the swings in the backyard. He talked to the Loveletts in the driveway. He recalled that they told him they were upset about his relationship with Ms. Richard, but they did not say anything about having any concerns about inappropriate behaviour with Jaclyn. [ 46 ] On another occasion, Mr. Knoflook went to Mrs.

Lovelett’s house to get a safety deposit box key. He arrived just as Mrs. Lovelett and Jaclyn were leaving, and Mrs. Lovelett asked him to come back later. He did not wish to do that, as he was living in White Rock. He asked her to get the key for him. Mrs. Lovelett says that Mr. Knoflook got angry, but he said he talks loudly because of a hearing problem, and Mrs. Lovelett was yelling herself. Both were concerned that the argument took place in Jaclyn’s presence. [ 47 ] Apart from the above encounters, Mr. Knoflook did not see Jaclyn for the better part of a year after May 2008. However, while Mrs.

Lovelett wanted to give the impression she had restricted Mr. Knoflook’s access to Jaclyn out of concern arising from the

“spooning” conversation, the evidence is more consistent with a conclusion that Mr. Knoflook was himself reluctant to make the trek to North Vancouver because of a combination of Mrs. Lovelett’s refusal to permit Jaclyn to be exposed to Ms. Richard, his own move to White Rock, and the increasing tension between the parties. [ 48 ] In May of 2009 Mr. Knoflook completed the changes to his will and arranged for his solicitor to send letters to his daughters advising them of the change. Shortly after that, Mr. Knoflook went to see Jaclyn play ringette. Mrs. Lovelett had just received the lawyer’s letter. Mrs.

Lovelett said Mr. Knoflook started an argument at the rink, saying bad things about her mother. She asked him to leave. She acknowledges that she may have brought up the subject of the changes to Mr. Knoflook’s will. [ 49 ] Mr. Knoflook recalled that they were having a good time, talking and laughing in the change room, when Mrs. Lovelett “blasted him” about his relationship with Ms. Richard. Jaclyn asked why they were arguing, and he told her he had to go, hugged her, and left. While he was leaving, he said, Mrs. Lovelett was still screaming at him, saying he wouldn’t see Jaclyn again.

He came back in, and told her he had grandparent’s rights, and would take it to court. He believed Mrs. Lovelett had set up the meeting to provoke him in front of witnesses. [ 50 ] Mr. Knoflook received Mrs. Lovelett’s restraining order shortly after the incident at the ringette rink. Mrs. Bethune went to court in the U.S. and obtained a restraining order at about the same time. Her explanation for this timing was that Mrs. Lovelett had told her Mr. Knoflook intended to sue for grandparent’s rights. [ 51 ] Mr. Knoflook acknowledged that he called the Lovelett home several times in violation of the order.

He wanted to speak to Mr. Lovelett about giving Mrs. Lovelett her mother’s ashes. As already noted, he mistakenly believed he was permitted to speak to Mr. Lovelett. They arranged to meet at a coffee shop. Mr. Knoflook asked Mr. Lovelett about lifting the restraining order. [ 52 ] Mr. Knoflook says that Mr. Lovelett told him that if he put Mrs. Lovelett back in the will, she would cancel the restraining order. Mr. Lovelett recalls the conversation differently. He says he told Mr. Knoflook that it was a pretty sad state of affairs when a father felt it necessary to take his daughters out of his will.

Analysis Concerns About Jaclyn’s Safety if Access is Granted [ 53 ] This family was under a lot of stress at the time when the majority of events outlined above occurred. The unfortunate deterioration and death of Mrs. Knoflook from the insidious disease of Alzheimer’s clearly took a significant toll. Regrettably, there are no ground rules or guidelines for maintaining harmony within a family who is experiencing the gradual loss of a matriarch. Conflicts such as those that occurred in this family are probably inevitable. [ 54 ] Mr. Knoflook has a difficult personality; there is no doubt about that.

It must also be borne in mind that he was experiencing the gradual loss of his life companion, and was probably under a great emotional burden. [ 55 ] His interactions with his daughters and their husbands, particularly after Mrs. Knoflook was no longer present, were confrontative and conflictual. Some of these interactions were not unique to this family and might be simply generational differences, such as conflicts regarding discipline of children or the level of supervision required in a public place.

However, one contributing factor to the amount of tension this family experienced was the tendency of all of the parties to overreact: the daughters to behaviour they deemed unacceptable on the part of their father; and the father to their criticism of his behaviour. [ 56 ] As for the knee-bouncing incidents related by Mrs. Bethune and the Loveletts, I am satisfied that these incidents probably happened, but I am not satisfied they reflect any sexual deviance on Mr. Knoflook’s part. I have my doubts about whether they were anything more than described by Mr.

Knoflook; harmless grandfatherly affection, or at worst, excessive tickling. These children were very young at the time. Both incidents occurred with other persons present, on one occasion in the presence of the whole family, and on the other, in a public airport, which is inconsistent with Mr. Knoflook being motivated by any kind of sexual gratification. These are not the kind of settings where one usually sees improper contact occurring with small children. [ 57 ] In addition, there is little that was seriously inappropriate about the behaviour even as it was described by Mrs. Lovelett and Mrs.

Bethune, in my view. If indeed the daughters were as concerned as they say were about his behaviour, those concerns may perhaps be explained by a generational conflict as to appropriate boundaries or acceptable demonstrations of physical affection between grandparents and grandchildren. [ 58 ] What the incidents do reflect, again, is Mr. Knoflook’s unwillingness to accept direction from his daughters as to how they prefer him to interact with their children. Instead of respecting their wishes, he denies wrongdoing and defends his behaviour.

It is likely he was offended by the suggestion that what he was doing was inappropriate; however, a better approach would have been to simply apologize and cease the offending behaviour. [ 59 ] The “spooning” comment, if it occurred, can perhaps be explained as an attempt on Mr. Knoflook’s part to allay what he viewed as Mrs. Bethune’s unreasonable fears that he was behaving inappropriately. Perhaps he did say something about being permitted to sleep with Jaclyn, and perhaps on occasion he had done so, when he spent the night at the Loveletts.

There is nothing inherently inappropriate in that. [ 60 ] There is no suggestion on the evidence that Mr. Knoflook did anything inappropriate with Jaclyn, though, sadly, Mr. Lovelett accepted counsel’s suggestion that they believed he “sexually abused” her. I must observe that nothing described by any of the witnesses comes close to that characterization, and it is a remarkable characterization in light of the fact that for many months after these incidents occurred, neither parent mentioned their concerns to Mr. Knoflook, notified any authorities, sought any professional help, or took any

legal action. [ 61 ] Moreover, when the complaints about inappropriate behaviour on Mr. Knoflook’s part are considered in light of the sequence of events it is difficult not to question the depth of the Loveletts’ concerns. These events commence with Mr. Knoflook’s decision to date before his wife passed away. His daughters and their husbands all expressed the view that if those were his intentions he should divorce his wife. Unfortunately, the conversation took a turn into the delicate issue of inheritances, a subject fraught with the potential for significant misunderstanding and hurt.

That conversation was clearly a catalyst for the ensuing heightened conflict between the parties. [ 62 ] While Mrs. Lovelett says that her concern at that time was Jaclyn’s sensibilities, she seems to have blended this conversation with later ones about Ms. Richards. The evidence does not suggest that Mr. Knoflook was proposing to bring dates to family gatherings at the time of the initial discussion.

It seems more likely that the daughters’ concern at that time was simply the concept of having their father date while their mother was still alive. [ 63 ] This is an area where the ground rules are simply unclear, but Mr. Knoflook’s decision to follow the Alzheimer nurse’s suggestion, and to discuss this decision with his daughters, did not necessarily entitle them to pronounce their views on what he should do about his marriage to their mother. And Mr. Knoflook probably overreacted.

Having seen his daughters cross the line from expressing their own concerns to suggesting divorce, he may have erroneously concluded that their main concern was financial. [ 64 ] There was no right answer to the question of what Mr. Knoflook should do in the circumstances. Understandably, the family was hurt or taken aback by his decision, but for them to enter the realm of marital advice was likely equally hurtful and alarming to him. [ 65 ] The “dating” discussion was followed by several chance encounters with Mr. Knoflook and Ms. Richard, including the yacht club incident.

It seems likely that some kind of conversation about snoring occurred, but that it was innocent on Ms. Richard’s part. She was unaware of the family’s feelings. She was dating Mr. Knoflook. While it may have been disconcerting to hear her talk about his snoring habits, Mrs. Lovelett herself admits to raising the subject. It would appear to have been a relatively innocuous exchange, and the Loveletts’ leaving abruptly as they did was possibly as disturbing to their daughter at her age as it would have been to overhear Ms. Richard’s remarks. [ 66 ] After that, there were several confrontations between Mrs.

Lovelett and her father about his dating Ms. Richard, and an impasse. While Mrs. Lovelett maintains she restricted Mr. Knoflook’s access after the Disney trip out of concerns regarding his behaviour, in fact, as I have noted, it seems more likely he declined to visit because of the level of conflict and her views regarding Ms. Richard. In any event, there was in fact little contact, and nothing transpired after the Disney trip and “spooning” comment that would serve to heighten any of Mrs. Lovelett’s concerns about inappropriate behaviour. The only contact after that consisted of confrontations about Ms.

Richard and the will. [ 67 ] The incident that directly preceded Ms. Lovelett’s application for a restraining order was the confrontation at the ringette rink. That conversation centred on the will changes, and Mr. Knoflook’s discovery of the revelations about his wife. It is not surprising that it became a heated confrontation, but Mrs. Lovelett admits to having raised the will issue herself. [ 68 ] None of what they talked about had anything directly to do with Jaclyn’s safety or wellbeing. That is remarkable in itself, given what Mrs.

Lovelett said were her major concerns immediately after that when she made her application. While she said she was afraid to raise the topic with him, she had no apparent reluctance to confront him about Ms. Richard or his changes to his will. This confrontation apparently culminated in a telling threat to withhold access, on her part, and a threat to enforce it, on his. [ 69 ] I must conclude in all the circumstances however that Mrs. Lovelett’s primary motivation in obtaining the restraining order, at the time she did, was retaliation for her father’s decision to change his will.

The timing supports that conclusion as does the behaviour of the parties throughout, culminating with Mr. Lovelett’s conversation with Mr. Knoflook at the coffee house, in which even Mr. Lovelett confirmed that the issue of the restraining order and the will changes were both discussed. [ 70 ] I find that the concerns about Mr. Knoflook’s behaviour expressed by both Mr. and Mrs.

Lovelett at the hearing, such as inappropriate interactions with his grandchildren, inadequate supervision, and intemperate dinner conversation, were exaggerated and contrived as an afterthought to justify their decision to take the matter to the courts. [ 71 ] It is unfortunate that Mr. Knoflook’s estate ever became a focus of the conflict between the parties. The whole subject should have been divorced from the issue of his access to Jaclyn. It is not clear who raised the subject, but it should be laid to rest. Mr.

Knoflook has provided for his grandchildren; he has no legal obligation to provide for his adult children. Mrs. Lovelett should not take out on her daughter, whom the evidence shows had a close bond with Mr. Knoflook, any disappointment she may have with him. [ 72 ] Nothing in the evidence supports a conclusion that Mr. Knoflook, or Ms. Richard, pose a risk to Jaclyn’s safety or wellbeing, in my view. Ms. Richard appears to be a caring partner for Mr. Knoflook, and a capable authority figure for a child Jaclyn’s age.

She has her own grandson, similar in age to Jaclyn, who spends time at her residence, often when Mr. Knoflook is there. To her observation, Mr. Knoflook interacts appropriately and affectionately with her grandson. She also observed that Jaclyn has affection for her grandfather. [ 73 ] While the evidence does suggest that Mr.

Knoflook should be more respectful and attentive to the directions of Jaclyn’s parents regarding his interactions with her, I expect that the experience of the last two years, culminating in the court proceedings, has brought that home to him. [ 74 ] It is also clear that there remains a significant degree of conflict between the parties. The issue remaining to be determined is whether that conflict is such it would be contrary to Jaclyn’s best interests to grant Mr. Knoflook’s request for access. Potential for Conflict if Access is Granted

[75] The case of Chapman v. Chapman, cited at the outset of these reasons, deals with the granting of access to a grandparent in ahigh-conflict family. It was considered recently by Master Keighley, in T.F. v. K.R.C., 2010 BCSC 1808. He reviewed the Manitoba andOntario authorities that Justice Brenner considered in the Chapman case, including Lusher v. Lusher, (1988), (ON CJ),13 R.F.L (3d) 201, at 206, and observed: The court expressed the view that where access with the grandparent would be a positive experience for a child, the court will ensuresuch access is maintained.

On the other hand, the court felt that where access would be exercised in a hostile environment which mightundermine or endanger the stability of the child or otherwise represent a risk to the child’s safety and comfort, access should be denied. [76] In Chapman, Justice Brenner adopted a three-fold test for assessing a non-parent’s application for access, which is paraphrasedabove, and frequently cited: 1. The onus is on the applicant to demonstrate that the proposed access is in the child's best interests. 2. The custodial parent has a significant role.

The courts should be reluctant to interfere with a custodial parent's decisionand should do so only if satisfied that it is in the child's best interests.3. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent anda non-parent. While the court must be vigilant to prevent custodial parents from alleging imagined or hypotheticalconflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child's best interestswill rarely, if ever, be well served by granting access. [77] Chapman v.

Chapman involved a substantiated allegation of childhood sexual abuse of the subject child’s parent by thegrandmother’s current partner. Brenner J. concluded that the conflict and hostility between the parents and grandmother precluded accessbut cautioned against permitting a parent to defeat a worthy application by raising allegations of conflict.

I would observe as well that thedegree of conflict may in some circumstances be within the control of the respondent, and a parent should not be permitted to hold thechild ransom on threat of conflict where there are no reasonable bases for the parent’s objections to access. [78] As for the potential for conflict in this case, I see it as less significant if the parties are able to lay their grievances aside, andrefrain from discussing family business in the presence of the child. In any event, the conflict, as it stands, exists between Mr. Knoflookand Jaclyn’s parents, and Mr.

Knoflook is not seeking to have contact with either of the parents. If access occurs without contact betweenthem, there is little chance that Jaclyn will be exposed to the kind of environment that concerned Justice Brenner in Chapman. Conclusion Regarding Access [79] The evidence supports a conclusion that Jaclyn had a strong bond with her grandfather, whom she referred to as “Opa,” until atleast May 2009. Two further years have passed in her young life, and the bond may have weakened.

I am satisfied however that it issquarely in her best interests for her to rekindle that bond before further years elapse and she grows up without knowing her grandfather.None of the facts I have heard justify denying Jaclyn the opportunity to resume a relationship with her grandfather while she is young,and before it is too late for her to do that. The re-introduction may have to be gradual, but in due course I expect they will rediscover anormal familial bond. [80] While Mrs. Lovelett has raised her own health concerns in resisting an order for access, the issue is what in the best interests ofthe child.

Obviously it is not in Jaclyn’s interest to have Mrs. Lovelett’s health more seriously challenged than it is; however, I amhopeful that the resolution of the court proceedings will assist to alleviate her stress. If she needs to, she can minimize conflict for herselfby avoiding contact with Mr. Knoflook. Restraining Order [81] Turning to the restraining order, it was made on an ex parte basis and Mr. Knoflook deserves to have it revisited. While Mrs.Lovelett testified to certain concerns regarding contact between Mr.

Knoflook and her family, I find on balance that none of thoseconcerns were justified. [82] Far from attempts at contact or harassment, Mr. Knoflook made only one scheduled visit to North Vancouver in the yearpreceding the application. There were two other chance encounters, neither of which was cause for concern about unwanted contact orharassment. I have already observed that none of the events following the restraining order raised any cause for concern. Mrs. Lovelett’smain concern appears to have been exposure to Ms.

Richard, not a cause for concern about anyone’s safety. [83] At worst, the evidence establishes that Mr. Knoflook has a difficult personality; a challenge which is not unique to thisparticular family, and not insurmountable. It must be borne in mind that at the relevant times Mr. Knoflook found himself in very tryingfamily circumstances, as did the Loveletts. Time has passed since then. Mr.

Knoflook is in happier circumstances now and arguably willbe less difficult, given that and given what he must have learned from the whole court proceeding about his daughter’s sensibilities. [84] Even if it was justified when made, there is no longer any justification for the dramatic remedy of an order preventing Mr.Knoflook from having contact with his closest family members. If the Loveletts prefer not to have direct contact with him, a mutually

agreeable central meeting place can be arranged with a neutral third party providing Jaclyn’s transportation. [ 85 ] As for Mrs. Lovelett’s own relationship with her father, I would just add the following. The timing of his decision to move on with his life was probably disturbing to her. It was probably inevitable that he would do that at some point. He is fortunate to have found Ms. Richard, who seems like a caring companion for him. At some point, Mrs. Lovelett will need to accept that she is a part of his life, and therefore of the family. [ 86 ] I am mindful of Mrs.

Lovelett’s health concerns and her assertion that reinstating contact with Mr. Knoflook may exacerbate those. I have already observed that if she feels she needs to, she may avoid contact with her father, to reduce the potential for future conflict and alleviate her stress levels. [ 87 ] I would suggest however that a resolution of the differences between the parties would go a long way toward lessening Mrs. Lovelett’s stress. Perhaps they will consider some counselling or therapy to see what they can salvage of their familial relationship before too much time passes. Order [ 88 ] Mr.

Knoflook will have access to Jaclyn in a public place agreed upon between the parties, at agreed times, supervised by Ms. Richard or another person agreed upon by the parties, which may include either Mr. or Mrs. Lovelett or both of them. [ 89 ] At Mr. and Mrs. Lovelett’s option, communication between the parties may be through a third party of their choosing, by telephone, or in another manner agreeable to them. [ 90 ] Mr. and Mrs. Lovelett may provide Mr.

Knoflook with directions regarding levels of supervision, appropriate activities or other ground rules for access visits, either in writing or in person, at their option. Mr. Knoflook will comply with any such reasonable directions. [ 91 ] Any conflict regarding supervisors, access times, communication, or ground rules may be referred on short notice to the court for a resolution. [ 92 ] Mr. Knoflook and Ms.

Richard will refrain from engaging in discussions about inappropriate topics in Jaclyn’s presence during access visits. [ 93 ] At the Loveletts’ option, in due course access may be expanded to occur at family gatherings, at Mr. Knoflook’s residence, or elsewhere, with or without supervision. [ 94 ] The restraining order of May 19, 2009 is cancelled. The Honourable Carol Baird Ellan Provincial Court Judge