S.B.O. v. M.J.H. Date:, 2012 BCPC 124

Citation: S.B.O. v. M.J.H. Date: 20120423 2012 BCPC 0124 File No: F9212 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.B.O. APPLICANT AND: M.J.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WISHART Counsel for the Applicant: B. MacLeod

Counsel for the Respondent: C. Allen Place of Hearing: Duncan , B.C. Date of Hearing: March 5,8, 9 2012 Date of Judgment: April 23, 2012 Introduction [ 1 ] This is the application of M.J.H., the biological father of C., for custody of his son who is five years old. Tragically, C.’s mother S.O. died in a car accident on May 14, 2011. The Respondent in this matter is S.B.O., S.O.’s sister and C.’s aunt. S.B.O. and her partner A.B. have had interim custody of C. since his mother’s death. S.B.O. also seeks custody of C.

Position of the Parties [ 2 ] M.J.H.’s position is that as the biological father he has a special bond with C. that S.B.O. does not have: therefore he should have custody of C.. He can provide for C. financially and would ensure his success in life.

M.J.H. has recently changed many facets of his life for the positive: at the end of 2011 he ended his business in Europe that required him to be out of the country approximately 6 months of the year; he has recently married and he and his new family, including a step-daughter and 11 month old son, have settled in Vernon B.C.; and he has a new job with a software company.

In his view it is in the best interests of C. for M.J.H. to have custody, and for C. to be part of this new family in Vernon B.C. [ 3 ] S.B.O.’s position is that she has been a significant part of C.’s life since birth, more so than M.J.H., and that it is in C.’s best interest to remain with her and her family. C. is very close to her, to her partner A.B. and particularly their 5 year old son N.O. who C. considers his brother. They live in Duncan near C.’s extended maternal family. Standing of S.B.O. [ 4 ] Mr.

Allen on behalf of M.J.H. raised 3 issues with respect to the standing of S.B.O. in these proceeding: she is not a party; there was a reference at the interim hearing in May of 2011 that S.O. named S.B.O. in her will as the guardian of C. but this document was not entered into evidence; and S.B.O. did not file a reply to M.J.H.’s application filed May 16, 2011 for custody of C. [ 5 ] None of these issues affects the standing of S.B.O. to be a party to these proceedings or to seek an order for custody of C. The pleadings were amended on May 18, 2011 to add S.B.O. as a party to the proceedings instead of S.B.

She clearly has legal standing. It is true that there was no evidence presented at this hearing regarding S.O.’s will and her wishes with respect to guardianship of C. I therefore have not considered this in making my determination with respect to custody of C. but it does not affect the standing of S.B.O. S.B.O. did not file a reply – the parties were in court on very short notice after the death of S.O. on M.J.H.’s application for custody. Interim custody was granted to S.B.O. pending a full hearing.

M.J.H. had full notice of her intentions with respect to his application and her failure to file a reply does not affect her ability to seek an order for custody of C. The Law [ 6 ] As with any case involving custody or access the decision must be made based on the best interests of the child.

Section 24 of the Family Relations Act stipulates the factors that the Court is required to consider. 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child;

(

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. [ 7 ] In order to properly apply these factors to this case it is necessary for me to consider the history of the relationship betw een C. and each of the parties. Evidence - M.J.H. and C. [ 8 ] The following witnesses testified on behalf of the Applicant: M.J.H., his mother D. H., his brother T.H., and F.I., a friend from Vernon B.C.. S.B.O., her mother F.C., her sister B.M. and her partner A.B. testified on behalf of the Respondent.

Various documents were entered into evidence including some electronic communication between the deceased S.O. and M.J.H.. [ 9 ] There is no question that M.J.H. loves his son C.. M.H. testified that despite long periods of time that he didn’t see C., he has a close bond with his son. M.J.H. was out of the country for significant periods of time during C.’s life. He acknowledged that this necessarily affected his ability to spend time with C. but also blamed C.’s mother S.O. for thwarting his access when he was available. [ 10 ] At the time of S.O.’s death she had sole custody of C..

The history of the proceedings between S.O. and M.J.H. is relevant to this hearing to assist in explaining periods of time when M.J.H. did not see his son so I will outline the nature of their relationship and the various court orders that ensued. [ 11 ] C. was born on [DOB]. At that time M.J.H. and S.O. had been living together in Cumberland B.C. for about one and half years. They continued to live together as a family after C.’s birth but separated in June of 2007 when S.O. and C. moved to Duncan B.C., to be closer to her family.

She and C. remained in the Duncan area thereafter enabling frequent contact between C. and his maternal relatives. [ 12 ] After their separation there were various applications and court orders dealing with custody and access. Ex Parte Order dated June 29, 2007 restraining M.J.H. from having contact with S.O.. At a Family Case Conference on October 26, 2007 the parties agreed to an Interim Order for access by M.J.H to be supervised, on three specific dates. Order dated February 4, 2008 cancelling the restraining order of June 29 2007.

Order dated April 15, 2008 by consent for joint custody and joint guardianship with primary residence of C. with S.O.. Access by M.J.H. when he was in the country on a three day on - four day off rotation. Notice of Motion dated April 25, 2008 filed by S.O. seeking to vary the Order made April 15, 2008 to sole custody and with supervised access to M.J.H. because of an assault allegation. Final Order dated June 29, 2009 by consent for sole custody to S.O. with joint guardianship.

The Order provided for a six week trial period of supervised access by M.J.H. and stipulated that he was required to attend all access visits, attend an anger management program and submit to twice weekly alcohol and drug testing. Both parties were required to complete a parenting after separation course. If M.J.H. complied with the terms of the six week trial period, then the parties would agree to joint custody and guardianship with primary care and control of C. with S.O. and M.J.H. would have unsupervised access.

The parties also consented to mutual restraining orders prohibiting contact except through counsel to arrange access. Notice of Motion filed February 11, 2010 by S.O. seeking sole custody and guardianship of C.. Notice of Motion filed March 16, 2010 by M.J.H. seeking unsupervised access to C.. Final Order dated January 24, 2011 granting sole custody and guardianship of C. to S.O.. Access by M.J.H. was limited to a maximum of six hours during the day time and that he not consume alcohol prior to an access visit.

M.J.H. did not attend this hearing. [ 13 ] Witnesses gave evidence as to the nature of the relationship between S.O. and M.J.H and C.. It is not disputed that M.J.H. spent significant period of times out of the country and away from C.. His evidence was that he spent approximately 6 months of the year out of the country from the time of C.’s birth up to January of 2012, however C. and S.O. travelled with him prior to their separation in 2007.

He testified that the one exception to this was in 2009/2010 when spent the majority of the year in B.C. after the June 29, 2009 Order trying to exercise access to C.. [ 14 ] From the time of C.’s birth until 2012, M.J.H. ran a business called “BC Bud Depot” or “BCBD”. The business involves the sale of marijuana seeds outside of Canada. While illegal in Canada, this business is not illegal in the countries in which M.J.H. conducted his business, primarily the Netherlands.

He earned a significant income from this business but had to declare bankruptcy in 2011 because of his failure to pay appropriate income tax on that income. The nature of his business is not a factor that I have taken into consideration in determining the issue of custody. However, the fact that this business required him to be out of the country for significant periods of time over the last five years is relevant. [ 15 ] S.O. was also involved in the BCBD business and travelled out of the country with M.J.H.. Shortly after their separation in 2007 S.O.’s involvement in the business ended.

[ 16 ] After the separation M.J.H.’s access to his son was infrequent and inconsistent not only because he was out of the country a large amount of the time, but also because of other issues between himself and S.O.. M.J.H. testified that during the times when he was in British Columbia, his access to C. was restricted by S.O. because of disputes over child support. Disputes over child support did occur as is evidenced in the electronic communications between S.O. and M.J.H..

These communications appear at Tabs 2 and 3 of Exhibit 1. [ 17 ] S.B.O. testified that she was aware of disputes between her sister and M.J.H. over child support but that this had nothing to do with access by M.J.H.. She testified that S.O. encouraged access by M.J.H and wanted him to be more consistent in his access with C.. This too is seen in the electronic communications between S.O. and M.J.H. [ 18 ] There were other issues that affected M.J.H.’s access to C.. One of these issues was M.J.H.’s drinking.

S.B.O. testified that prior to S.O.’s death, access was supervised at times because M.J.H. is an alcoholic and drank to an excess at times when C. was in his care. This concern is reflected in the consent Order of June 2009 in which M.J.H. was required to undergo counselling for anger management, and to submit to urine tests for alcohol and drug use. His access during that six week trial period was required to be supervised.

The concern regarding his alcohol consumption is also reflected in the Order of January 24, 2011. [ 19 ] Another factor that impacted M.J.H.’s access to C. when S.O. was alive, was allegations of physical violence by M.J.H. against S.O.. This is reflected in the Order of June 29, 2007, the Notice of Motion filed by S.O. on April 25, 2008 and the Order of June 29, 2009. [ 20 ] In June of 2009 (prior to the June 29 Order) M.J.H. was convicted after a trial of assaulting S.O..

I assume that this relates to the allegations contained in the Notice of Motion filed by S.O. on April 25, 2008 but the offence date is not particularly relevant. [ 21 ] M.J.H. described that incident in this proceeding and denied that he assaulted S.O., despite being convicted. He stated that they were arguing, she pushed him and he was trying to defend himself: she tripped and fell and he grabbed her to try and help her down and she lost some hair in the fall. S.B.O. testified that while she did not witness this assault she did see the “toonie” sized area on her sister’s scalp where hair was missing.

She was also present at the criminal trial when M.J.H. testified. His evidence at that time was not that her hair had come out when he was trying to break her fall, rather he testified that she had pulled her own hair out and made a false allegation against him. [ 22 ] B.M. testified about an incident that she witnessed in July of 2007 when she accompanied her sister S.O. on a trip to Amsterdam along with M.J.H. and C. who was 9 months old at the time. During that trip they all stayed on a houseboat. M.J.H. spent most of the time attending to the business and was often absent in the evenings as well.

B.M. testified that on one evening M.J.H. returned to the houseboat and he was intoxicated. S.O. asked her to take C. to the lower level and she did. B.M. heard them argue and a banging sound and S.O. saying “don’t!”. She testified that she went upstairs and saw M.J.H dunking S.O.’s head in and out of the toilet. When M.J.H saw her he stopped and S.O. told her to go and get C. as they were leaving. M.J.H then told B.M. that if she did he would throw her down the stairs and break her neck.

S.O., C. and B.M. left the house boat that night and stayed in a hotel until they returned to Canada the next week. [ 23 ] When M.J.H. was asked in cross-examination about this incident and dunking S.O.’s head in the toilet he stated that he didn’t recall that. [ 24 ] S.B.O. was present on another occasion in which she alleges that M.J.H. assaulted S.O.. This occurred shortly after C.’s birth in the fall of 2006. She testified that she and her partner A.B. had gone to visit S.O. and the baby in Cumberland. M.J.H. came home and was intoxicated.

He picked C. up and when S.O. asked him to put C. down he grabbed her by the hair and tossed her to the ground and tried to drag her out of the house by her hair. A.B. had to calm M.J.H. down, eventually getting him to let go of C. and leave the residence. A.B. testified about this incident as well and confirmed that M.J.H was highly intoxicated at the time and described witnessing the same physical violence toward S.O.. [ 25 ] This violence is relevant to the issue of custody of C. because C. was present in the home on these occasions.

It also goes to the credibility of M.J.H., particularly his minimizing to the point of denying the assault for which he was convicted. I find that M.J.H. also minimized his issue with alcohol. He denied that he had a problem stating that he only drinks beer, not hard alcohol, and that he has cut down the amount that he drinks because it was not good for his health. He now only drinks one or two beer per day. [ 26 ] The consent Order on June 29, 2009 occurred on the day that S.O.’s application for sole custody was set for hearing – this was shortly after the assault conviction.

It is clear from that Order that it was designed to address concerns about M.J.H.’s violence, his alcohol consumption, and issues with him missing access visits. In that Order S.O. was given sole custody of C.. M.J.H agreed to take anger management counselling, and to submit to urine testing for alcohol and drugs twice per week. Both parties agreed to take a parenting after separation program. The plan was that the Order would be in place for 6 weeks and if followed, the parties would agree to joint custody and guardianship.

A further condition of the six week trial period was that M.J.H. was required to attend all scheduled access visits and the visits had to be supervised. [ 27 ] M.J.H. testified that he did what was required of him although there was no documentary proof provided of any counselling or supervised visit reports.

It is unclear from the evidence exactly what occurred after that six week trial period which would have ended in September 2009 other than the evidence of M.J.H. that S.O. continued to restrict his access to C.. [ 28 ] On February 11, 2010 S.O. filed a Notice of Motion seeking sole custody of C. on the basis that M.J.H. “did not undertake the steps required, pursuant to the Order of the Honourable Judge Palmer dated June 29, 2009”.

On March 16, 2010 M.J.H. filed his own Notice of Motion seeking an Order that S.O. be found in contempt of court in relation to the Order of June 29, 2009 and seeking specified unsupervised access every other weekend and shared holidays. In support of that Notice of Motion M.J.H. filed an Affidavit in which he stated that he had complied with the terms of the June 29, 2009 Order but had not seen C. since the end of August 2009. [ 29 ] On or about May 3, 2010 dates were set for a three day hearing in relation to the Notice of Motion of both S.O. and M.J.H..

The hearing was scheduled to start January 24, 2011 for three days with a Pre Trial Conference set for December 8, 2010 and a trial confirmation hearing set for January 12, 2011. Both parties were represented by counsel when the dates were set, the same counsel who

appeared at this hearing. [ 30 ] Mr. Allen appeared on M.J.H.’s behalf at the Pre-Trial Conference on December 8, 2010 but was no longer counsel for M.J.H. after that. I am satisfied that M.J.H. was aware of the hearing dates but he did not attend. [ 31 ] On the evidence of S.O., Judge Wood made a final Order granting sole custody and sole guardianship of C. to S.O..

M.J.H. was given unsupervised daytime access to C. for a maximum of six hours on the condition that he not consume alcohol prior to the access. [ 32 ] It is clear from the emails between him and S.O. [Exhibit 1, Tab 3] that M.J.H. was out of the country during the period of January 2011 to May 2011. While some of the emails are friendly in nature the main issue discussed between the two is child support. M.J.H. testified that S.O. used child support as a weapon and with held access to C. if he didn’t pay what she wanted. These emails do not support his testimony – in fact they show the opposite.

There is an email exchange dated January 7, 2011 in which they are discussing child support and M.J.H. wrote that if she didn’t agree to $500 per month that he would not return to Canada and C. would grow up without a father. [ 33 ] M.J.H. returned to Canada at the beginning of May and S.O. died on May 16, 2011. He testified that during this two week period he had C. in his care half of the time including over night visits. He asserted at the interim application for custody shortly after S.O.’s death that he in fact had joint custody based on this two week period.

He clearly did not have joint custody of C. at the time of S.O.’s death. I do however accept that he had the level of access that he described and this is evidence of both his relationship with C. and S.O.’s desire to have M.J.H. be part of C.’s life. Whatever problems they may have had, she wanted C. to have a relationship with is father. [ 34 ] M.J.H.’s mother D.H. testified about his relationship with S.O. and C..

She only saw C. on approximately ten occasions – some when S.O. and M.J.H were still together and a few times with S.O. after they separated and a few times with M.J.H., including twice during the summer of 2011. She confirmed the love and special bond between M.J.H and C. and that M.J.H is a gentle and caring father. She lives in Victoria. [ 35 ] T.H., M.J.H’s brother, also testified. He lives on Salt Spring Island with his partner and their infant twins.

He described S.O. as the cause of M.J.H’s problems including being the driving force behind M.J.H’s involvement in BC Bud Depot despite the fact that M.J.H started that business and carried on with it long after S.O. was out of the picture. He described her as capricious, spiteful, vindictive, dark, unstable, self-destructive and irresponsible. He claimed to know her well even though he testified that he hadn’t seen her since 2007. He was clearly biased and I reject his evidence.

While I have rejected his evidence I should state that his evidence on these points is also not relevant to the issue of custody as between S.B.O. and M.J.H.. [ 36 ] T.H. described M.J.H as an excellent father with a special bond with C. although he also stated that he hadn’t seen C. since 2007. Evidence – S.B.O. and C. [ 37 ] S.B.O. has been involved in C.’s life since his birth, more so after S.O. and M.J.H. separated. She was present at his birth and was S.O.’s birthing coach. She and S.O. were obviously very close. She saw C. several times a week, including for sleep-overs, since he was less was one year old.

C. and her son N.O. are only ten months apart and are very close. [ 38 ] S.B.O. spent every Christmas, birthday and major holiday with C., since his birth, along with other family members. S.B.O. testified that M.J.H. was not present for any birthdays or Christmas celebrations with C., nor did he send any cards or gifts. Her sister B.M. also testified to attending each of C.’s birthday parties and family Christmas gatherings and that M.J.H. did not attend a single one of these or send a card or gift for C.. [ 39 ] S.B.O. is engaged to her partner of 5 years, A.B..

He is not the father of N.O. but shares a parenting role with S.B.O.. N.O.’s father is D.D. and he has access visits with N.O. that the parties are able to arrange themselves without the necessity of a court order. A.B. has a year 19 year old daughter who lives in Nanaimo and they are very close. [ 40 ] There are other members of S.B.O.’s family in the Duncan area including S.B.O.’s mother and her partner, her sister B.M., an aunt and cousins.

They also see each other frequently, often daily, and have many family gatherings, which in the past always included S.O. and C.. [ 41 ] S.B.O. is an insurance broker and earns approximately $36,000.00 per year. A.B. has been a steel stud framer for approximately 18 years and earns between $50,000 and $60,000 per year. [ 42 ] I accept her evidence with respect to S.O.’s attitude towards M.J.H., that is, that S.O. valued M.J.H’s role as C.’s father and wanted access to be consistent. Access was not consistent because of M.J.H.’s absence and periods when S.O. had concerns about M.J.H’s drinking and anger.

Evidence – After the Interim Order of May 18, 2011 [ 43 ] After S.O.’s sudden death S.B.O. and M.J.H. appeared in court on an interim application for custody of C.. S.B.O. was granted interim sole custody and guardianship of C.. M.J.H. was given access for 6 hours at a time, three times per week on the condition that he did not consume alcohol prior to or during the access visits. [ 44 ] S.B.O. testified that after her sister’s death she sought assistance from a counsellor as to how to tell C. that his mother had died. She told him together with her partner A.B..

She also sought assistance on how to help C. through the grieving process – this has included reading age appropriate books with him on this topic. S.B.O. testified that in the months after his mother’s death he had difficulty sleeping and regressed in terms of his toilet training. He had abandonment issues and did not like to be alone, even in a room

for a few minutes, and for a few months he would only sleep in the same bed as her son N.O.. They still insist on sharing a bedroom even though there are enough bedrooms in the home for them to have their own room. [ 45 ] S.B.O. testified that M.J.H. exercised his access pursuant to the interim Order for approximately 4 weeks. Although C. was reluctant to go she and A.B. encouraged him to see his father. There were no issues with the visits during this period of time.

M.J.H. would typically text S.B.O. with the date and time for the next access visit and they would arrange pick up and drop off locations. [ 46 ] In June 2011 S.B.O. stopped receiving text messages from M.J.H. about access. She did not hear from him for several weeks and assumed he was away. When M.J.H. was asked if he let S.B.O. know that he was going to be away for more than three weeks re said that he “thought he did”. He did not get in touch with her again until approximately the second week of July. [ 47 ] M.J.H. testified that he left Canada for approximately three weeks in June and July to go to Russia.

At some point during his time in Europe he had developed a relationship with a woman from Russia named S.. M.J.H. and S. had a son M.H. who was born in [DOB], about 10 days after S.O.’s death. S. also has a daughter from a previous relationship who is approximately 7 years old. M.J.H. travelled to Russia in June of 2011 to see S. and his new born son and to start the process of bringing them all to Canada. [ 48 ] Upon his return in July he resumed access pursuant to the interim Order. S.B.O. testified about some concerns with C. in M.J.H’s care during this time period.

She described that he was late bringing C. to a lacrosse practise and that M.J.H. wore a t-shirt with a marijuana logo on it to the practise. She did not feel that this was appropriate to wear around small children. S.B.O. also described that M.J.H. had C. urinate in the corner of the gym rather than take him to a washroom. [ 49 ] There were also problems with M.J.H being late and he missed one or two visits, stating that he had slept in. M.J.H. testified that he is a medical marijuana user because of a back injury and he eats marijuana at night to help him sleep. Sometimes this causes him to sleep in.

The fact the he uses medical marijuana is not relevant other than to explain why he was late for some visits. [ 50 ] I found S.B.O. to be a very fair witness and she testified that despite a few late or missed visits, for the most part M.J.H. exercised his access according to the schedule. [ 51 ] Things changed at the end of July, 2011. By far her biggest concern was indications that M.J.H was consuming alcohol when he was with C.. She described smelling booze on his breath at the end of some access visits. On one occasion she and A.B. picked C. up at M.J.H.’s home.

S.B.O. described that there were lots of beer cans inside his home, marijuana crumbs on a scale and “High Times” magazines in plain sight. A.B. confirmed this. [ 52 ] A.B. also testified that on two occasions M.J.H. phoned at about the time that he was supposed to be dropping C. off in Duncan to request that one of them pick C. up at his home in Qualicum – about an hour from where M.J.H was supposed to drop him off. Both times that A.B. went to collect C. he described M.J.H. as being clearly intoxicated.

One of these occasions was in June and the other he believed to be on August 3, 2011. [ 53 ] M.J.H. testified that he had good visits with C. and tried to make them memorable. He denied consuming any alcohol during his visits with C.. [ 54 ] On August 4, 2011 S.B.O., through counsel, notified M.J.H. that access would need to be supervised because of the concerns about his alcohol consumption when he was with C.. M.J.H. testified that a conflict arose between himself and S.B.O. when he wouldn’t agree to give up some of his access visits so that she could go on a family camping trip with C..

Letters between counsel were entered into evidence that demonstrate that this was an issue. S.B.O. maintained that the requirement for supervision had nothing to do with this issue around the camping trip – it was based on her concerns of M.J.H.’s ability to provide adequate care for C.. [ 55 ] The issue regarding supervision didn’t go any further because M.J.H. would not agree. S.B.O. did not hear from M.J.H. again about access until January of 2012. At the time of this hearing in March 2012, M.J.H. had not seen his son since the beginning of August 2011.

When asked why he didn’t take steps to address the alcohol concerns M.J.H. testified that he wasn’t going to jump through any more hoops – he had jumped through hoops with S.O. in order to see C. and he wasn’t going to do it again. He stated that the Order didn’t require supervised access, which is true. When asked whether it would have been better to address the issue, and better to see C. with a supervisor rather than not at all, he again stated that he was not going to jump through any more hoops. [ 56 ] M.J.H. drove to Ontario in mid-August 2011 for a marijuana show and then went to Russia after that.

He testified that he was in Russia for approximately three weeks at a time and then he would come back. He returned to Russia again in October and returned to Canada with his family on approximately October 24, 2011. [ 57 ] M.J.H. testified that while he was away in the fall of 2011 the only contact information he had for S.B.O. was her cell phone number. He called her on C.’s birthday as he wished to speak to him. He spoke to S.B.O. briefly and then she hung up the phone. He also said that he tried to call at Christmas time but couldn’t reach anyone.

S.B.O. denied that M.J.H. had made any calls to her cell phone during this time, other than the one call on C.’s birthday when she was at work. There was no evidence that he took any other steps to contact C. from August of 2011 until January 2012. [ 58 ] Both D.H. and T.H. stated that they have not seen C. during this period of time either. They did not try to contact S.B.O. because they were told by M.J.H that it was pointless as she was refusing him access. T.H. testified that they didn’t even know where C. was being held.

While this may have been the case for the 2 days after S.O.’s death, everyone knew where C. was after the interim order of May 18, 2011. [ 59 ] S.B.O. would have allowed visits with them if they had contacted her but agreed she did nothing to initiate the contact. She was however contacted by M.J.H’s father C.H. who lives on the mainland. The interim Order contains a clause that neither party is to remove C. from Vancouver Island so she hasn’t taken C. to see his grandfather yet. C.H. does call and speak to his grandson and also sent a gift for C.’s birthday and for Christmas.

S.B.O. testified that she likes M.J.H’s father and has no problem with him seeing C..

[60] Upon his return to Canada in 2011 M.J.H., S., her daughter and their infant son settled in Vernon. M.J.H. chose Vernonbecause it has a large Russian community and would be an easier transition for S. – her English at this point is very limited. As ofFebruary 2012 they have rented a large home there and M.J.H. has found work for a computer company doing liaison work betweenAsian and European software developers. He testified that he earns $4000 net per month and he is paid in cash. [61] He is now completely out of BC Bud Depot and has settled in Vernon with his new family, including C.’s half brother M.H..

He has work and earns a good income with the opportunity to earn more through his own software application development. They areconnected with the Russian community in Vernon and have support from friends they have met there, including F.I. who testified at thishearing. He has investigated the school the system in Vernon and lives close to what he feels is an excellent school for his children. [62] S.B.O. testified that C. is doing very well in her care and that he and her son N.O. consider each other to be brothers. Despitethe age difference they were in the same kindergarten class last year.

She decided to have N.O. repeat kindergarten because he was oneof the youngest in his class, and this also allowed C. and N.O. to attend together, as C. would only go if N.O. was there. A letter fromC.’s teacher, Ms. B. was entered as Exhibit 1 Tab 6. She describes C. as a well-adjusted and happy child who participates well in allactivities. Ms. B. also commented on S.B.O.’s participation in school activities and that she provides C. with the love and stability thathe needs. S.B.O. testified that she did not ask for this letter, it was provided to her by Ms.

B. unsolicited. [63] A.B. and S.B.O. share parenting responsibilities for N.O. and C.. They also have a lot of family in the Duncan area that theysee often and they provide additional support. C.’s grandmother, F.C. changed her work shift so that she can pick N.O and C. up afterschool. [64] Both B.M. and F.C. testified as to the close bond between S.B.O. and C. and about how well he is doing in her care. Theyconfirmed the frequent visits between C. and his extended maternal family.

Analysis [65] Normally, a Judge is required to determine the best interests of the child as it relates to custody or access as between twobiological parents. Tragically, that is not the case here. Counsel provided me with case law where courts have considered the fact thatone of the parties applying for custody is not a biological parent. It is clear from those cases that the over riding consideration remainswhat is in the best interests of the child. However the courts recognize the fact that one party is the biological parent is a significantfactor and entitled to serious consideration [King v.

Low, (SCC), [1985] 1 S.C.R. 87at paragraph 27]. [66] At the same time, the fact that one party is a biological parent does not trump all other factors. As was said by Judge Woodsin W (W.M.) v. W.(J.) 2011 BCPC 360 at paragraph 22: I see nothing in King v.

Low or any of the other authorities placed before my Mr.McGregor that is capable of persuading me that thatbiological lineage linking a party to the subject child in an FRA custody and guardianship proceeding, once proven, deposits a “superfact” onto that party’s side of the scales of justice, requiring the opposing parties (who cannot invoke biological lineage) to marshal, inorder to meet and offset the probative force of that “super fact”, proof of other weighty facts that so impugn the parenting capacity andother qualities of the natural parent that the court is forced to the conclusion that placement with the natural parent would put the subjectchild in peril.

King v. Low says not more on this point than that biological lineage is an important fact that must be considered seriouslybut that where other facts prove that the child’s best interests require it, the custody and guardianship claims of the biological parentsmust fail. [67] There are cases in which custody has been awarded to the biological parent even where that parent was absent from thechild’s life for periods of time. In other cases custody has been awarded to a non biological party. The determination of custody dependson the facts of each case. A careful analysis of the factors set out in

section 24 is required to determine what is in the best interests of C.in this case, always keeping in mind that M.J.H is his biological father. (

a) The health and emotional well being of the child including any special needs for care and treatment [68] S.B.O. has amply demonstrated that she is able to provide for the health and emotional well being of C.. She has been aconstant part of his life. Upon the death of his mother, S.B.O. sought professional help on how to tell C. and on how to assist himthrough the grieving process. She recognized the need for consistency in his care and made special arrangements for C. to be able toattend kindergarten with her son N.O. She has clearly put C.’s needs first during this traumatic time in his life.

I have no doubt that shecan continue to provide for his emotional needs in the face of the loss of his mother. [69] The evidence with respect to M.J.H. is not as favourable. He has been an inconsistent part of M.J.H’s life, largely as a resultof his work outside of the country. I realize that he is at somewhat of a disadvantage in that he has not be given the same opportunity asS.B.O. to demonstrate that he can provide for the health and emotional needs of C. as she was given custody after S.O.’s death.

However, he has not acted in a manner that provides for C.’s health and emotional needs since S.O.’s death. [70] The loss of his mother is likely to be one of the most traumatic experiences of C.’s life. M.J.H. did not seek any professionalhelp to assist C. with this. He saw C. for about a month in May and June and then left the country for three weeks. I am satisfied that hedid not tell S.B.O. that he was leaving.

Although M.J.H. had legitimate reasons for going to Russia, he had new born son, he should havetold S.B.O. so that she could properly assist C. with this change as he was already struggling with abandonment issues at this time. M.J.H. made no effort to call his son during this time, ignoring the needs of C.. [71] When S.B.O. advised M.J.H. that access needed to be supervised because he was drinking during the visits, M.J.H refused,and he hasn’t seen C. since August of 2011. He refused to “jump through hoops” to see his son.

I find this to be a completely self-centred attitude and ignored the emotional needs of C.. C. had just lost his mother, his whole world had changed. Rather than becominga stabilizing presence in C.’s life, M.J.H. left.

[ 72 ] Even if the allegations about his drinking were false, he should have done whatever it took to see C., whether that was supervised access or coming back to court. Instead he left. As much as would like to blame S.B.O. for this, the fact remains that M.J.H. abandoned C. when he needed him most. I accept the testimony of M.J.H. that he telephoned S.B.O. on C.’s birthday – she confirmed this. She was at work at the time and C. wasn’t with her. M.J.H. didn’t call back. He didn’t send a card, or a gift.

I do not accept his evidence that he tried calling at Christmas time as the only number he had for S.B.O. was her cell phone and she testified that she always has it on, and it would show if he had tried to call. Again, he didn’t send a card or any gifts for C..

He made no contact with S.B.O. about seeing C. from August of 2011 until January 2012. [ 73 ] While M.J.H. had legitimate reasons for being away during part of this time, getting his family to Canada, he made no effort other than the birthday call to speak to C. while he was away nor did he try to see him when he returned to Canada at the end of October 2011.

Even if he disagreed with supervised access his failure to call his son while he was away is indicative that he did not have C.’s well-being in mind. [ 74 ] This self-centred attitude at the expense of C. is also demonstrated by M.J.H.’s choice of where to live. He chose to settle in Vernon even though he has no ties whatsoever to that area. The reason he provided was that it has a large Russian community which would be beneficial to his new wife and her daughter. This decision completely ignores the needs of C..

As M.J.H. is applying for custody, this would mean C. leaving the people he is closest to and moving to a strange city, living with people he doesn’t know and going to a new school. It demonstrates a lack of consideration on M.J.H.’s part for the need for consistency in C.’s life and the need to provide for his emotional well being. He could have settled anywhere on Vancouver Island and been closer to the people that have been part of C.’s life since he was born but he chose Vernon instead. [ 75 ] I also consider M.J.H.’s drinking and violence under this heading.

He was convicted of assaulting S.O. and I accept the evidence of S.B.O., A.B. and B.M. that there were other instances of violence against S.O. while C. was present. I am further satisfied that M.J.H. drank when he had C. in his care in the summer of 2011 contrary to the interim Order to the point where he was intoxicated on two occasions. His alcohol abuse and history of violence impacts my assessment of his ability to provide for C.’s health and emotional well being. I am not concerned that he would harm C. physically, but C. has been exposed to violence and alcohol abuse while in his care. (

b) Views of the Child [ 76 ] Given C.’s age his views are not relevant. I place no weight on the fact that C. no longer asks about his father. He has not seen him for nine months. It does not mean that he no longer loves his father. (

c) The love, affection and similar ties that exist between the child and other persons [ 77 ] Despite absences from C.’s life, including over the last nine months, I have no doubt that C. loves his father and that M.J.H. loves his son. Whatever the problems were with access prior to S.O.’s death, M.J.H. demonstrated that he loved C. and wanted to be a part of his life. [ 78 ] M.J.H. now has a new wife, a step-daughter and a son, C.’s half brother.

C. hasn’t met them yet so there are obviously no ties between him and M.J.H.’s new family. [ 79 ] C. spent limited time with M.J.H.’s extended family including his mother and his brother T.H.. I accept that there is love and affection for C. and those relationships can develop over time with contact. Neither M.J.H.’s mother or brother attempted to contact S.B.O. to see C. over the last nine months.

M.J.H.’s father C.H. does enjoy an ongoing relationship with C. and he did contact S.B.O. after S.O.’s death to maintain his relationship with his grandson. [ 80 ] I have no doubt that C. loves S.B.O., A.B. and their son N.O. They obviously love him. They have been involved in his life since birth with S.B.O. seeing him several times a week when he lived with his mother. C. is also very close to his extended maternal family, seeing them at least weekly. These bonds have been in place since he was born.

S.B.O. and her family are very close, living in close proximity to one another and spending significant amounts of time together. [ 81 ] As a result of M.J.H. being out of the country for long periods over the course of C.’s life coupled with the close relationship between S.O. and S.B.O., I find that the bond between S.B.O. and C. is just as strong, if not stronger than between C. and his father. There is no question that C. is closer to S.B.O.’s side of his family, and this has been the case long before his mother died.

C. spent all his birthdays, Christmas holidays, Halloween and Easter with S.B.O. and N.O and other members of the O. family. M.J.H. wasn’t present for any of C.’s birthdays or Christmas holidays. (

d) Education and Training for the child [ 82 ] M.J.H. testified that he is in a better position to provide for C.’s academic future for a number of reasons: He has a college degree; he himself is successful; his parents are professionals; and S.B.O. only has a high school education and is either on welfare or disability. The first three factors are irrelevant and the last is simply not true. S.B.O. has never been on welfare or disability. She has a career as an insurance agent and she her partner earn very good wages. [ 83 ] With respect to this factor I find the parties to be on equal footing.

They both value education and have the ability to provide financially for C.’s educational needs. C. is doing very well in kindergarten while in S.B.O.’s care as evidenced by the letter from his teacher. (

e) The capacity of each person to whom guardianship, custody and access rights and duties may be granted to exercise those rights and duties adequately [ 84 ] I don’t have any concerns that if granted custody or guardianship that either M.J.H. or S.B.O. would have any difficulty exercising those rights. The main issue addressed by this factor is the ability of the party who has custody to ensure that other parties

who have rights of access are able to exercise those rights. Here there are problems on both sides. [ 85 ] M.J.H. does not like S.B.O. or the entire O. family. He made very disparaging and false comments about her and her family. If granted custody of C. I have concerns about his willingness to ensure that any access rights granted to S.B.O. would be respected. The fact that M.J.H. chose to live in Vernon B.C. demonstrates that he places little value on C.’s relationship with members of the O. family.

S.B.O. and her mother testified that they are both concerned that if M.J.H. is granted custody that they will never see C. again. There is some basis to their fear given M.J.H’s history of living outside of the country but there is no evidence that M.J.H would leave the country with C. if he is awarded custody. [ 86 ] S.B.O. testified that she does not like M.J.H.. She did however work with him to ensure his access to C. after S.O.’s death. She was flexible in terms of arranging the access at M.J.H.’s convenience and it continued until she felt it was unsafe due to his drinking.

She admitted that she did not contact any of M.J.H.’s family members about seeing C. since the interim Order granting her custody, nor did they try to contact her. She was however contacted by M.J.H.’s father and she welcomed his continued relationship with C.. [ 87 ] The animosity between the parties raises concerns about both in terms of ensuring any rights of access are respected but based on all of the evidence this factor favours S.B.O.. She has demonstrated her ability to put her feelings for M.J.H. aside in the best interests of C..

The same cannot be said about M.J.H. and his remarks about S.B.O. and her family, and his decision to live in Vernon is indicative of this. Conclusion [ 88 ] After a careful consideration of all of the factors set out in

section 24 of the FRA along with the relevant case law, I have no hesitation in finding that it is in the best interests of C. for custody to be awarded to S.B.O.. The fact that M.J.H. is the biological father does not change this. He has been absent for at least half of C.’s life, most of this voluntarily as he chose to work in Europe. S.B.O. has been consistently in his life since birth.

Most importantly she has demonstrated that she is aware of C.’s emotional needs and has made sacrifices to make sure that these are met. [ 89 ] M.J.H. has not demonstrated an appreciation of his son’s needs and his actions since S.O.’s death have been self-centred and detrimental to C.. In particular, his abandonment of C. in August of 2011 because he refused to “jump through hoops” in order to see his son, showed a complete disregard for C. when he needed his father the most. His conduct in this regard far outweighs any biological tie to C..

M.J.H.’s choice to settle in Vernon rather than on Vancouver Island also shows a further disregard for C.’s needs. M.J.H. has repeatedly acted in a manner that has the potential to negatively impact C.’s development. [ 90 ] S.B.O. shall have sole custody of C.. Due to the inability of M.J.H. to act in the best interests of his son and his animosity towards S.B.O., I also award sole guardianship of C. to S.B.O..

It is completely unrealistic to think that these parties can work together regarding significant decisions about C.’s upbringing. [ 91 ] M.J.H. will always be C.’s father and that relationship is an important one. I will make an order for access after hearing further from the parties. This issue has become complicated because of the length of time that has passed since M.J.H. has seen C. and there needs to be a gradual and structured re-introduction but I will hear further from counsel before making that order and also an order for child support. _____________________ S. Wishart Provincial Court Judge