IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
D.M.H. v. D.B.C., |
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2017 BCSC 1065 |
Date: 20170623
Docket: E045655
Registry: New Westminster
Between:
D.M.H.
Claimant
And
D.B.C.
Respondent
Before: The Honourable Mr. Justice N. Brown
Reasons for Judgment
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Counsel for the Claimant: |
R.L. Taylor |
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Counsel for the Respondent: |
D.R. Greig |
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Places and Dates of Trial/Hearing: |
New Westminster, B.C. February 14-17, 2017 Chilliwack, B.C. May 4, 2017 |
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Place and Date of Judgment: |
New Westminster, B.C. June 23, 2017 |
[1] The claimant, Ms. D.M.H., is the biological mother of the child, K., born [D.O.B.] 2009. The respondent, Mr. D.B.C., is the boy's biological father. The respondent resides with the child in Alberta and has done so since December 2013.
[2] The claimant seeks an order that K. be returned to British Columbia to live with her; her common-law husband, Mr. H.; and her three other children.
[3] The parties have appeared several times in chambers. On February 28, 2014, Master Caldwell ordered the claimant to obtain and deliver all medical records pertaining to child to the court, and to the respondent's counsel at the time. He also ordered that the claimant would have parenting time with the child daily via Skype, each evening from 7:00 p.m. to 8:00 p.m. Mountain Standard Time. At that time, the claimant had been seeking orders for return of K. in B.C. The respondent, on the other hand, had sought an order that the child reside with him in Alberta, pending counselling or therapy, to determine whether K. had been sexually abused by the claimant's husband, Mr. H.
[4] At para. 4 of his March 12, 2014 reasons (D.M.H. v. D.B.C., 2014 BCSC 411), Master Caldwell noted that the respondent, at that point, was in a marriage-like relationship [with Ms. K.K.] and that they were living in Alberta. Ms. K.K.’s two children were also with them.
[5] At para. 5, Master Caldwell concluded:
[5] I am satisfied from the materials filed and the submissions of counsel that the claimant was clearly the primary, if not sole, parent in K.’s life and that the respondent had very limited contact with K. due to his abuse of alcohol. I am satisfied that the respondent’s involvement with K. was greater than that alleged by the claimant but less than that alleged by the respondent.
[6] At para. 8, Master Caldwell said this on the claimant’s concerns about sexual abuse at that time:
[8] It is clear that there was discussion between the parties concerning the possibility that the tearing might be the result of sexual abuse but the evidence of the claimant is that Dr. Wong had advised that the tearing was from the inside due to the pressure of bowel movements, not from outside as would be seen from sexual abuse. While that assertion does not appear in Dr. Wong’s notes it is not disputed and is consistent with later commentary.
[7] At para. 9, Master Caldwell noted that the respondent had alleged that “once K. had arrived into his care he began to make disclosures of sexual abuse by Mr. H.” Master Caldwell noted there were "certainly inconsistencies and difficulties with the allegations."
[8] At para. 12, Master Caldwell noted at that time that K. had been “examined at the Stollery Children's Hospital in Edmonton”; and that after being x-rayed, “constipation was confirmed”, but “an anal examination revealed no tearing”. He also noted that “K. was taken to the police in Alberta but only the respondent and [his wife, Ms. K.K.] were interviewed” at that time.
[9] At para. 13, the Master noted that when K. was interviewed the following day by Langley RCMP, K. did not disclose anything of concern to the police and no further action was undertaken at the time.
[10] As noted by the Master at para. 14, the respondent also had contacted representatives of the Ministry of Children and Family Development ("MCFD"), following which a social worker, Darcy Bannister, undertook an investigation. An interview was scheduled for January 7, 2014, but did not occur because the respondent had returned to Alberta with K. and did not attend the interview.
[11] At para. 16, the Master noted that on February 3, 2014, the social worker “provided written confirmation … the investigation [had] determined that the allegations of sexual abuse could not be substantiated." Master Caldwell also noted that it had been “determined during the investigation … there [were] no concerns preventing K. from returning to his mother's care and the family home”, noting what a social worker, had confirmed:
My investigation determined that the allegations of sexual abuse could not be substantiated. Therefore the safety plan is no longer required and your husband [Mr. H.] can return to the family home. My investigation also determined that there are no concerns preventing K. from returning to the family home.
[12] At paras. 18 and 19, Master Caldwell noted that Mr. H. had some history of sexual intercourse at age 13 with his then 12-year-old sister. (I note that given the ages at that time, that would not have been a criminal offence.) Master Caldwell concluded, anyway, at para. 20 that he was satisfied the MCFD, the social worker, Ms. Bannister, in particular, had that historical information while the investigation was being undertaken and the conclusions and recommendations were being formed.
[13] At para. 21, Master Caldwell concluded as follows:
[21] In all of the circumstances, I am of the view that K.’s best interests are served by returning him to the care of the claimant forthwith and I so order. K. has spent his entire life in the care of the claimant; he has resided in the Lower Mainland for his whole life thus far and has an established family and social network here. The status quo clearly establishes that his residence has been here with the claimant. The evidence as presented does not establish that K. is at risk if the status quo is retained pending trial. The orders will go in the terms sought by the claimant in paras. 1-4 of her Notice of Application.
[14] At para. 22, the Master attached conditions to the return of K. to the claimant in light of the concerns raised regarding Mr. H. The Master ordered that Mr. H. was to vacate the family home and to have no direct contact with K., except as directly supervised by and in the direct presence of the claimant. He then made the order for indirect contact by Skype.
[15] Master Caldwell's conclusions are not binding on me, but they put the present controversies in some historical perspective.
[16] The March 12, 2014 order of Master Caldwell was varied on March 17, 2014 by Mr. Justice Myers, who ordered Mr. H. be restrained from directly or indirectly communicating with the child, whether supervised or not. Following that order, on the application of the respondent, Justice Myers having determined a hearing and notice were not required, ordered on March 19, 2014, on an interim basis, as follows:
1. On an interim basis, the provisions of the Order of Master Caldwell made March 12, 2014, relating to the return of the child, [K.], born [D.O.B.] 2009, to the care of his mother, the Claimant [Ms. D.M.H.], be suspended.
2. On an interim basis, the child, [K.], … be returned to the care of the Respondent, [Mr. D.B.C.].
3. For the purposes of locating and apprehending the Child, a police officer may enter and search any place or premises where he or she believes the Child to be.
4. The Respondent is at liberty to leave the Province with the Child on or after March 22, 2014;
5. The Claimant may have parenting time with the Child in Alberta and British Columbia as to be agreed between the parties.
6. Liberty to claimant to apply to vary this order on 48 hours notice.
[17] On April 16, 2015, following a Judicial Case Conference (“JCC”) before Justice Joyce with Ms. D. Montgomery, acting on behalf of the claimant and Mr. D.R. Greig, acting for the respondent, and in the presence of the parties, the following orders were made:
1. By Consent. The Order of Justice Myers made March 19, 2014, shall continue except as varied herein;
2. By Consent. The Respondent … shall bring the infant child … to the Lower Mainland region of British Columbia for parenting time with the Claimant, as follows:
(a) on or about May 16th, 2015, for an occasion when the parties shall (together) attend with the child at a park or other amusement area as may be agreed between them;
(b) on May 17, 2015, for parenting time between the infant child and the Claimant at the Claimant's place of residence, for four hours, on the further term and condition that the Claimant's husband shall not be present during that visit;
(c) at such other times as may be agreed;
3. By Consent. The Respondent … shall return with the child to the Lower Mainland, for another “weekend visit" during the last week of July or the first two weeks of August, on such terms and conditions as counsel may agree.
[18] Justice Joyce further confirmed by consent that the matter was to be “set for trial for 5 days commencing March 14, 2016”.
[19] On the application of the claimant, Justice Bernard ordered by consent on December 7, 2015, that:
1) The relief sought in the Claimant’s Notice of Application filed November 10, 2015 is dismissed.
2) BY CONSENT, the Respondent will bring the Child to the Lower Mainland of British Columbia on or before March 31, 2016, so that the Child can have parenting time with the Claimant.
3) BY CONSENT, the Claimant will have Skype time with the Child on December 25, 2015 starting at 6:00 p.m. Mountain Standard Time.
THE PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT.
[20] Again on the application of the claimant, Master Taylor ordered May 27, 2016, that “[t]he Claimant may attend the Child's birthday party in Edmonton, Alberta … so long as her husband, [Mr. H.], is not in attendance.” The order was signed by counsel for the claimant and counsel for respondent.
[21] The claimant, Ms. D.M.H., presented as a pleasant, self-confident person. She was polite and fairly straightforward most of the time in her testimony, but sometimes vague or off-hand in her answers. I accepted considerable portions of her testimony but found some portions of her testimony, such as her claim that the respondent had been unreasonably denying her access to K. since December 2013, lacking in credibility.
[22] The claimant’s education went as far as grade 12. She started some post-secondary training, but dropped out due to ill health. Since October 2016, she has worked in a department store in the photography department. She works on Mondays and, for two of the seven days of the week, works an additional four hours in what is essentially a casual on-call position. She has previously worked as a photographer and as a delivery person.
[23] The claimant has four children: K.A., age 12; K., age 7; and twin baby girls. She lives with the children and her husband, Mr. H., in a subsidized condo rental apartment. They have lived there for 7½ years, since K. was three months of age.
[24] Mr. H. has been employed by the maintenance department of a wholesale warehouse for three years.
[25] The claimant met the respondent about seven years before K.'s birth. They did not form a relationship at that time. K. was born after what the claimant characterized as “a one-night stand”. She was happy with the pregnancy, but testified the respondent wanted her to have an abortion. She explained further that she had cervical cancer at the time and understood that if she were to undergo an abortion she would never be able to become pregnant again.
[26] The claimant stated that the respondent was living with his mother at the time. She did not know his occupation then.
[27] The claimant testified the respondent abused alcohol. She testified she wanted him to be stable for at least one year, and to stop drinking before he could have parenting time with K. She recalled that between 2009 and 2010, the respondent saw K., as a baby, approximately 10 times. The claimant advised the MCFD that the respondent had no involvement in K.’s life when he was an infant, contrary to the testimony of the respondent and Ms. A.S. (a babysitter), but then acknowledged her own assertion was untrue.
[28] The claimant testified she had acknowledged the respondent as K.'s father at all times; but referred both to Mr. H. and the respondent as “his daddies”. She referred to one as “Daddy [B.]”; and the other, “Daddy [D.]”. She testified she wanted K. to know he “had extra love because he had two dads”.
[29] In 2013, between the end of October and the beginning of November, she testified the respondent satisfied her that he had met her requirements for stability and responsibility so that, in December 2013, arrangements were made for the respondent to see K. The respondent, however, testified he quit drinking without any prompting from the claimant because he thought it had held him back and he did not want it to affect his life anymore. He also insisted he saw K. quite regularly during that period, contrary to what the claimant said.
[30] In about September or October 2013, the claimant discovered that K. had a serious constipation problem that resulted in anal tears. She took him to a clinic to have that attended to. She purchased some medication, and was prescribed a type of cream that she and Mr. H. administered to his anus. The concerns about constipation lasted until after K. moved to Alberta, when they came to an end. She testified that she sent the prescription for the problem to the respondent so he could administer it in Edmonton, presumably. A series of Facebook messages between them on December 18, 2013, documents some of the information exchanged between the parties. Clinical records between October 28, 2013 and March 3, 2014 document K.’s treatment; in some instances, related to his constipation problems.
[31] After K. was taken to Alberta, the respondent took him for an assessment at Children's Hospital. The claimant testified this was what the respondent had told her, but complained that he never provided her with documentation to confirm nothing was wrong with the child with the exception of constipation problems.
[32] About that time, the claimant testified that she received a call from the RCMP, which, at the end of the conversation, had made her cry. She sought legal advice; and in due course, started a family claim to secure K.'s return to her care.
[33] There is no need to address all the subjects raised on cross-examination. The overarching purpose of which was to confirm a history of bad decision making that, in at least one instance, put her children at risk and questions the claimant’s capacity to put the needs of the children first; referring to a drug overdose of her child, K.A., in 2012, that led to a court appearance arranged by the MCFD.
[34] On April 12, 2012, the claimant appeared before Judge Hamilton of the Provincial Court of B.C.
[35] This appearance became necessary after the claimant's oldest child, K.A., drank a drug known as “GHB” (gamma hydroxybutyrate), commonly known as “the date-rape drug.” It had been mixed by a “Mr. Z.T.”, who was living with the claimant, Mr. H., and the children. At the time of the incident, Mr. H. was at work and the claimant was sleeping on the couch. K.A. evidently saw a glass containing GHB on the counter and consumed it. Without going into details of the sequence of events, suffice to say when the claimant woke up after having fallen asleep for an hour or so, and looking in on K.A. in her bedroom, she found her unconscious, with vomit around her mouth. The child had to undergo Emergency care to save her life, however she recovered well.
[36] The claimant regarded Mr. Z.T., the source of the drug, as “a brother”, although not biologically related and could not bring herself to send him away. Her mother had taken him into her home when he was about 16, the claimant’s age then, too, because he had no other place to go. He and the claimant had used drugs together when they were teenagers. She became addicted to crystal methamphetamine herself. When K.A. overdosed in 2012, the claimant knew Mr. Z.T. had a serious drug addiction problem.
[37] In any case, it was this incident in particular that led to the said hearing.
[38] The court first ordered that the children: K.A., and the child in this case, K., were to remain in the custody of the claimant and under the supervision of the Director for three months expiring on July 12, 2012; on the nine conditions set by Judge Hamilton. Condition #9, in particular, required the claimant to ensure at all times the safe and appropriate supervision of the children, with a proviso that failure on her part to comply with any of the said conditions would result in the removal of the children.
[39] An MCFD entry made May 12, 2012, referenced the claimant bragging about partying, spending time with drug users, etc.
[40] The court was shown a long series of rather blurry October 2012 (about) photographs that still manage to reveal disarray, piled dishes undone, things scattered about, Clorox bottles, some razors, cleaning products, unsanitary conditions, etc., which the claimant partly blamed on Mr. Z.T. The photos were taken by the RCMP. In June 2012, after K.A.’s overdose, both Mr. Z.T. and Mr. H. were ordered out of the residence by the MCFD.
[41] The claimant cleaned up the unit before the MCFD took additional photos.
[42] It would go beyond the evidence to infer from this that the unit was constantly in such as state. That granted, it is concerning, nonetheless, the state of the home was allowed to descend to that level of disarray around the time of K.A.’s overdose and that the children had been left unsupervised in those circumstances.
[43] In her testimony, the claimant seemed proud of “doing the right thing” in not ordering Z.T. out; thus maintaining her fidelity to him, who she had permitted to live with her and the children, notwithstanding his serious drug addiction. Ultimately, leaving the impression of placing more importance in a passing exhibition of loyalty than to ensuring the complete safety of the children.
[44] In August 21, 2012, K.A.’s paediatrician wrote a letter to an Andrea Dixon, an MCFD worker, complaining about the claimant’s chronic patterns of no shows for appointments and her refusal to settle an account owed.
[45] By age 21, the claimant had overcome her crystal meth addiction. After that, K.A., her first child was born. K.A.’s father had no contact with her. The respondent put forward the history of the claimant then moving with K.A. into a White Rock residence occupied by seven men; an unsuitable arrangement. The MCFD stepped in and required the claimant to move out within 24 hours to another residence. On cross-examination, the claimant agreed that the MCFD had shown her the arrangement was not a safe one for the child. She pointed out however, that she followed their directions, did the right thing, and had learned from it.
[46] The respondent also cross-examined the claimant on her relationship with Mr. H.; and on what little she knew of his history, which included undisclosed alcohol abuse and an adolescent incident of sexual intercourse with his twelve-year-old, schizophrenic sister. (He was only a couple of years older and given the law at that time, this likely would not have constituted a criminal offence).
[47] The plaintiff used marihuana daily to combat depression and anxiety; and before bed, to put her to sleep. There is no evidence of a diagnosis for either depression or anxiety. Her long-standing family physician diagnosed a form of ADHD, for which he prescribed “Ritalin” an anti-psychotic. The claimant did not follow through on that prescription preferring marihuana; use of which her doctor does not support to treat her condition.
[48] The claimant relied on a document entitled “Medical Cannabis Document” with the name of a Kelowna Health Care practitioner noted on it. The quantity prescribed is 5 grams daily, limited to a six-month period. On the claimant's testimony, the claimant’s use well exceeds that. The claimant testified she has never exceeded 5 grams but granted the frequency of her usage had gone up. She now smokes it five to six times daily, saying she never exceeds the 5 grams, breaking it into pieces to “get the anxiety down.” She smokes a joint before bed to help her sleep, as well as during the day. She denied smoking in the house, stating she smokes on the patio, while she looks through the patio door window to watch the children.
[49] Mr. H. earns about $24,000 annually; and the claimant, about $7,000 annually. Despite a money shortage, the claimant spends about $160 to $200 monthly on marihuana. Mr. H. has a similarly expensive tobacco habit, but he rolls his own cigarettes to minimize the cost. She and Mr. H. have leased a 2016 Dodge van for which they pay $565 monthly, bringing their total monthly basic expenses to $1,100 monthly. On redirect examination, Mr. H. clarified that the 2016 Dodge van was required because the children had to be driven at times.
[50] Part of the relevance of the resulting strained finances, as the respondent sees it, is the claimant’s having posited a lack of money as a reason for her not visiting K. in Alberta more often, despite the respondent’s offer to cover the travel costs; and for failing to maintain a regular Skype schedule. In that regard, the claimant said she found it frustrating reaching her son, partly because of the costs, and sometimes felt “shuffled”. However, it was pointed out that none of the affidavits she had previously sworn (after Myers J.’s order) contain any complaint about her access being blocked. The Kudo records show several weeks passing without any attempts by her to Skype. The claimant testified further on cross-examination that the gaps were not deliberate, “there were many reasons, stuff happened; sometimes I got a call back.”
[51] The respondent also raised the question of marihuana use during the claimant’s pregnancies and to the present. The claimant admitted in her testimony that she had smoked marihuana through all three of her pregnancies, including the one that saw her eventually give birth to twins. She said she was not concerned about it because she had read on the Internet that inhaled marihuana is not transmitted and is not harmful to the fetus. Dr. Wong was strongly opposed to the claimant smoking marihuana while pregnant.
[52] Ms. A.S. knows both parties. She manages a gas station and has a fiancé. She has known the respondent for 27 years; the claimant, 16 years. She testified that she recalled the respondent’s positive reaction when he found out he was going to be a father. She denied any discussion about the respondent not being able to babysit K. until he curbed his drinking for one year. Ms. A.S. has seen the respondent and K. several times since 2013-2014, after the move to Alberta. When the respondent visits with Ms. K.K., his partner, Ms. A.S. sees K. along with his family attending barbecues and stops by. Ms. A.S. described the bond between K. and the respondent as “amazing”, saying, he “loves dad”, and “everything is about dad”. She noted K. is very well behaved, age appropriate. From her observations, K. looks on Ms. K.K. like a mom, cuddles, etc. She further recalled that when the B.C. visits occur, a few times a year, K. is almost always there unless he is with the claimant. She has not spoken to the claimant for some time, simply because she has moved on in her friendships. She recalled babysitting K. a few years ago for the claimant to go out, the claimant not returning until the next morning, the house not being in good condition, and what seemed to be a shortage of food. She recalled the last time they “hung out” was about six or seven years ago.
[53] Ms. K.K. and the respondent had started dating when the claimant was near the end of her pregnancy. She recalled the respondent had the baby over at his place most days, sometimes overnight. A “wonderful baby”, she recalled. She was on friendly terms with the claimant and recalled babysitting for her about five or six times, roughly. Sometimes she took groceries over. When she was there, she noticed disarray and a shortage of food.
[54] The claimant called Ms. N.V. as a witness. Ms. N.V. is 36 years of age and works as a bookkeeper. She has known the claimant for 17 years. She usually sees the claimant a few days a month. She was the claimant’s maid of honour. She knows the children. In her opinion, both Mr. H. and the claimant are wonderful parents, the children well taken care of, having what they need. As for discipline, she said she had not seen any pornography or any consumption of alcohol while she has been present in the home.
[55] Ms. N.V. noted they both used hard drugs in their early 20s. Both then quit using drugs, the claimant first. She stated that she lived with Mr. Z.T. for two years, when K. was an infant. The claimant told her she uses marihuana to sleep at night. Ms. N.V. stated that she does not smoke when the children are there.
[56] Mr. H. testified. He presented as a quiet person, hesitant in speech, somewhat dejected. He had difficulty with his memory, not surprising as the events he was asked about occurred four years ago. He always found testifying very difficult.
[57] Mr. H. met K. when K. was an infant. He stated that, over time, they bonded well. K. called him “Dad”. Mr. Z.T. was not there initially. When interviewed by the MCFD, the adolescent sexual contact with his younger sister in 2013 came up. The RCMP did not proceed with any charges. The social worker asked him to inform the claimant about it and to attend counselling; which he did in 2012, for six months. As a result, he stopped drinking. He stayed away from the claimant’s residence as directed for about a year and then returned; deemed not to pose a threat. With respect to the sexual contact with his sister, he attended counselling. He said it happened only one time and there was no violence involved. He testified she consented. It occurred in August 2013.
[58] Mr. H. met the respondent twice before the move to Alberta. He recalled the interaction as fine. He recalled the respondent was there for K.’s second birthday and to bring Christmas presents.
[59] The twins are now 17-months-old. Mr. H. cooks for the family.
[60] As for K., some nights Mr. H. tucked him into bed.
[61] Asked about K.’s constipation problems, Mr. H. stated after it became a problem, the claimant took K. to see the doctor. He understood K. had a small tear in his anus for which he was prescribed an ointment to apply to his bottom. If the claimant was there to apply it, she would; if not, he would put the prescribed cream on. He recalled that every time K. went to the toilet either he or the claimant had to go with him. It was hard for him to go, Mr. H. said; he would cry. Mr. H. did his best to comfort him in that situation. All he could do was to try to calm him down. He denied ever touching him in a sexual way. He testified he was interviewed twice by social workers, twice by the RCMP, and underwent a lie detector test. He knew nothing about the allegations until he spoke to the RCMP.
[62] Mr. H. stated the last time he saw K. was when he carried him out to the car. He said he loved him and said goodbye. He has not seen K. since then, except on Skype.
[63] Asked about his reaction after learning of the allegations, Mr. H. stated he was at the gym and walked home crying. He contacted the RCMP and was advised the file not been readied yet. He recalled the first interview with a Cst. Gill and finding out he could not return home. He went instead to his mother’s home where he helped pay the rent. He cannot recall how long he stayed there. He denied watching pornography. He confirmed they have an iPad at home, but it had child protection settings. He stated they watched YouTube cartoons and monster trucks.
[64] Mr. H. stated he treated K. as if he was his own child.
[65] Asked about his use of alcohol, Mr. H. denied it created any problems, stating he was not a drunk but did drink vodka daily. He agreed the claimant accused him of lying about how much he was drinking and he agreed he had kept it from her. He did not see the need to inform her about what happened with his sister; but as the MCFD had decided he needed counselling, he followed that course.
[66] On cross-examination, the respondent confirmed he was 19 years of age when he met the claimant.
[67] On housekeeping in their unit, he agreed it did look as depicted in the photographs in 2012. He said it was not like that all the time, though it sometimes got messy.
[68] Ms. K.K. is the common-law spouse of the respondent. She has two children of her own from a previous marriage: “B.”, age 10; and “D.”, age 9. K. has been living with her and the respondent, as she recalls, since September 25, 2015. She first met the respondent in B.C. They started to date in February 2013. She first met K. one time in B.C.; and then at Christmas 2013, when he came to Alberta. She described his visit as a very successful one, with all of her nieces and nephews and her own children there. They enjoyed outdoor activities such as sleigh rides. She recalled that K. was there for about two weeks. At that time, he called his mother most nights before he went to sleep.
[69] Ms. K.K. told the court that on January 1, 2013, about four to five days into a trip to Alberta, K. said something to her that alarmed her.
[70] She recalled her daughter ran out of the bedroom stating that K. had said that he wished his dad were dead. She asked the children to leave because it was not appropriate for them to hear that or anything that followed. When Ms. K.K. asked why he said that, she recalled that K. said, "Because he is mean" and said he was referring to his dad in B.C. She was concerned that there might be some reason for him to feel that way. She recalled K. stated that he was mean to him and hurt his bum. She testified that K. went on to say that he makes him feel like he has to poop and that he put his fingers in his bum. He also stated something about playing on Mr. H.’s shoulders to take his hat off and then him getting mad and "making me feel bad".
[71] Ms. K.K. then told the respondent what she had heard from K.
[72] Asked whether she had any previous concerns prior to K’s statement, she pointed to his “freaking out whenever he had to go to the bathroom”. Whenever he had just the sensation of wanting to go, he would scream and stop himself from trying to poop, going so far as to clench his bum. She saw this firsthand, noting he would scream while sitting on the toilet, not wanting to go. She said that she would sit in the bathroom with him and comfort him.
[73] Meanwhile, while this was going on, she received a Facebook message from the claimant regarding her concerns about K’s problems going to the washroom.
[74] She and the respondent took K. to the Stollery Regional Children's Hospital in Edmonton.
[75] They gave him a laxative; a double dose compared to what the claimant had been giving him at home.
[76] Asked about any other behaviours, she recalled that he would punch himself in the head, and pulled at his throat so much that he developed rashes there.
[77] Asked about any peculiarities with respect to food, she stated that the only food he would not eat were pickles and did not like peppers. Otherwise, he would eat anything.
[78] She recalled another concern relating to K. talking about what he called "butt and booty movies." This came to light when they were returning to Alberta and K. was in the backseat of the car. He asked about "butt and booty movies”. When asked why he watched those he described naked girls and two men, one of them squeezing her boobs. He stated, only him and his dad, referring to Mr. H., and that his dad would then shut off his PlayStation.
[79] She also recalled that he was obsessed with girls in bathing suits. He was drawn to mannequins in stores and would lift up their dress, thinking it funny. She thought this very unusual for a four-year-old child in all her experience which included daycare. She had never seen or heard anything like it.
[80] After Justice Myers’ order made in March 2013 allowing the respondent to take K. back to Alberta with him, she recalled going to the claimant's residence to pick up K. When they arrived, present were K., Mr. H.’s sister, and K.A. She recalled K. and K.A. in the field adjacent, running around in the cold and rain. They went to the field to get K. She noticed that K.A. was wearing flip-flops and was not properly dressed. K.’s shoes were not done up property because the Velcro was missing. He had no socks on, his pants were too short, and he was wearing a T-shirt. She recalled he was crying. She hugged him and asked why he was sad, and he replied he had lost his kite.
[81] After Ms. K.K. and the respondent returned to Alberta, they enrolled K. in a nursery two blocks away from where they lived. She took him there because the respondent was working at the time. Asked about the relationship between K. and her children, she stated that they are "inseparable"; K. and D., especially.
[82] Questioned about what advantage the claimant took of Skype communication with the child that was available, Ms. K.K. testified that, in the beginning, the claimant went two to three weeks at a time without making any connection. She requested that he call about 7:00 to 8:00 o'clock Mountain Time because that was when the children were going to bed and the best time for the call. She testified that the claimant was never consistent in calling, except occasionally within the last nine-month period.
[83] In Alberta, K. was at first put in daycare and then in Kindergarten. When attending school, after 10 months of Kindergarten, he did very well. He was sociable, calling all his classmates his friends. Ms. K.K. felt that his stature was smaller than it ought to be at his age. However, the family has meals together, every day. The children do not leave the table until they are finished their dinner.
[84] In 2015, Kyle went to grade 1 and was doing very well. All the children's grades skyrocketed. However, his only problem at school was sitting still. He would not sit still in school.
[85] They do not have a family doctor but can regularly access a medical centre nearby. They see the same doctor whenever they go there. K. has no health problems, no dental problems, and his vision is good.
[86] She noted that K. did not have any teary times with respect to his mother, except when she left. He rarely asks to call his mother.
[87] Asked about K.A., K.'s sister, she described her as “a very sweet child”, and “talking all the time”. She loves her and they get along very well.
[88] She recalled going to the claimant's home for K.'s birthday. She recalled K.A. jumping up, happy to see her; and telling her that she did not have a card ready because they had to spend the previous two days cleaning house. She recalled the claimant yelling at K.A., at that point.
[89] She recalled that for Christmas 2014, the claimant had flown out to see K. and their having had a wonderful Christmas together. She recalled the claimant asking the respondent what would happen if she were to move to Alberta, and he stated that he would help if she chose to do so. She was told that she was welcome to come back for visits.
[90] Ms. K.K. recalled in October 2016, another visit occurred at their Alberta home. The claimant stayed at their home for about four days. From Ms. K.K.’s perception, she said that was the first time she could say that the claimant actually really engaged with K. to any significant extent.
[91] Ms. K.K. recalled a conversation she had with the claimant in which the claimant said that she wanted to have equally shared parenting time. Ms. K.K. had pointed out that given where they live it was not possible to have that kind of arrangement. She also discussed sharing holiday time, etc. She stated, however, that the claimant's husband's presence on those visits was a stumbling block.
[92] Asked about the respondent’s activities, she noted he is “super busy” at the moment.
[93] They have three dogs and one cat. Ms. K.K. stays home and looks after the children. She cooks meals every day. She does not drink or smoke. The respondent smokes but only outdoors. She stated that her own children are healthy.
[94] She recalled the respondent stopped drinking on December 18, 2012. She has known him since age 13, when he lived in B.C.
[95] With respect to the ointment used to be applied to K.'s bottom, she stated that the one that they had received from the claimant had expired; and that according to the advice of a pharmacist, the cream was the wrong kind.
[96] Ms. K.K. recalled their to return to B.C. to have K. questioned by police and MCFD social workers because that was where he had been living. When they arrived in B.C., they sought advice and obtained the protection order on March 17, 2014; and two days later, on March 19, 2014, another order permitting the respondent to take K. back to Alberta.
[97] On an October 2016 visit to Alberta, Ms. K.K. recalled the claimant had K. with her, alone most of the time; and that she had visited her relatives. They had a trip to the West Edmonton Mall where the respondent’s brother met her. Apart from that, the claimant was with four-year-old K.
[98] On other occasions Ms. K.K. was concerned about the claimant not keeping K. in sight and not holding onto him in circumstances where his safety required it.
[99] Recalling a 2015 summer visit that included a visit to White Rock Beach, Ms. K.K. recalled that the claimant smoked marihuana in public. K. was four years old on the visit and Ms. K.K. felt he should not be left alone unsupervised.
[100] Asked whether she and the respondent mentioned Mr. H. to K., Ms. K.K. recalled that they had not said anything about him since the middle of 2014. She recalled that for the first couple of months K. really seemed to miss Mr. H., but he never mentioned his mom.
[101] Asked about marihuana consumption, Ms. K.K. testified they will smoke it when the respondent comes home from being away at work, perhaps three to four times a week.
[102] The respondent is 33 years of age. He grew up in an older, nice neighbourhood. He worked as a framer for 13 years and became very capable in that work. He has always worked in the last five to six years; usually two weeks at a stretch, then returns home. He presented as a healthy, quietly well-spoken person whose demeanour did not reveal any particular animus, particular animus towards the claimant. He was a straightforward witness on both direct and cross-examination.
[103] His gross income in the last couple of years nets at approximately $37,000 (after taxes). He and Ms. K.K. plan to take over her deceased husband’s former house, after which they would no longer have to pay rent. He has known Ms. K.K. for about 10 or 11 years and has developed good bonds with her children.
[104] The respondent stated that recreation with the children, including K. includes: swimming, movies, and ice-skating, together and on their own. He stated the children get along very well and had been in his care since 2014. He stated K. was in grade 2 and made friends at school. He does not drive, as he has a suspension still in place related to an impairment conviction about eight months previous. He has not consumed alcohol since then.
[105] The respondent and Ms. K.K. come to the coast often, usually driving, about 10 times annually. They take the children with them. When the claimant comes with her children, he has covered the $1,500 cost for the round trip from Abbotsford. He has advised the claimant that she can come and visit anytime she wishes to do so. He stated that K. is sad when his mother leaves. He testified that he has literally begged her to come to visit and has offered to cover the cost of flights.
[106] Asked about previous difficulties with alcohol, the respondent denied a long period of no contact with K., as alleged by the claimant. He said that he went on a recovery program on his own volition and saw K. regularly; more so after he completed the program.
[107] Questioned on the disclosure heard by Ms. K.K., the respondent confirmed he became very upset when Ms. K.K. told him about the alleged sexual touching and that it was the stepfather that had done it. He then calmed down. He stated he had met Mr. H. on two previous occasions, only saying “hi”. On advice from social workers in Alberta, he and Ms. K.K. took K. to British Columbia for an interview with the MCFD.
[108] The respondent recalled, while returning to Alberta from B.C. in early 2014, K. talking about pornographic movies, his children also in the car. He recalled K. kept talking about “bum” movies.
[109] The respondent’s fears about sexual abuse were not put to rest by the investigations that had been conducted so he hired counsel, whose fees, he commented, he has been paying for the last three years.
[110] The respondent recalled that when he went to the claimant’s residence and gave her a copy of Myers J.’s order, with its 48-hour provision for the claimant to apply to set it aside, he recalled the claimant screaming. From that point forward, he did not hear anything further from her.
[111] The respondent denied holding a grudge against the claimant and stated that she is welcome to come to his home, pointing out that he goes out of his way to encourage and facilitate contact with the claimant, stating that in the three years K. has been with him she has made no effort to do so.
[112] The respondent expressed concerned about the claimant’s housing arrangements. When there, he noticed garbage everywhere. He saw it was not a nice part of town and not a good place for children.
[113] The respondent has extended family in Alberta: three aunts, three uncles, two grandparents and 10 cousins, with whom K. has contact.
[114] As for K’s functioning, he found his problems with serious constipation difficult to deal with at first, but the constipation did stop and has not since returned.
[115] The respondent attends PTA meetings. He noted K. has a friend whose name he recalled on cross-examination is “A.”, three houses down.
[116] The respondent knows the name of K.’s dentist. He testified that he advised the claimant about K’s visits to the dentist and medical visits. He sees K. as a normal seven-year-old. He has not had counselling since December 2013. He felt that K. had been to counsellors enough.
[117] The respondent remembered the names of several of the schools and preschools K. has attended.
[118] They moved into a new home in 2017, in a suburb near Edmonton.
[119] The respondent explained that he had to work out of town for the time being to fund the court proceedings. The length of time away varies; there was one occasion when he was away for 17 days.
[120] The respondent granted that the move was the sixth one in 3½ years. These were not all intentional and could not be avoided in the circumstances.
[121] The claimant called Mr. D.F. as a witness on the state of the complex in which the claimant, Mr. H., and the children continue to live; and his observations on the parenting of the claimant and Mr. H.
[122] He confirmed there was a one-year period when the police regularly attended; at a time when the complex was being badly managed. As he put it, “they were letting in anyone with a pulse”. New management was put in place and it is been quiet for the last three to four years. He testified he has known the claimant and Mr. H. for about seven years, more so recently. He said Mr. H., questioned about alcohol use, changed with the arrival of the children. He has never seen Mr. H. drunk since then. Mr. D.F. saw the claimant and Mr. H. as dedicated and caring. He could not recall how K. referred to Mr. H. Mr. D.F. could not specifically recall Mr. H. walking K. to school. Mr. D.F. has never seen the claimant smoke marihuana around the children but has only seen her smoke marihuana on three to seven occasions.
[123] The claimant’s basic position is that K.’s primary residence had always been with her before the respondent took K. to Alberta to live with him; that the respondent had little prior involvement in K.’s care before then; and that K. ought to be returned to her, as his only lawful guardian and custodial parent.
[124] She further maintained the respondent was not a lawful guardian and should not be made a guardian of K. now.
[125] She further complains that except for short visits, she has been deprived of parenting access for 3½ years. Counsel submitted the respondent had taken advantage of the existence of the 2014 order of Justice Myers to keep K. in Alberta. Counsel submitted the order of Myers J. was wrong and that it has been cruel to keep K. away from her based on an accusation that counsel submitted which turned out to be untrue.
[126] As for the claimant not having applied to set aside Myers J.’s order within 40 days, as the order provided or to appeal it, the claimant maintained she did not have counsel for a time, then legal aid ended and she did not have the resources.
[127] The claimant also submitted that the respondent is away at work a lot and argued Ms. K.K. is doing most of the parenting.
[128] Regarding Myers J.’s order, the respondent’s position is that it is now three years old. Counsel pointed out it contained a clear 48-hour variation clause and that the claimant otherwise had ample opportunity to vary it, pointing out that since the order she has had two counsel, brought multiple applications about matters such as parenting time, Skype and telephone calls. The claimant never sought to vary the order and never appealed it; this trial now affording the claimant the opportunity to present her case.
[129] The respondent’s basic position is that an overview of the claimant’s personal life and parenting reveals a history of bad decision making, several canvassed in these reasons, a preoccupation with and perhaps an addiction to marihuana, a series of earlier interventions by the MCFD; and at times, a willingness to put personal feelings, her loyalty to Z.T., for example, before her children’s safety. He argued that while the claimant says she has learned from her experience, changed, and become a better parent, counsel submitted the facts argue otherwise, citing for example, her continuing to smoke five to six joints a day, against her doctor’s advice and in circumstances where its use strains household finances. The respondent criticized the scenario of the claimant keeping watch on the children, outside on the patio, through the patio door window.
[130] The respondent submits there is no evidentiary basis for the claimant’s contention she has not seen K. for over three years. Counsel pointed out the evidence shows she has been to Alberta on three very successful convivial visits to Alberta to visit K. Each time she was welcomed by the respondent and Ms. K.K.; and was told she was welcome to visit at any time. The respondent covered the claimant’s ticket for one of the visits and was willing to provide further assistance for visits if required. In addition, the respondent and K. clearly made the claimant’s children welcome also, and have forged a warm and caring relationship with them.
[131] In addition, the respondent points out that he and Ms. K.K. have bought K. with them to the Lower Mainland for multiple visits; one of them including a day at the White Rock Beach, shortened only because the claimant was in her third trimester of pregnancy and left early.
[132] As for the abuse complaints investigated by the MCFD and the police, the respondent pointed out their authenticity has never been determined in court.
[133] Counsel further pointed out the claimant had agreed there was nothing wrong with the respondent, confirmed that Ms. K.K. had treated her well and had formed a great bond with K.
[134] The claimant formally sought an order that K. be returned to her care and an order for child support. But as fairly pointed out by the respondent, when questioned at trial, she did not articulate what she wanted or for what purpose.
[135] The respondent’s position is that K. should remain with him, with generously defined parenting time with the claimant. He supports parenting time arrangements for Christmas, Easter, and summertime, Skype, and time with the claimant’s extended family in Alberta. He does not consent to an order that Mr. H. have parenting time. (I note in passing that under the Family Law Act, S.B.C. 2011, c. 25 [FLA], Mr. H. is not entitled to parenting time.)
[136] The claimant opposes an order making the respondent a guardian of K.; counsel submits that a failure to return K. to his “only lawful guardian” does not by default allow a non-guardian to become a guardian. The respondent replies that Myers J.’s order that the respondent had lawful residency and care of K. negatives an obligation to return K. absent a court order; and the main purpose of this trial be to vary that order and/or make a new order found to be in K.’s best interests.
[137] The fact is that the court has not been asked until now to set aside or vary Myers J.’s order.
[138] In a fairly recent case, A.T. v. M.T., 2016 BCSC 502 [A.T.], the biological father’s right be to made a guardian of the child was also in issue. He signed a separation agreement unintentionally granting the mother sole custody and guardianship. He continued to be involved in the child’s life, as he had been since her birth. The facts in this case differ in some significant respects from those in A.T. in that the parties here never married or cohabited after the child’s birth. At paras. 51 to 53, I had noted following significant case comments on the importance of guardianship:
[51] It is noteworthy that twenty-three years ago, the Supreme Court confirmed that non-custodial parents retain residual rights over the child as one of their two natural guardians: Young v. Young, [1993] 4 S.C.R. 3, paras. 40 and 41. The importance of the status of a guardian and its potential benefits for the child cannot be underestimated, apart from the fact that with this status comes parenting time with the child, at least under the FLA. In short, if it is in the best interests of the child to do so, the parent’s guardianship may be reinstated.
[52] In paras. 30 and 31 of J.W.K. v. E.K., 2014 BCSC 1635, the court stressed the importance of guardianship status in a child’s life.
[30] … In A.J.H. v. L.C.H., 2013 BCSC 900 at para. 8, the court stated that the loss of guardian status "effectively render[s] [the parent] no longer one of [the child's] parents." Symbolically speaking, a guardian is a person with the right to play a parental role in a child's upbringing. This is reflected in the FLA: absent guardian status, a parent is simply a person with contact -- a person who may apply to the court for "contact" with a child, which may not even be in person, but in writing, or by telephone. On the other hand, a guardian has "parenting time" with a child (s. 42), even when they are not permitted to exercise parental responsibilities during that time.
[31]… Many of the cases decided under that statute also emphasize that guardianship status permits the maintenance or creation of a meaningful relationship between the parent and child. …
[53] The FLA identifies a wide variety of functions a guardian may exercise, over and above having the right to parenting time, granted by s. 41. See for example, ss. 43(2), 49, 53, 55, 68 and 69(2).
[139] Guardianship of K. has to be determined. The parties have never lived together in a marriage-like relationship.
[140] In A.A.A.M. v. British Columbia (Children and Family Development), 2015 BCCA 220 [A.A.A.M.], Newbury J.A. noted at para.12 that the “question of who may be a child’s guardian has always been troublesome where the parents were never married and are now separated, or where they did not cohabit at all.” She also noted at para. 12 that under s. 27(5) of the Family Relations Act, “the mother in such a situation was sole guardian unless a court ordered otherwise.” She further noted at para. 12 the FLA adopted “gender-neutral language”, s. 39 of the FLA providing:
Parents are generally guardians
39 (1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.
(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.
(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies:
(a) section 30 [parentage if other arrangement] applies and the person is a parent under that section;
(b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian;
(c) the parent regularly cares for the child.
(4) If a child's guardian and a person who is not the child's guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child by reason only of the marriage or marriage-like relationship.
[Underline emphasis added.]
[141] Only sub-section (c), which sets out the respondent’s evidentiary burden, is relevant in this case.
[142] In A.A.A.M at paras. 61 to 63, Newbury J.A. considered the meaning of “regularly cares for”. She preferred an interpretation of regularly cares for that carried the connotation of continuity, “a continuing willingness to provide for the child's ongoing needs”, (at para. 63).
[143] The wording in ss. 39(3), “A parent who has never resided with his or her child is not the child's guardian unless one of the following applies” is noteworthy in that that it cannot be said that the respondent has never cared for K., implying that a biological parent who has resided with and cared for a child for a significant period of time can become their guardian. In my opinion, the continuing care provided does not have to fall within a particular phase of the child’s life, such as infancy when the mother’s involvement is often greater.
[144] In the alternative to s. 39(c), s. 51 is applicable:
51 (1) On application, a court may
(a) appoint a person as a child's guardian, or
(b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act, terminate a person's guardianship of a child.
(2) An applicant under subsection (1)(a) of this section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules, respecting the best interests of the child as described in section 37 [best interests of child] of this Act.
(3) Subsection (2) of this section applies regardless of whether there is consent to the application under section 219 [persons may consent to order being made].
…
[Underline emphasis added.]
[145] Subsection (2) sets out the respondent’s evidentiary burden.
[146] I have found that while the claimant was K.’s primary caregiver in his infancy, the respondent was involved in the child’s life from the outset. He had quite regular engagement with the child, contrary to the claimant’s statement to the social worker and, to some extent, to what she held out in direct testimony. On cross-examination, the claimant resiled from her statement to an MCFD social worker that the respondent had never been involved in the child’s life, agreeing that was untrue.
[147] The respondent demonstrated his concern for K.’s well-being in his pursuit, at considerable legal expense, of an investigation into whether K. had been sexually abused. Whether that was ever judicially adjudicated or not is not relevant when it comes to this issue. The inalterable fact is that since the May 19, 2014 interim order of Justice Myers, K. has remained in the lawful custody of the respondent. That order has never been appealed or varied; although as we saw, provision was made for a variation in Myers J.’s order.
[148] The claimant acknowledged K. is doing well and is well cared for by his father and his partner, Ms. K.K., with whom K. has also formed a close relationship. Although the claimant has suggested otherwise, the evidence clearly shows the respondent has encouraged contact between K. and the claimant, to the extent of paying the claimant’s airline ticket to Edmonton at least once, willing to help with travel costs in future, and strongly encouraging the claimant to have more visits and contact. Meanwhile, for three years, he has been making the necessary day-to-day parenting decisions. He is not seeking sole guardianship, as is the claimant.
[149] I accept the testimony of Ms. K.K. and Ms. A.S. on how close and loving is bond between the respondent and K., and I note his willingness to encourage and facilitate more regular contact with the claimant, who agreed that apart from the respondent’s insisting Mr. H. must not be present when K. is visiting, they have not had much controversy between them.
[150] I find the history at times of bad decision-making by the claimant argues for the respondent’s voice in parenting decisions.
[151] If, accepting for discussion, as the claimant maintained, Myers’s J. interim order had been shown in the evidence to be unfounded, I found it an order pursued out of parental concern and sought in good faith, not a means to snatch K. from the claimant. Now we are at a final stage where the court has the benefit of much more evidence, not all of it traversed in these reasons, than did any of the previous judges who had been asked to make interim orders, none of whom were asked to set aside Myers J.’s order on custody, and none did.
[152] The evidence proffered by the respondent amply satisfies me that it is in K.’s best interests that I order the respondent be appointed joint guardian of K.
[153] It would be healthy for K.’s stability and his emotional well-being to know – as he has probably been thinking until now - that his father is a legal guardian.
[154] Some of the foregoing comments and findings are relevant to the issues of primary residence and parenting time, to which I will turn below.
[155] Counsel for the respondent submitted few parties have been submitted to such close scrutiny as has the claimant in this trial, her every past misdeed brought to light. Both counsel were thorough in their cross-examinations, which were appropriate in subject and scope, considering the issues and the decisions required.
[156] The episodes of the poor judgment are relevant to the stability and safety of K., and it was not unreasonable for counsel to closely question them.
[157] At the same time, the claimant has some good personal qualities. Her negative experiences can be seen as cautionary ones and a reminder of the vigilance expected of a parent with young children in their care. The evidence in its totality, however, does leave some impression the claimant is at times motivated more by her own emotional needs to have her “missing child” back than by what is in K.’s best interests – which would encompass more contact with K., as the respondent encouraged, than she had. To her credit, however, she acknowledged it would not make sense to take K. away from his school when he has been doing so well and is happy where he is. Further, despite the intensity of the trial proceedings, there does not seem to be much, if any, personal acrimony between the parties.
[158] As for the notion of K. having “two daddies”, while well-intended, in my view, it was not wise to convey that notion to K. when he had an increasingly involved biological father. Mr. H. could have been a father figure without introducing a meme.
[159] At this point, my focus is a more prospective one, on K.’s best interest. I do not question the claimant loves K. and wants him to be safe, happy, and see all his needs met. Her other three children are apparently well-adjusted and cared for. Two witnesses said she was a caring parent.
[160] Section 37(1) of the FLA states that in determining what is in the best interests of a child, all the child’s needs and circumstances must be considered, including the following:
Best interests of child
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
[161] Having considered the foregoing, for the following reasons I find it is in K.’s best interests that K.’s principle residence should remain with the respondent, with the claimant to have parenting time that I shall define below.
[162] The claimant stressed the fact she was the only home and mother for K.’s early formative years and that he has lost a sibling and sister to whom he has been very close.
[163] As for K.’s current health and emotional well-being, there is no doubt he is loved, well cared for and fed; and has been doing very well at school. He has his own room. He is very close to his biological father. The respondent has had to work away from home in recent months, to earn more money to pay for legal fees on this matter. But this will not be a lasting arrangement. Ms. K.K. looks after the children and cooks meals for the family every day. K. has pets and Ms. K.K.’s children, older siblings, D., age 9 and B., age 10, to whom he is very close. He has extended maternal and paternal family in Alberta, with whom he can have contact. As for his maternal sibling relationships, a positive for K. is that both Ms. K.K. and the respondent have an excellent relationship with them and are very fond of them. The claimant is aware of that. They have welcomed them into their home and are in a position and of a mind to facilitate K.’s contact with them in a way it is doubtful the claimant could or would facilitate. Therefore, the claimant’s maternal sibling relationships will be sustained without having to move back to B.C. I note K. is almost eight; the maternal siblings older. WestJet offers daily service to and from Edmonton and Abbotsford. The respondent and Ms. K.K. have travelled frequently to Abbotsford and taken K. with them. K. will have generous parenting time with the claimant.
[164] The claimant forcefully stressed K. had lost his “Daddy [B.]”, submitting he is close to Mr. H., a father figure in his younger formative years. I accept K. missed Mr. H. for a time after his move to Alberta, had spoken fondly of him, and that there was a bond there. That said, however, Mr. H. is not legally entitled to parenting time with K. I have already commented on the claimant telling K. he had two daddies and putting them on the same footing. The nature of that relationship has now become a delicate subject that has to be handled deftly. My challenge and focus is on how to define the claimant’s parenting time in a way that does not unduly exclude Mr. H., while also accommodating the respondent’s doubts and enduring fear for his son’s safety. I will address that later. What must be avoided is causing the child, K., unhealthy emotional turmoil.
[165] It is not appropriate for me to make any findings about what, if anything, occurred. As the record stands, no charges were laid, so no conviction, and the MCFD has closed their file on the matter. In my view, the investigation could have been conducted more adroitly, with better communication and there are some unanswered questions. But as I said, I am not conducting a trial on that matter, and I doubt there ever will be one.
[166] The respondent struck me as a fair-minded person, committed to the well-being of his son, and dissatisfied with how the investigation was conducted. Being always vigilant for your child’s safety is reasonable. At this juncture, however, it is likely in K.’s best interests to set aside this episode and focus on the future. As I said, I will address that further below.
[167] As for the child's need for stability, given the child's age, almost eight, and stage of development, in my opinion, given his progress, the bond with his biological father, with Ms. K.K. and her children, and K.’s progress in school, he is best off in Alberta. The family has had to make several house moves in the last few years and plans to move at the most auspicious time into the former home of Ms. K.K.’s deceased husband.
[168] As for 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, the claimant criticized the fact that the respondent is away for a week at time and Ms. K.K. “is actually raising the children while he is away.” K. attends school full-time, and the respondent is regularly home for an extended period. As I mentioned, K. is very close to Ms. K.K. and she is devoted to looking after the children during the week. K. still spends a lot of time with his father, who does not plan to have to travel out of town for work.
[169] The claimant only works about 10 hours at work weekly (she lacked details and an update of earnings at trial.) As she would be at home most of the time, she would be in a position to exercise her responsibilities.
[170] As for the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members, and whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; the respondent is still concerned about the risk of sexual abuse. The claimant contends it is unreasonable for the respondent to insist that Mr. H. not be present when K. is in her care.
[171] As I intimated earlier, this is an area where some accommodations are required; the claimant recognizing that the father’s concerns are not fabricated, rather flowed from information with which he had been provided. On the other hand, Mr. H. has two of his own children living in the home; and two stepchildren. The MCFD does not consider him a threat to the children. Since I will not be ordering that K. be returned to B.C. and in the care of the claimant, any social contact would occur in the context of the claimant’s parenting time. In that context, it becomes possible to address the respondent’s concerns, K.’s safety, and the ability of Mr. H. to have normal family contact with the four children, including the twins living in the residence. I will set out the order for that below.
[172] In summary, having regard to the foregoing guidelines and the evidence as a whole, I find that K. remaining with his father will to the greatest extent possible protect his physical, psychological and emotional safety, security and well-being.
[173] K.’s principle residence, therefore, will be with the respondent, with generous parenting time with the claimant, as follows.
[174] For the coming summer, the claimant shall have parenting time in Abbotsford for two weeks: one week in July and one week in August. As the respondent will need summer vacation time, he shall set aside two weeks over the summer in which he will require vacation time and those weeks will be set apart; the claimant’s weeks shall fall outside the up-to-two weeks the respondent requires for summer vacation.
[175] While K. is seeing the claimant in Abbotsford, Mr. H. may be present with the family, but not alone with K. This is not based on a finding, rather to alleviate the respondent’s concerns; assure K.’s safety; allow for Mr. H. to be with his children; and for Mr. H. and the claimant to continue with their family life.
[176] In my view, this is in Mr. H.’s interest.
[177] This accommodation is reviewable in May or June 2017; at the time of the review of the parenting arrangements as a whole.
[178] The claimant shall facilitate a telephone call to the respondent every evening. If the respondent drives K. to Abbotsford for a visit and happens to remain there for the duration, or part of it, he may see K. for up to a half-day in each week during that visit.
[179] For Christmas 2017, the claimant shall have parenting time with K. from the day before Christmas Eve to the day after Boxing Day, December 27, after which K. shall return to Alberta.
[180] For Christmas 2018, K. shall remain with the respondent until the day after Boxing Day, December 27, at which time K. shall be with the claimant, until the day before New Year’s Day, when he shall be returned home.
[181] In the years following, the Christmas schedule shall rotate between the parties, subject to any changes they make in writing, by mutual consent.
[182] If the claimant wishes to have parenting and sibling time with K. in Alberta between the New Year and summer vacation, she shall give the respondent 30-days’ notice to arrange an acceptable time, lasting for up to seven days.
[183] For summer vacations in subsequent years, the parties shall confirm, in writing, vacation dates they wish to take in the months of June to September, totalling one month, divided into two-week quadrants. If they cannot agree, they shall flip coins on Skype: heads up winning first selection; tails, the next.
[184] Any vacation time outside Canada requires two-weeks’ notice and is to include the itinerary and contact information.
[185] The respondent shall hold K.’s passport. If the claimant requires it for said trip, he shall make arrangements for secure hand-delivery, no less than 10 days before the trip. The claimant shall be responsible to return the passport, not later than 10 days after returning.
[186] If the claimant wishes to encourage contact with Alberta extended family, she must provide the respondent with contact information.
[187] For Spring Break 2018, K. shall remain in Alberta, unless the respondent will be working out of town, in which case, the claimant shall have the election of having parenting time during Spring Break.
[188] In the year next following, the claimant would have parenting time during Spring Break; and the year next following, the respondent, continuing thereafter, on that rotation.
[189] The claimant may contact K. by phone or Skype before bedtime, say 8:00 p.m., up to three times weekly. If K. wishes to call the claimant, or vice versa, the parent caring for him shall facilitate that.
[190] The respondent shall ensure Mother’s Day cards and such like prepared by K. for the claimant shall be forwarded.
[191] The claimant is responsible for obtaining school records if she wishes to have them.
[192] The respondent shall maintain K. on his medical and dental plans.
[193] The parties shall speak respectfully about the other party in the child’s presence.
[194] They shall communicate by email, avoiding matters related to the litigation.
[195] The claimant and Mr. H. shall not discuss the abuse investigations with K.; rather focus on activities and unrelated subjects. If K. raises the subject, the claimant shall advise the respondent, and that should be left in the hands of a counsellor, should it appear necessary.
[196] I find modified “Joyce model” terms for the exercise of parenting responsibilities most apt for this case. The respondent shall have responsibility for:
a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Except that when K. is in the care and control of the claimant, she shall make day-to-day decisions;
b) making decisions respecting where the child will reside;
c) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; provided further, however, that each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the child, including significant decisions about the health (except in emergency decisions), education, religious instruction and general welfare;
d) the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach significant decisions with each other and the obligation to try to reach agreement on those decisions;
e) if the guardians cannot reach agreement on a significant decision despite their best efforts, the respondent will be entitled to make such decision and the other guardian will have the right to apply for directions on a decision the guardian considers significantly contrary to the best interests of K. under s. 49 of the FLA; and
f) each guardian will have the right to obtain information about K. directly from third parties, including but not limited to: teachers, counsellors, medical professionals, and third-party caregivers.
[197] The claimant has not contributed to the support of K. since he has been in the respondent’s custody. The respondent has covered the cost of all the claimant’s care and activities.
[198] At this juncture, I find the only appropriate child support would relate to those extended periods in the summertime and Christmas when the claimant has parenting time. The respondent shall calculate child support for K. for the summer months on a pro-rata basis, based on his Federal Child Support Guidelines, SOR/97-175 [Guidelines] income, i.e. the monthly Guidelines amount ÷ 30 days x 7 days. The respondent shall cover K.’s cost of travel, except if he drives K. to Abbotsford.
[199] For the claimant’s Christmas parenting time, when K. is in her care, the respondent shall provide K. with $60 for spending; and the claimant, $100.
[200] Otherwise, the respondent is not obliged to pay the claimant child support.
[201] Each party shall bear their own costs. The claimant was successful in advancing his position, however, as the main issue related to the child’s custody, parenting time, and parenting responsibilities, in which both parties had a legitimate concern and interest, each party shall bear their own costs.
[202] The order may be reviewed in May or June 2018. I am not seized of the matter, but if I am available at the time, the parties may request that I conduct the review.
[203] Counsel could not have said more on behalf of their clients than they did. I appreciate counsel’s assistance.
“N. Brown J.”