IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Applicant P.A.G. and the Respondent M.S. are the parents of a daughter, E. M. S., who was born on (d.o.b.) 2005. The parties lived together until June of 2011 when they separated following an alleged incident of domestic violence that ended with an order under section 810 of the Criminal Code. Since then, the child has resided primarily with the Respondent.

[2]           During their cohabitation, the parties engaged in a lifestyle involving frequent drug and alcohol use. In recent years, the Applicant has been very active in recovery from his substance abuse through a combination of counselling, twelve step meetings and church activity. The Respondent continues the recreational use of cocaine, something which she admits to, but does not see as problematic. She claims that this does not affect her parenting and that she does not drink or drug around her child. Unfortunately, attempts to independently assess the extent of her drug use have been hampered because she has not submitted to any recent testing for drug use, despite being ordered by this court numerous times to do so. The Applicant has paid for a number of tests, but each time one is scheduled, it seems that the time is not convenient for the Respondent’s schedule. A review of the court file shows that four orders of this court have been made for the Respondent to have a drug test done, but she has one submitted to testing once.

[3]           On September 4, 2012 the Respondent obtained an order for sole custody of the child under the Family Relations Act. The Applicant was given specified access to the child. By orders of this court, neither party is permitted to change the child’s residence to a location outside of the Lower Mainland of British Columbia,

[4]           On December 12, 2012, the Applicant filed an Application for an order for joint guardianship (then known as joint custody) of the child, with a proposed regime of equal parenting. A reply was filed opposing this. The Respondent now also asks for on order permitting her to move with the child to Nakusp, BC. In an order of this court made on August 6, 2013, the Respondent was given leave to “bring a proper application relating to her proposed relocation” but she has never done this. Nevertheless, at the hearing of this matter, evidence was heard about this and it makes sense to decide this issue now.

[5]           At the hearing of this application, both of the parties testified, and testimony was also heard from the Applicant’s girlfriend, the Respondent’s boyfriend, the Applicant’s counsellor and his adult daughter. Following is a summary of the evidence heard, and the reasons for the order which will be made in this matter.

[6]           Neither of the parties testified when exactly they began their relationship, but in a report under Section 211 of the Family Law Act, the report writer concludes that the parties met between 13 and 16 years ago at the Respondent’s work place. Much of the reason for specific recollection about their time together is because both parties acknowledge that they were involved in lifestyle that was focused on partying, and on alcohol and drug use, with cocaine being one of the drugs that they frequently used. Each maintains that their drug use was not as bad as the other recollects, although the Applicant acknowledges that his addictions were bad enough to warrant treatment, counselling and ultimately abstinence.

[7]           The child who is the subject of these proceedings was born on October 3, 2005, when the parties were still living together. The Applicant recalls being present at the child’s birth and cutting the umbilical cord. After the child was born, the couple continued in their partying lifestyle, though the Respondent maintains that she became more responsible as the mother of an infant. However by her own admission, she did not give up her cocaine use.

[8]           The parties’ relationship ended following an altercation on June 26, 2011 which resulted in a charge of assault. According to the evidence I heard, the Applicant was not convicted of any offence. He was ultimately placed on an order under section 810 of the Criminal Code. Neither party got too deeply into the details of that incident. Those circumstances were addressed more fully before the Honourable Judge MacKay of this court on September 4, 2012, following which, Judge MacKay ordered that the Respondent would have sole custody of the child and the Applicant would have access to the child every Friday from 6 p.m. until the following Saturday at 6:00 p.m. and every Wednesday from 5:30 p.m. until 7:00 p.m. The Applicant did not attend at that hearing.

[9]           The Applicant filed this application on December 21, 2012, three and one half-months after the order of Judge MacKay was made. When asked in the application to articulate what circumstances had changed since Judge MacKay’s order, the Applicant listed his continuous sobriety since his arrest in June of 2011. He also made a number of allegations which have not been substantiated. These include accusations that the Respondent uses drugs in front of the child and that she resides with someone who is trafficking in drugs.

[10]        The evidence does demonstrate a remarkable change in the Applicant from the time of his arrest to the present. Christine Brazeau, a counsellor at Fraser House in Mission, B.C., testified about a very noticeable improvement in the Applicant during the three years that he has been in recovery. She testified that he presented with issues of substance abuse, anger, and emotional instability. During the first year of his recovery she counselled with him each week. He also attended a men’s program, a parenting course and other programs. She describes the Applicant as “a success story” and points out that, in addition to having three years of continuous sobriety, he has expanded his support network, and has made great strides in controlling his anger. In her words, the Applicant has shown “a lot of emotional growth and lots of interpersonal growth.”

[11]        The Applicant provided a calendar showing a record of the counselling and other activities he has been involved in, to maintain sobriety and good mental health. These include regular attendance at the Cross Current Church and the CLA Recovery Church, attendance at a men’s group at Fraser House, attending twelve step meetings, and attending a series of lectures entitled “Family Peace”. He is very serious about his recovery.

[12]        The Respondent continues to use cocaine and does not feel the need for sobriety in her life. She does not believe that it adversely affects her ability to parent. She testified in chief that her cocaine consumption is something that she does “on my own time”. She testified that she might do “a line or two or three, maybe twice a month. It’s a social thing. I might do a couple lines with a few friends. It is what it is.”

[13]        Several efforts have been made to independently verify the extent of the Respondent’s cocaine use, but the Respondent has generally not cooperated with these. Specifically, the following orders of this court have been made throughout this matter:

[14]        In addition to these four orders, the Applicant set up and paid for another drug test on May 29, 2014. Despite getting notice of the test almost a week in advance, the Respondent did not attend at this drug test, claiming that it conflicted with her work schedule. The only drug test that has the Respondent ever submitted to was collected on February 27, 2013. That test confirmed the use of cocaine.

[15]        The Applicant also submitted to a drug test on January 21, 2013. The report from that test indicates that he “tested negative for all five classes of drugs” including amphetamines, cocaine, opiates and THC.

[16]        The Applicant has made a number of allegations has used drugs in the presence of the child. This was not part of his evidence at this hearing, but such allegations were made in previous affidavits filed in these proceedings by the Applicant on January 29, 2013, June 18, 2013, and October 2, 2013. One of the affidavits claimed that the Applicant’s adult daughter had witnessed this, but when that daughter testified in this matter, she said no such thing. One hopes that the reason why the Applicant did not maintain this assertion at trial is because, with recovery, maturity is also occurring and the Applicant is realizing that it is wrong for him to allege things that he does not know to be true. The Respondent denies using drugs in the presence of the child, and the Applicant’s daughter did not allege that this had taken place. In addition, the Respondent produced a letter from the Fraser Valley Aboriginal Children and Family Services, dated, May 30, 2014, which found no substance to these accusations. The Applicant would be well advised to cease making further reports of this nature without and credible proof to substantiate such accusations. They not only waste the time of social workers that could be better spent, but also adversely affect his credibility. Escalating conflict by making unsubstantiated accusations against the mother of his child is obviously not in the child’s best interests.

[17]        The Applicant called his adult daughter to testify on his behalf. It was quickly apparent that the daughter did not want to become involved in this conflict. She had no evidence that assisted the Applicant’s case, and it was very inconsiderate of him to put his daughter in that position. Neither party will be justified in placing any blame or fault on the Applicant’s adult daughter for the outcome of this application. It is unfortunate that the stress of being forced in the middle of this conflict was placed on her. If the Applicant is sincere in doing what his recovery asks of him, he will make amends to her for putting her in such a difficult position.

[18]        The Applicant did not appear at the hearing before Judge MacKay in September of 2012. He stated that he failed to attend that hearing because he suffers from extreme anxiety. His appearance in court at this hearing supports this contention. The Applicant was very visibly nervous, physically shaking at times, with long pauses often before he spoke. His counsellor also confirmed that anxiety was a significant problem for the Applicant. The Applicant also has difficulty reading because of dyslexia, and also acknowledges problems with his memory.

[19]        On November 6, 2013, a report pursuant to section 211 of the Family Law Act was submitted by Pam Cripps, a Family Justice Counsellor. The report is insightful both in providing information about the child and about the parties. In the report, Ms. Cripps notes that the Respondent acknowledged her social use of cocaine and told Ms. Cripps that she had made “a mental decision to stop” and that she had only used cocaine once since May of 2013. If the Respondent had resolved to cease the use of cocaine when she spoke to Ms. Cripps, it appears that she has been unable to follow through on that intention. She has acknowledged cocaine use as recently as May of this year, and her failure to attend for drug testing raises concerns about what the test may have disclosed not only about the presence of cocaine, but the quantity in the sample as well. When the Respondent told Ms. Cripps that she had stopped using drugs. It is unclear whether she said this hoping that she could follow through with that goal, or whether she was deliberately being untruthful.

[20]        Ms. Cripps describes the child as quiet, with a silly side, who showed herself to be “bubbly and content” in the presence of both parents. She has no behavioural issues and any misbehaviour is typical of most children her age. She appears to be a very intelligent, active and talented child who participates in dance, violin, guitar and riding horses. She has a passion for animals and would like to be a veterinarian someday. She is aware of her parents’ conflict, but loves both of her parents very much. Hopefully her parents will continue to allow her to do so. 

[21]        In the report, the Respondent is complimentary about the Applicant, stating that “it is like night and day” from where he was at the time of their break-up. She told Ms. Cripps that the Applicant is capable of doing “amazing things as a dad” and that “he wants to be a good dad.” Conversely, the Applicant has trust issues with the Respondent because of her continued drug use. Generally it is Ms. Cripps’ conclusion that :

[22]        Ms. Cripps concludes that it would be beneficial to the child to have the Applicant more involved in her life as she grows. She recommends a shared parenting arrangement and proposes that the child spend the week with the Respondent and weekends with the Applicant (with the Respondent having one weekend per month with the child.) She also recommends that parenting arrangements should be shared, but that the Respondent should have responsibility for the child’s education and health decisions.

[23]        The Applicant is employed with the City of Abbotsford but is currently on medical leave because of a work-related injury. No firm date has been fixed for his return to work. He is currently in a relationship with M.O. The two maintain separate residences. Ms. O. is not inserting herself into the parties’ conflict. She describes the child as healthy and happy in the Applicant’s home.

[24]        The Respondent operates a day-care and also works part-time at an equestrian center to help with the costs of her daughter’s horse-riding. She is in a relationship with M. G., who works in the oil industry. Mr. G. works for three weeks and returns home for ten days. The two have been in a relationship for three years. He has a hobby farm near Nakusp, BC. He is aware of the Respondent’s cocaine use, but does not use the substance himself because doing so would jeopardize his employment. Like Ms. O., Mr. G. also seems very level headed and does not appear to have any interest in escalating any conflict between the parties.

[25]        Nakusp is a small community of about 1600 people located on the east side of Upper Arrow Lake. It is accessible off of Highway 6 and is about 105 km south of Revelstoke, BC. It is about 520 km from Abbotsford, and is normally takes between 7 and 8 hours to drive there, depending on road conditions. The nearest large city would likely be Kelowna, which is almost a 4 hour drive away. The nearest office of the Ministry of Children and Families is in Revelstoke.

[26]        The Applicant is asking for an order that both parties are joint guardians of the child and that they share parenting responsibilities. He asks for a shared parenting arrangement in which the child is in each parent’s care for approximately equal periods and he is opposed to the Respondent changing the child’s residence to Nakusp.

[27]        The Respondent asks for an order which removes the current restrictions on where the child can reside and asks for an order expressly allowing her to change the child’s residence to Nakusp. In anticipation that such an order will be granted, she is consenting to very generous parental contact and proposes that the child spend every long weekend, spring break, and the majority of the summer with the Applicant. She is willing to deliver the child to the Applicant and pick the child back up at the end of the visits as well. She also proposes that he have contact with the child in other manners such as by telephone and on Skype.

[28]        Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of section 37 specifically mentions the following factors:

[29]        Section 37 goes on to provide, in subsection (4) that “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.”

[30]        Under section 65 of the Act, “relocation” is defined as:

[31]        By application of section 251 of the Family Law Act, the Applicant ceased to be a guardian of this child when Judge MacKay made his order that the Respondent was to have “sole custody” of the child, without any order for guardianship. It is clear under these circumstances however that the Applicant is a person who “has a significant role in the child’s life.”

[32]        The Respondent has not made any formal application for relocation of this child, despite being ordered to do so by Judge Hamilton on August 6, 2013. Rather than simply dismiss the application on those grounds, I believe the issue must be addressed because orders respecting the residence of the child remain in effect, and it is in the best interests of this child that the issue be decided.

[33]        Section 69(3) of the Act provides that applications for relocation are decided on a consideration of the factors set out in section 37(2), as well as the following additional factors set out in section 69(4):

[34]        In this case, the Applicant is not presently a guardian, but is applying to become a joint guardian. Normally he would not have the status to challenge the application because under section 68 of the Act only another guardian of the child may do so. I propose firstly to deal with the Applicant’s application for guardianship, and secondly address the issue of the child’s residence.

[35]        If this application was being brought three years ago, it is unlikely that the Applicant would be successful in his application for guardianship. At the time he was slave to his alcohol and substance abuse. The problems which accompany these issues do not confine themselves simply to intoxication. They can also include anger, violence, resentment, hostility, very poor judgement, an incapacity for self-care and the inability to properly care for others. At that time, the Applicant had many of these problems. To his credit, he has been very diligent in seeking to address his problems through counselling and other programs. The evidence of Christina Brazeau of Fraser House was especially persuasive in confirming and corroborating the steps that the Applicant has taken and the progress he has made. Ms. Brazeau’s description of the Applicant as “a success story” and as someone who has shown significant emotional and interpersonal growth, who has transitioned from an angry person to a calm one and who is open to take advice and help speaks volumes about the Applicant’s ability to meet the responsibility of being a guardian to his child.

[36]        This is not to suggest that there is no room for improvement on the part of the Applicant. Like many parents in his position, he has not completely divested himself of past resentments. His continuing to make unsubstantiated complaints against the Respondent is problematic, as continuing animosity against the mother of his child is not in that child’s best interest. The Views of the Child report, the evidence of other persons in the child’s life, and the fact that the Respondent is willing to consent to an order which would entrust the child to the Applicant’s care for significant periods of time suggests that there are no grounds for concern about his ability to care for and parent this child.

[37]        The Applicant’s ongoing resentment of the Respondent is unjustified. It has been said that holding onto resentment is like taking poison and hoping that the other person will suffer from it. It is hoped that with continued counselling and an awareness of the problem, he will no longer make unsubstantiated complaints to the Ministry of Children and Families, and will realize that continuing to do so only hurts his credibility and reduces the likelihood of a greater parenting role in his child’s life. Making these baseless complaints is equivalent to his taking the metaphorical resentment poison.

[38]        The Applicant’s continuing mistrust of the Respondent is a completely different issue. The elephant in the room in this case is the Respondent’s continuing assertion that she is okay to continue to do a few lines of cocaine when the child is not in her care and there is nothing wrong with this. In her words, “it is what it is.” There are a number of problems with this. Firstly, cocaine possession is an offence under section 4 of the Controlled Drugs and Substances Act. Secondly, cocaine is a highly addictive substance. It is considered a “hard drug” and possessing or trafficking in it is treated more harshly because of the potential for addiction and overuse. As with many other addictive substances, the user is in the worst position to assess the effect that the drug is having on him or her. It is not uncommon for those misusing the substance to claim that they thought they could handle recreational usage, only for the problem to get badly out of hand. (This is a common scenario for offenders in criminal courts.) There is also the concern that the child will model the Respondent’s behaviour and see cocaine use as something she wished to mimic, something that is clearly not in the child’s best interest.

[39]        The Applicant’s claim that her cocaine usage is under control is suspect for a number of reasons. Firstly, she told Pam Cripps that she had stopped using the substance in the spring of 2013. Whether this was a deliberately false statement, or whether she had intended this to be her last usage and was unable to meet that intention is not clear. What is clear however is that it is not easy for her to quit, in spite of there being very good reasons for her to do so. Secondly, the fact that she has only submitted to one drug test (which showed cocaine usage) despite four court orders requiring her to be dug-tested, supports an adverse inference that her cocaine usage is greater than she reports. Additionally, in anticipation of court proceedings to determine the future of one’s child, it would be reasonable to expect that the love for one’s child would be stronger than the love of recreational drug use, and that if cocaine usage was “no big deal”, the user would give up cocaine usage and provide a clean drug test so as to make this no longer an issue. The fact that the Respondent has been unable to do so raises a very large red flag.

[40]        The evidence suggests that this child is cared for appropriately in both homes, notwithstanding the Respondent’s continued drug use. Apparently the Ministry of Children and Families is aware of the Respondent’s recreational cocaine use, but has not expressed any concerns about it. (In fairness, no one from the Ministry testified. Their letter of May 30, 2014 simply states that they investigated concerns about the Respondent’s drug use and that “the investigation findings indicate that there are no safety concerns present” and they are closing their file.) According to Pam Cripps’ report, the child has no health concerns and is content in both homes. The Respondent testified that the child is showing signs of Dyslexia, but there has been no actual diagnosis of this. At present the child's health and emotional well-being seems to be being addressed by both parents, although it is difficult to fully assess this in the absence of a clear picture of the Respondent’s drug use.

[41]        The child's views were canvassed by Ms. Cripps. This child is very adaptable, telling Ms. Cripps that she would be “okay” living with either parent. It was interesting to note that the child was concerned about hurting her mother’s feelings. It must be clearly understood that neither party should place any responsibility or blame on the child for the outcome of this application. It is the parties’ behaviour, actions and choices that are responsible for determining the child’s future, not anything the child has done or said.

[42]        This child appears to get along well with the parties’ new partners. The Applicant’s adult daughter also is very fond of the child. The child’s maternal grandmother resides in Mission, BC, but according to the Respondent’s evidence, the grandmother may soon be leaving Canada for Sweden. This is not a case where strong ties to significant persons in the child's life other (other than her parents) should decide her future.

[43]        This child has been cared for primarily by the Respondent since the parties’ separation. By all accounts, the child is adaptable and would thrive in either home. The Respondent has proposed that, if she is permitted to live in Nakusp, the child could spend longer periods with the Applicant, stating that the child “would adjust to the changes.” Her adaptability also speaks to the child's need for stability, given her child's age and stage of development. Both parents feel that the child would be capable of adjusting to living in two homes, although the Respondent’s preference is that one of those homes be in Nakusp. Since the Applicant has made such strides in his recovery, the ability of each parent to exercise his or her parental responsibilities properly does not appear to be a matter of contention.

[44]        While the parties may disagree on the specifics, it is clear that family violence was an issue in their relationship. This has made the Respondent mistrustful of the Applicant, and that is quite understandable. According to the Respondent’s evidence, the child has never witnessed violence between the parties. If this application was being made two or three years ago, serious concerns would exist about the child's safety, security or well-being, given the recency of family violence. However the evidence of Christina Brazeau about the significant progress that the Applicant has been made in addressing his anger and addiction greatly reduces this concern. The report of Pam Cripps confirms that the Respondent acknowledges that no violence has occurred since separation, but she alleges that there were “aggressive incidents.” It has not been suggested that either party has shown any violence toward the child. The Respondent is not concerned that any such harm would come to the child if she was in the Applicant’s care for long periods of time if she is allowed to move to Nakusp.

[45]        In her evidence, the Respondent testified that she would not be using drugs at all if she moved to Nakusp. Some scepticism must attach to this statement, given that the Respondent told Ms. Cripps that she was going to stop using cocaine a year ago. If testing has been difficult to accomplish here, it would be all the more problematic in Nakusp, given the community’s size and remoteness.

[46]        The Respondent testified she would not use drugs in Nakusp because there is no access to drugs in Nakusp. Aside from her assertion that this is the case, no evidence was presented to support this statement, and unfortunately it is highly unlikely that this statement can be made about any community in BC. According to the most recently published statistics from the BC Ministry of Justice, Police Services Division, Nakusp has a higher rate of reported or discovered drug offences per capita than either Abbotsford or Mission. The following table illustrates this:

[47]        These numbers do not take into account a wide variety of factors, and in communities with smaller populations, there is greater potential for skewed numbers. The statistics should not be read as any disparagement of Nakusp. These statistics simply illustrate that it is naive to accept that a move to Nakusp would remove access to cocaine from the Respondent’s life.

[48]        The elephant in the room remains. What must be decided is if it would be in the child’s best interest to permit her relocation to a more remote community, further away from scrutiny, to live primarily with a parent who is confident that her use of a hard drug will remain under control. This is the same parent who has previously promised to cease her cocaine use, but has been unable to do so. Although safeguards could be put in place in a court order, this too is problematic because the Respondent has failed to abide by a number of court orders regarding drug testing.

[49]        On the foregoing consideration of what is in the best interests of this child, as set out in the Family Law Act, I am satisfied that the Applicant should resume his status as a guardian of the child with parenting responsibilities as will be set out. I am further satisfied that it would not be in the child’s best interests for the child to reside in Nakusp, BC as proposed by the Respondent.

[50]        I am also satisfied that it is in the child’s best interests for her to spend longer periods of time in the Applicant’s care. The Applicant has not shown that it would be in the child’s best interests to drastically alter her routine to the degree that he is proposing, unless it was still the Respondent’s intention to change her own residence to Nakusp. An order for a sharing of the care of the child will be set out on terms that are more in line with what Ms. Cripps has proposed. Those terms propose that the Respondent does not move to Nakusp. (The order does not prevent the Respondent herself from moving to Nakusp, but if she decides to do so, a different regime for the care of the child will have to be put in place.)

[51]        It may be that at some point in future, the Respondent is able to make good on her promises to cease her cocaine usage and she will come to realize that recreational hard drug use is incompatible with responsible parenting. Any applications for changes to the order that I now make should be supported by further drug testing. Future tests should be obtained at the Respondent’s expense. The Applicant has spent a considerable amount of money only to have the Respondent fail to comply with court orders for most of that testing. It is unfair to continue to place this burden on him.

[52]        For the foregoing reasons, it is ordered that: