IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  T.R.M. is the five-year-old son of S.M. and S.D.  On May 15th, 2013, T.R.M. was found to be in need of protection and placed in the continuing custody of the Director.

[2]           T.R.M. was removed from his parents' care on August 23rd, 2012, and has resided with his paternal aunt, C.K. [phonetic], and her husband, K.E., since then.

[3]           On May 28th, 2015, Mr. M. and Ms. D. were granted leave to apply to set aside the continuing custody order.

[4]           This is an application by Mr. M. and Ms. D. for reasonable and generous access with T.  Currently T. is with his parents every Saturday from 10:00 a.m. to 7:00 p.m.  Mr. M. and Ms. D. seek an additional day of access, including overnight access.

[5]           The Director opposes the application.  First, the Director submits that Mr. M. and Ms. D. already have reasonable access.  Second, the Director submits that Mr. M. and Ms. D. have failed to establish that increased access is consistent with the principles that I must consider.

[6]           In New Brunswick (Minister of Health and Community Services) v. L.(M.), 1998 CanLII 800 (SCC), [1998] 2 S.C.R. 534, the Supreme Court of Canada considered access following a permanent guardianship order.  The court held that the following principles apply:

[7]           The Court of Appeal in British Columbia (Director of Child, Family and Community Service) v. M.(A.), 2008 BCCA 178, held that these principles apply to the Child, Family and Community Service Act.

[8]           On May 15th, 2013, T. was placed in the continuing care of the Director.  The plan of care at that time, and continues to be today, is adoption by Ms. K. and Mr. E.  Ms. K. and Mr. E. have attended the adoption education program and have completed the adoption home study process.

[9]           T. has a younger brother, B., who is almost 16 months old.  Upon B.'s birth, Ms. K. and Mr. E. requested visits to allow T. to begin forming a relationship with B.  That relationship has continued to grow.

[10]        The guardianship worker, Shannon Woods, deposed at paragraph 23 of her affidavit, sworn October 28th, 2015, that this is a family that gathers frequently and interacts on many levels.  It is a family that has a strong extended family-orientated lifestyle.

[11]        I am therefore satisfied that family ties are a consideration on this application, and that that favours increased access.

[12]        I am also satisfied that the adoption process would not be hampered by increased access which includes an overnight.  There is nothing before me to suggest otherwise.

[13]        The issue is whether increased access which includes an overnight would have negative effects on T.'s physical or psychological health.

[14]        Dr. Barbara Fitzgerald has concluded that T. meets the diagnostic criteria of fetal alcohol spectrum disorder and that he has lower than expected adaptive skills.  In the last paragraph of page 5 of her report, she outlines what this means for T.

[15]        Ms. Woods deposes, in paragraph 29 of her affidavit, that there are concerns regarding Mr. M.'s and Ms. D.'s acceptance of T.'s diagnosis.

[16]        In their joint affidavit filed May 26th, 2015, Mr. M. and Ms. D. depose that because T. does not currently live with them, they are not in a position to determine exactly what T.'s needs are, but are confident that as parents they will ensure T.’s needs are met.  In their joint affidavit filed October 23rd, 2015, Mr. M. and Ms. D. depose that they continue to request information about any special things they can do to assist in T.'s growth and development.  Also, they depose that they want to know if there are any suggestions for the parents and caregivers relating to the care of T. that may be available from professionals.  They depose they have asked Ms. K. and Mr. E. for suggestions, but have received none.

[17]        That said, on October 28th, 2015, the first day of the two-day hearing set for this application, they received Dr. Fitzgerald's report and Ms. Woods' affidavit.

[18]        Mr. M. testified.  He did not comment on Dr. Fitzgerald's report, nor did he refute the assertion that he and Ms. D. have a limited acceptance of T.'s diagnosis.  He gave no evidence about how he and Ms. D. would deal with any of T.'s challenges.  While I appreciate he was asked about one aspect of T.'s behaviour which he testified he had not witnessed, and I accept that he had not witnessed it, that simply emphasizes the concerns I have just noted.

[19]        The failure to comment on Dr. Fitzgerald's report, the failure to refute the assertion of limited acceptance, and the failure to outline how he and Ms. D. would deal with T.'s challenges, is significant.  Those tend to support the assertion that Mr. M. and Ms. D. have a limited acceptance of T.'s condition.  Whether that is in fact the case will be determined at the trial.

[20]        For the purposes of this application, however, the apparent lack of acceptance is sufficient for me to conclude that overnight access should not be granted, because it would have negative effects on both T.'s physical and psychological health, because T. requires significant support and understanding.

[21]        Accordingly, the application is dismissed.