IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application brought by the Respondent T.T. to remove the requirement for supervised contact with his child and to expand the contact time to include overnight visits.  This application is opposed by the Applicant V.P., who takes the position that the concerns giving rise to the need for supervised contact remain and have not been properly addressed such that unsupervised contact is in the child’s best interests.

[2]           This matter was scheduled for three days of trial time, though the first of the three scheduled days was pre-empted by another matter.  At the trial both of the parties testified, along with the paternal grandparents and a witness to one of the scheduled visits.  At the conclusion of the trial decision was reserved in order to allow for further review of the court file and the past proceedings.  Following is a summary of the past court orders and other material on the court file, the evidence presented at trial, a summary of the applicable law and the application of that law to these circumstances, leading to the order that is now being made in this matter.

[3]           The Applicant V.P. and the Respondent T.T. are the parents of a son named T.D.T., who was born on May 14, 2008.  These parties met when they were both in high school in 100 Mile House, BC.  The Applicant was unable to live at home and moved in with the Respondent at his parents’ home.  When the Respondent’s parents moved to Surrey, BC, the parties moved with them.  As sometimes occurs when couples are young and lack maturity, drugs and alcohol were present in their relationship, though everyone presents a differing and murky picture of just what that looked like.

[4]           In 2007 the Applicant became pregnant and T.D.T. was born the following May.  It appears that the relationship was not in a good place at the time.  In a “Custody and Access Report” prepared in 2011, the Respondent’s mother described incidents in the home in which she would take the child upstairs because of the couple fighting after a bout of drinking.  The Respondent testified that he lost his driver’s license in 2009 and still does not have it back.

[5]           The couple separated in the spring of 2010 when the Applicant left the home with the child.  An incident arose in which police were called and the Respondent was charged criminally with threatening the Applicant, contrary to section 264.1 of the Criminal Code.  According to an affidavit of the Applicant sworn around this time, their separation occurred on April 15, 2010.  The Respondent testified that at the time he was “a mess”.  The parties had differing accounts of what happened immediately before the separation.  The Respondent was not truthful when he testified that police were called and “just took statements.”  In fact charges were laid, necessitating further court appearances and a subsequent court order that included a probation order.

[6]           The Applicant was more accurate when she said that she believes that the Respondent was charged and pled guilty and placed on probation.  Her counsel produced a link to a court file number and it was subsequently discovered that the Respondent was charged under the Criminal Code.  Technically he did not “plead guilty”.  In fact he entered into a Recognizance to Keep the Peace (commonly referred to as a “Peace Bond”) and was placed on probation for a year.  That court order required him to abstain from the consumption or possession of alcohol for that year.  It was surprising that the Respondent left this out in his evidence.  He was either deliberately omitting this detail or he was in such a state as to be unable to remember large portions of reality.  It is not conceivable that someone would confuse a number of court appearances and a year of reporting on probation with the mere taking of statements by police.

[7]           On April 19, 2010, the Applicant obtained a Restraining Order under section 37 of the Family Relations Act prohibiting the Respondent from “molesting, annoying, harassing or communicating with” the Applicant or the child.  He was ordered not to go to where the child was residing, and was prohibited from contacting or attempting to make contact with the child or anyone caring for the child.  The Applicant was also given an order giving her sole custody of the child.  That order denied the Respondent any access to the child.

[8]           Eight days later, on April 27, 2010, the restraining order was cancelled by consent of both parties.  The Respondent was allowed supervised access to the child from Wednesday at 2:00 p.m. until Friday at 2:00 p.m., to be supervised by his mother.  The Respondent was to be responsible for picking up and dropping off the child for these visits.  On August 10, 2010 that order was adjusted to allow the Respondent’s visits to be supervised by either of his parents.  Other adjustments were made to the access time in order to allow the Applicant to attend a family reunion and to compensate the Respondent for lost time with the child.

[9]           On September 14, 2010, another restraining order was made, this time prohibiting each party from “molesting, annoying or communicating with each other” or attempting to do so, except to make arrangements for the Respondent’s access and to discuss the financial costs of the child.  On the same day the Respondent was ordered to pay the Applicant $184 per month for the support of the child, commencing on October 1, 2010.

[10]        On September 28, 2010, the times of the Respondent’s access to the child were adjusted slightly and it was ordered that the Applicant would pay the Respondent $10 per visit for his transportation costs.

[11]        On March 8, 2011, an order was made for disclosure of the Abbotsford Police Department file concerning the criminal charge, after the appropriate vetting of the file took place.  The following month, on April 20, 2011, an order was made for a “Custody and Access Report” to be prepared, pursuant to section 15 of the Family Relations Act.  The parties were also ordered to submit to hair follicle testing to test for the use of illegal drugs.  The Applicant provided a clean test result on June 2, 2011.

[12]        On October 27, 2011, it appears that the Respondent had not complied with the order for drug testing and an order was made that he would not be allowed to proceed with an application for increased access to the child or for custody of the child until such time as he had complied with that order and had provided a current financial statement.

[13]        A Custody and Access Report was prepared in 2011 and filed with this court on October 25, 2011.  That report concluded that the Applicant had served as the child’s primary caregiver and that while the child had been in her care since the separation, he appeared to be very well-adjusted.  That report recognized the importance of the Respondent spending time with the child provided that he remained “in a sober state in order to safely and appropriately care for” the child.

[14]        The paternal grandmother recalls that sometime after this, the Respondent was told to leave their house.  She testified that she thought this took place in 2011.  Her husband recalled that this took place in about 2013.  The paternal grandfather recalled that his son struggled with alcohol abuse following the separation.  The paternal grandfather has himself acknowledged a problem with alcohol and has over three decades of continuous sobriety.  He testified that he tried to help the Respondent by taking him to 12 step meetings and by attempting to get him into some form of residential treatment.  Ultimately, he came to accept that the Respondent is unwilling to avail himself of this kind of help.  He believes that the Respondent “has to fix himself.  He has to sink or swim.”

[15]        The Respondent was asked by his counsel about his drinking, but he did not directly answer the question, instead recalling how the Applicant used to drink too.  He acknowledged that after the separation, in his words, “it got a little rough for me.  My life was falling apart.”  It was a strange assessment of the situation at the time, one that failed to appreciate that at the time that the Applicant has had to care for a small child as well as look after herself.  The Respondent would not directly address the question of the extent of his drinking, even in answering questions from his own counsel.  He simply said “it depends on whether I’m having a good week or a bad week.”  He added “some people play chess, some people drink” and simply concluded that “I don’t have a drinking problem currently”.

[16]        The Respondent said that he missed a number of visits with his child because he was not in a good relationship with his parents at the time.  He said “we were always at each other’s throats.”  After leaving their home, he found himself homeless for a time and went through a period of “couch surfing”.

[17]        The Applicant recalled that the Respondent would phone her frequently and repeatedly when he was drinking.  The Respondent was asked in cross-examination about whether he called the Applicant while intoxicated.  He replied “that’s not entirely true.”  The Applicant said that the Respondent’s drunken phone calling has made phone contact between him and the child problematic.

[18]        The Applicant described a significant number of missed visits by the Applicant.  She recalls that on one occasion the paternal grandfather returned the child home because the Respondent was drinking and was in no state to have a visit with the child.  She says that it was concerns about the Respondent’s drinking that led to the need for professionally supervised visits.

[19]        On April 22, 2014, the parties consented to an order under the Family Law Act which fixed the Respondent’s contact with the child to be on alternating weekends from Friday at 6:00 p.m. to Sunday at 3:00 p.m. commencing on May 2, 2014.  He was also permitted telephone contact with the child every Sunday at 6:00 p.m. and every Wednesday at 6:00 p.m. and his contact with the child for Christmas in 2014 and 2015 was also fixed.  An order was also made requiring the Respondent to disclose his Notice of Assessment, provided by the Canada Revenue Agency, by July 1^st of each year.

[20]        It appears that the Respondent continued to have problems with his lifestyle.  In August of 2014 the Applicant swore an affidavit which referred to the Respondent being hospitalized for at least five days because he had been badly beaten.  The Respondent and his parents acknowledged that the Respondent had undergone a period of hospitalization for injuries suffered in a beating, but were unsure of when this had happened.

[21]        On September 2, 2014, an order was made permitting the Respondent to be served with process substitutionally at an apartment at which he was believed to be residing.  On September 23, 2014, an order was made giving the Respondent parenting time for an eleven hour period on the following Saturday, to be supervised by one of his parents.  The following month, on October 14, 2014, another order was made setting the Respondent’s parenting time for set times during the following weekend, to be supervised by his parents.

[22]        The paternal grandfather swore an affidavit on October 14, 2014, in which he acknowledged that that his son was struggling with alcohol abuse, but insisting that this was not taking place during the visits.  In the affidavit he swore as follows:

[23]        A.W., a former roommate of the Applicant testified about a visit in which the Respondent showed up badly hungover.  The visit did not proceed because of the Respondent’s condition.  A.W. had earlier sworn an affidavit that puts the date of this incident at January 3, 2015.

[24]        On April 22, 2015, a consent order was made giving the Respondent parenting time on alternating Saturdays from 10:00 a.m. to 6:00 p.m., to be supervised by one of his parents, and requiring him to provide at least 72 hours’ notice that the visits would take place and immediate notice if the visits were to be cancelled.  The order also provided that he was to exercise his visits in a sober condition.

[25]        On September 2, 2015, the order of April 22, 2015 was amended to provide that the visits would now be supervised by a professional supervision agency, at the cost of the Respondent.  A “Views of the Child” report under section 211 of the Family Law Act was also ordered to be prepared.  The report took some time to prepare.  In his testimony, the Respondent blamed this on the Family Justice Counsellor.  However a letter on the court file from the Family Justice Counsellor, dated June 8, 2016, paints a different picture.  In the letter, the Family Justice Counsellor writes:

[26]        The paternal grandmother recalled an incident when she was told that the child was being referred to in school by his mother’s surname.  Although she was not a guardian and had no lawful authority to do so, she took it upon herself to contact the school and insist that the child be referred to by the Respondent’s surname.

[27]        The paternal grandparents separated for a period of time in either 2015 or 2016.  (The paternal grandfather says that it was “2 or 3 years ago”.)  The Respondent’s father attributed this to a difference in their parenting style when it came to the Respondent.  The Respondent’s father described his wife as someone who was more of an enabler when it came to the question of their son not acting more responsibly.  This assessment was consistent with the paternal grandmother’s presentation in her evidence.  For example she expressed the view that the Applicant should be responsible for bringing the child to see the Respondent or should pay him to travel to see his child, rather than for him to take on this responsibility.  Conversely, the paternal grandfather was of the view that the Respondent should become more responsible in facing and meeting his parental obligations.

[28]        In January of 2017, an incident occurred which damaged the relationship between the Applicant and the paternal grandparents.  The Applicant had permitted the child to spend some time with the grandparents, but she insisted that the court order for supervision of the Respondent’s visits be respected such that his contact with the child was to occur only in the presence of a professional supervisor.  The grandparents admit that the broke this trust and made a conscious decision to take the child to see the Respondent without a supervisor being present.  Under oath, the paternal grandmother insisted that this was done because it was the child who wanted to see the Respondent.  But it turns out that this was untrue.  When her husband later testified, he admitted that it didn’t happen the way his wife had described.  He testified that it was his decision for the visit to occur.  He testified that it was not the child who made the request.  He was the one who asked the child if he wanted to see his father and when the child said yes, he decided to make the visit happen.

[29]        To his credit, the paternal grandfather made the decision to call the Applicant and tell her what they had done.  She instructed him to return the child to her immediately and they agreed to meet in Langley for the exchange of the child.

[30]        The paternal grandparent testified that he then waited for what he called a “cooling off period”.  He used an inheritance he had received to pay for his son’s legal fees and an application for resumption of visits with the child was made.

[31]        On August 8, 2017 the Applicant was ordered to pay for two of the Respondent’s supervised visits of one hour each and his telephone contact with the child was ordered to resume.

[32]        Rowan Hansen, the Supervised Access Coordinator for the visit supervisor, filed an affidavit on September 27, summarizing some issues concerning some of the Respondent’s visits which were supervised by his agency.  The affidavit refers to a missed visit on August 19, 2017.  A visit set for August 27, 2017 did take place as scheduled.  But a visit scheduled for September 16, 2017 was cancelled by the Respondent by text message early that morning.  He had confirmed that he would be attending the visit the day before.  On September 20, 2017, the agency wrote to the Respondent advising him that the agency was no longer willing to supervise visits because of the Respondent’s failure to attend his visits or to provide timely notice that he would not be doing so.

[33]        The last order made in this matter, prior to this hearing was an order made on October 12, 2017 allowing the Respondent’s father to once again supervise the visits, provided that if the Respondent missed any of the visits without a valid reason (more clearly defined in the order) then future supervision was to be done by a professional supervision agency.

[34]        It appears that as time has progressed in the interval since these parties have separated, maturity was acquired sooner by the Applicant than by the Respondent.  She is now 36 years of age and is employed with the local school district.  She is also a foster parent to two teenage foster children and does respite work as well.  She is now in a new relationship and her common-law spouse has three children from his previous relationship and they spend parenting time with their father in the Applicant’s home.

[35]        Conversely, the Respondent has, until recently, been unable to support himself.  He testified that six months ago he was receiving social assistance.  It is only recently that the Respondent has obtained work as a glazier, working for the same company that his father works for.  When he is working he earns $33 an hour.  He testified that he thinks he can get his driver’s licence back soon, but in light of some of the other statements that he has made, it is difficult to gage how realistic this hope is.

[36]        The Section 211 report describes the Respondent as “somewhat scattered and unorganized both in terms of expressing his perspective and organizing himself for appointments.”  The report also described him as finding it challenging to “concretely provide information on his current alcohol use.”  All of this was consistent with the way he presented at trial.  The report writer was able at one point to have the Respondent “guesstimate” his weekly alcohol consumption at 15 drinks, but he said that he felt “dragonized” over the issue and did not see what the big deal was since he insisted that his child had never seen him drunk.

[37]        The Applicant acknowledges that the paternal grandparents are important in her son’s life.  She has no intention of disturbing that relationship and would like it to continue in spite of the breach of trust that occurred in January of 2017.

[38]        The Section 211 Report, which was filed with this court just two days as this hearing commenced.  The report canvassed the views of the child and notes that T.D.T. likes having his grandparents being involved in the visits with his dad.  He told the report writer that he feels himself to be “mostly closer to my grandparents than my dad”.  He adds that he does not feel comfortable with spending overnight visits with his dad, telling the report writer, “I feel like I need to get to know him more and feel more comfortable with him before I do this.”  The writer adds that T.D.T. “was clear that it was his strong preference that his grandparents continue to be present and remain involved with the time he spends with his dad.”

[39]        The report reaches the following conclusions:

[40]        The Respondent takes the position that supervision is required only briefly and that it can be done by his parents.  He is asking for a graduated increase in time spent with the child that will soon include overnight visits.  He also asks for a comprehensive order that provides time with the child during the summer, on alternating Christmases, over spring break, and which provides for the child to spend Father’s Day and Mother’s Day with the respective parent of the day.

[41]        The Applicant takes the position that for as long as the Respondent is unwilling to take a realistic look at his drinking, nothing has really changed and the child should not be forced to spend more time with the Respondent simply because he is persistent in making court applications.  Until these issues are more properly assessed and addressed, counsel for the Applicant asks that the status quo remain and that his client be the one to assess when it is in the child’s best interests for parenting time to increase and for it to be unsupervised.

[42]        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:

[43]        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.”

[44]        As a general rule, children have a right to a meaningful relationship with the parent that they do not reside with.  However, as the Supreme Court of Canada pointed out in Young v. Young (1993) 1993 CanLII 34 (SCC), 84 B.C.L.R. (2d) 1 (SCC), that objective may be restricted where the welfare of the child requires it.  Contact between the non-resident parent and his or her children is often restricted, made subject to conditions or even denied completely, where it presents a risk to the child.  The decision on whether or not to order supervised contact will depend on what is in the best interests of the children.

[45]        Some examples of when supervised contact (formerly supervised access) has been ordered as being in the best interests of children include:

[46]        As a result of a number of orders of this court, the Respondent’s contact with his child has required supervision, either by one of his parents, or by a professional supervisor.  This has been found to be necessary because of a number of concerns about the Respondent’s past behaviour.  These concerns include alcohol and substance abuse, relationship violence, failure to attend scheduled visits with the child, homelessness, and overall immaturity.  Before removing the requirement of supervision, it is incumbent on the Respondent to show that this requirement should be removed, not because it is in his best interests, but because it is in the child’s best interests.  One would expect that someone in bringing an application of this nature, someone in the Respondent’s position would be anxious to demonstrate, not by words, but by actions, that these concerns are no longer present, or are managed to the degree that supervision is no longer in the child’s best interests.

[47]        The most glaring concern in this case is the Respondent’s alcohol and substance abuse.  Although the burden rests with him to show that this is no longer an issue, he has been very evasive on this issue.  He refuses to give direct answers to questions about this issue.  The Applicant continues to assert that she has good reason to believe that the Respondent struggles with alcohol.  The Respondent does little more than deny this.  He has still not complied with an order of this court requiring him to submit to a hair follicle test regarding his use of Controlled Substances.  While the supervised visit reports do not expressly indicate signs of alcohol or drug use, there have been supervised visits that the Respondent cancelled on very little notice without explanation.  The Applicant does not present herself as someone willing to alienate the child from the Respondent and she has acknowledged his importance and the importance of the paternal grandparents in the life of the child.  It is not apparent that these concerns are manufactured on her part, or part of a scheme to sabotage the child’s relationship with the Respondent.

[48]        Given some of the places where past alcohol and drug use has taken the Respondent, this is an issue that cannot be ignored, in the best interests of this child.  In time between the making of this application and the trial of this matter, the Respondent has had ample time to demonstrate a willingness to address this issue, or alternatively to gather some objective evidence that there is no reason for concern.  But he has not done so.  He believes that this is not a concern because he asserts that to be the case and everyone should take him at his word.

[49]        Simply put, the Respondent has to decide which he loves more: his drinking and drug use, or his child.  As long as he remains secretive on the matter, he can’t have it both ways.  The places where his past misuse of alcohol and Controlled Substances have taken him make it impossible to take him at his word when he says “trust me, it’s not a problem.”

[50]        The Respondent was not being forthright with this Court when he feigned a lack of recall concerning the criminal charges he faced.  He did not acknowledge that he was the subject of a recognizance to keep the peace under the Criminal Code, a finding that the Applicant had reasonable grounds to fear for her safety from the Respondent as a result of his conduct.  While no further violence has been alleged, and while the Applicant has not expressed a present fear for her safety or the safety of the child, it is troubling that the Respondent does not demonstrate any insight into his conduct or express any willingness to learn from it.

[51]        The failure to attend past scheduled visits gives rise to an inference that this may be due in part to the Respondent not being able to attend those visits in a sober or fit condition.  His denial that this is the case is not sufficient comfort, in light of the Applicant’s evidence that this has been a problem in the past, and the Respondent’s evasiveness about the current state of his alcohol and drug use, especially in light of his ongoing refusal to comply with a court order requiring him to submit to hair follicle testing.

[52]        One area where the Respondent has demonstrated significant improvement is in his present ability to maintain a residence and to hold a job.  Further verification of this can be provided through ongoing financial disclosure.

[53]        In order to step into the shoes of a parent, it will be beneficial for the Respondent to demonstrate a higher degree of maturity than he has thus far.  At 37 years of age he relies on his parents for considerable support.  When a section 211 Report was ordered, the report writer had to make efforts to track down the Respondent.  He did not appear to make any effort to make himself available for the report, something inconsistent with someone who wants to be active in the life of his child.  The Respondent has lived with his parents for much of his adult life.  They have had to sacrifice their financial position to pay for his legal fees.  He has only recently returned to the work force, and is without a driver’s license.  While he insists that this can be rectified in short order, it continues to be a factor that hampers his independence.  At this stage of his life, all of this is a further indication that his alcohol use is more problematic that he lets on.  The Respondent’s father is likely correct when he expresses concern about the degree of parental enabling that is occurring in his son’s life.

[54]        The Applicant has full-time employment, is a foster parent to two teenagers, provides respite care for other foster children, and has entered into a new relationship with a partner who also has children.  It was therefore astonishing when the Respondent’s mother suggested in her evidence that on top of all of these responsibilities, the Applicant should also be responsible for bringing the child to his visits with the Respondent or should pay for this to occur.  It was another indication that the Respondent may be slow to take responsibility for those things that would enhance his role in his child’s life, because he has come to expect that others will do those things for him.

[55]        The paternal grandmother’s credibility was adversely affected in her description of the reason for the wilful disobedience to the order for supervised parenting.  She presented a tearful but false account of the child wanting to see the order broken as part of a manipulative effort to get the result she desired in these proceedings.  Conversely, the paternal grandparent presented as someone forthright in his testimony that it was he who brought the subject up with the child and who ultimately decided to ignore the court order.  As someone who has personal experience in recovery and has a stronger acquaintance with the concepts of rigorous honesty and personal responsibility, the paternal grandfather is someone whose guidance, advice and example, the Respondent would be wise to follow if he truly desires a greater parenting role in his child’s life.

[56]        One of the factors to be taken into account in assessing what is in the best interests of a child is the child’s views, the significance of which depends on the age and maturity of the child.  In this case, T.D.T. presents as bright and happy.  The Applicant has done a remarkable job of parenting him under less than ideal circumstances.  T.D.T. has told the Family Justice Counsellor that he still really doesn’t know his father.  He has a stronger bond with his grandparents.  Forging a relationship with T.D.T. would be another motivational reason for the Respondent to pursue the same life of sobriety that his father has done.  It would result in a healthier and happier relationship with T.D.T., something that has to be infinitely more valuable than any highs that the Respondent feels a need to hang on to as part of his current lifestyle.

[57]        T.D.T. does not yet think it would be good for him to spend more time with the Respondent, or to have overnight visits with the Respondent.  Nothing in the evidence presented at this hearing suggests that he is wrong about this.

[58]        The Family Justice Counsellor has suggested that a roadmap be provided for the Respondent to know what he has to do before he can play a greater role in his child’s life.  This is not an unreasonable request.  Before the Respondent can expect the need for supervision to be removed or adjusted and for his visits with his child to be increased, the following should take place:

[59]        Children are sponges, and they learn from the examples set for them by their parents.  Bringing this child into the world has bestowed on the Respondent the responsibility of being the best example of fatherhood that he is capable of.  This is all the more reason for the Respondent to seriously question the need for alcohol and other mood-altering substances in his life and whether whatever benefit he finds from them is worth impairment of his relationship with his child.  While the Respondent has been criticized somewhat for over-reliance on his parents, a healthy form of availing himself of their assistance would be for him to once again work with his father with a goal of achieving a clean and sober lifestyle.

[60]        In making the order that is now being made, it is intended that the Respondent’s contact with his child will increase in proportion to how he addresses the concerns which have been raised and the suggestions that have been made in these reasons.  If he acquires the willingness and demonstrates the ability to do so, it is hoped that the time he spends with his child will increase, to include more overnight visits, unsupervised, and he may even recover his guardianship.  It is also hoped that this will occur not through a string of court applications, but by the Respondent’s transition into responsible action and the Applicant’s recognition of this and her agreement to any changes to the order that are justified by the positive choices the Respondent makes in future.  The denial of the relief he seeks is intended to motivate him to make the changes that will give his child a healthier and happier family life.

[61]        For the foregoing reasons, it is ordered as follows: