IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The applicant, L.S., and the respondent, A.F., first met at the [omitted for publication] in 2014. A.F. was pregnant at the time, and the natural father was not involved. The parties’ relationship progressed to the point where they became intimate and stayed together for periods of time. Most importantly, L.S., his parents and his own son developed a relationship with not only A.F. but also her newborn child, M.D.

[2]         The sole issue in this case is whether L.S. should become a guardian of M.D. or at least have court ordered visits with him. By an application filed October 3, 2018, L.S. seeks guardianship of M.D. under s. 51 of the Family Law Act (”FLA”), or at the very least, he seeks contact under s. 59.

[3]         A.F. strongly opposes the application, and she has in fact not allowed L.S. to see M.D. since August of 2018 when sexual abuse allegations surfaced. She also has concerns with L.S.’s parenting style, his level of supervision over children, and his approval of children using air rifles.

[4]         This trial requires a determination of what is in the best interests of M.D. who is now 5 years old and living with his mother. Although L.S. is not the biological father of M.D., none of the parentage presumptions apply, and he is not even a step-parent as defined in the FLA, he submits he has acted as a parent to M.D. from his birth on [omitted for publication] until August of 2018.

[5]         L.S. is pursuing a relationship with M.D. because, in his view, the parties and M.D. were once a close knit - albeit unconventional - family. L.S.’s now 13 year old son, W., considered M.D. to be his brother. L.S. says he helped raise M.D., and the parties had discussed his long term role in M.D.’s life. While the parties maintained separate residences, they stayed together for long periods of M.D.’s infancy.

[6]         Conversely, A.F. submits that L.S. was often at work, and he became more of a daycare provider than a parent figure. He even collected child care subsidy benefits. The parties’ relationship ended abruptly when she became suspicious that he had sexually interfered with M.D. Previously, A.F. sought a protection order, and she even became ill during the trial due to the stress surrounding L.S.’s application.

[7]         It is open for me to appoint L.S. as a guardian of M.D. under s. 51, or to grant him contact time, so long as those orders serve M.D.’s best interests. The mother’s views and concerns must be weighed here, and I must make a determination about the sexual abuse allegation. While the mother’s opposition to the application is an important consideration, the law is such that her opposition cannot trump the best interests of the child M.D.

[8]         The natural father’s name was never disclosed in court, although I had the impression A.F. had some knowledge of his identity. Based on all the evidence, it was very clear that the natural father wanted nothing to do with M.D.

[9]         In closing argument, the mother’s counsel submitted that L.S.’s failure to serve the natural father was fatal to his application. I am concerned that this argument was raised only at the end of the trial, especially since I had made some inquiries about the natural father early in the trial and L.S. was self-represented.

[10]      I agree that service on a parent is a requirement for a guardianship application under Division 3 of Part 4 of the FLA, pursuant to section 52(1)(a) of the FLA. Interestingly, that section does not specifically apply to contact applications under Division 4. However, even with guardianship applications, s. 52(3) allows me to grant an exemption to a requirement to give notice under s. 52(1) if I consider it appropriate.

[11]      I consider it appropriate to exempt the requirement for service on the natural father, at least at this juncture. After hearing evidence over 7 days (not all of them full days), I am not about to simply dismiss this application without considering the merits. As indicated above, the natural father has never been involved with M.D. If I am inclined to make any orders in favour of L.S., I may require a brief continuation of the trial with notice to the natural father, assuming his identity is known and assuming he wishes any input.

[12]      L.S. is 40 years old, and he is a truck driver and mechanic. But for a brief period in Fort McMurray, he has lived in [omitted for publication], B.C. his entire life.

[13]      L.S. has had two significant romantic relationships in his life. He had a dating relationship with C.P., who is the mother of his 13-year-old son, W.  C.P. testified that they dated for 12 years, and they separated 8 years ago when W. was 5 years old. They have a good co-parenting arrangement.

[14]      C.P. described L.S. as a calm and non-aggressive person. She was never afraid of him and never thought W. could be harmed by him. L.S. usually has care of W. each week from Friday after school until Monday before school.

[15]      L.S.’s second romantic relationship was, of course, with A.F.

[16]      A.F. is 30 years old, and when the parties met in 2014, she was a waitress at the [omitted for publication] in [omitted for publication].

[17]      Ms. M. testified that she was the owner of the café. A.F. would often stay at Ms. M.’s home in [omitted for publication] when she was working, then she would return to her home in Surrey the days she did not work. A.F. was pregnant when she moved out of Ms. M.’s home in mid-2015. Ms. M. only knew L.S. as a customer at the café.

[18]      Ms. K. testified that she was A.F.’s former foster mother. She has been a support for A.F. to this day.

[19]      A.F. was sexually abused in her past.

[20]      L.S. first met A.F. in the fall of 2014 when she was a waitress at the [omitted for publication]. Through conversations at the café, they became friends. L.S. learned that A.F. was pregnant and the father was not around.

[21]      A.F. travelled between the café and her home in Surrey, and as indicated above, she often stayed at the home of her employer, Ms. M., in [omitted for publication].

[22]      L.S. introduced A.F. to his son W. at the café. While A.F. was pregnant, L.S. says he discussed with her sharing a child together. In the spring of 2015, A.F.’s father died, and she stopped working at the café. The parties’ relationship progressed quickly at this time.

[23]      A.F. met L.S.’s parents at their farm in [omitted for publication] in April of 2015. A.F. and L.S. shared a bed and had sexual relations at that time.

[24]      Nearer the time of M.D.’s birth, A.F. asked L.S. to consider sharing the parental duties for the baby. They discussed parenting together but not necessarily living together. A.F. was impressed with L.S.’s parenting of W., but they had different opinions on other topics such as marihuana use.

[25]      M.D. was born on [omitted for publication]. A.F. asked L.S. and W. to attend the birth. Ms. P. confirmed this fact in her evidence, and she said W. soon considered himself to be M.D.’s bigger brother. W. is 8 years older than M.D.

[26]      For a few months following M.D’s birth, L.S. spent some nights at A.F.’s home in Surrey while working between Mission and Surrey. He helped care for and feed M.D. A.F. also visited [omitted for publication], bringing M.D. to friends and to L.S.’s parents.

[27]      Both L.S. and his mother, D.S., testified that A.F. eventually referred to D.S. as “grandma.” She also referred to L.S. as “daddy.” D.S. said that M.D. would spend nights at her home, and I gathered from the evidence that L.S. was not always present. A.F. often dropped off M.D. at their place before L.S. had come home from work.

[28]      Over the next few years, A.F. would also spend nights at the home of L.S.’s parents. M.D. loved spending time on their farm scooping manure and chasing roosters. D.S. felt as close to M.D. as she was to W.

[29]      Although A.F. was sometimes uncomfortable around L.S.’s father, she never said M.D. could not be at the parents’ farm. L.S. testified that he did not leave M.D. overnight at his parent’s home without him being there at some point. He and M.D. stayed with his parents when A.F. went on a holiday to Cuba.

[30]      In the fall of 2015, L.S. took up different employment hauling woodchips for S.M. Mr. M. had separated from his spouse and needed help with the care of his children in [omitted for publication]. L.S. and A.F. offered to stay at the M. home during the week, and A.F. often cared for M.D., the three M. children and sometimes W. This arrangement became too taxing on A.F. and the parties’ relationship, so it ended in December of 2015.

[31]      L.S. acknowledged that he did sign paperwork allowing him to claim a child care subsidy for M.D. He was aware that family members who live with the mother are not eligible for this subsidy. L.S. testified that he was never comfortable claiming the subsidy, and he only did so at A.F.’s insistence. There are text messages to support his assertion. He says he did not prepare the documentation, and he thought the claim was for the period from December of 2015 until March of 2016.

[32]      L.S. ultimately stopped claiming the subsidy, and he wanted to return monies earlier received but was informed of difficulties in that regard. The child care subsidy form shows that L.S. made claims for 4 days and 2 days in November of 2016, 18 days in December of 2016, 20 days in January of 2017, 11 days in February of 2017, and a further 9 and 18 days between January and October of 2017.

[33]      In 2016, M.D. spent much of his time at A.F.’s home in Surrey and at the home of L.S.’s parents in [omitted for publication]. L.S. was concerned that he was not on M.D.’s birth certificate, and he felt there were times when A.F. “held M.D. over him” when there were conflicts.

[34]      When M.D. was one year old in 2016, he did start to stay alone with L.S. overnight in [omitted for publication]. The parties would share the transportation between Surrey and [omitted for publication]. L.S. had M.D. overnight on dozens of occasions until August of 2018.

[35]      In July of 2016, A.F. sent a text message to L.S. indicating that it was not too late for him to change his mind about being in M.D.’s life. In a responding text, L.S. said that he had no intention of giving up on M.D. Text messages were also exchanged about visiting schedules for M.D. A neighbour in [omitted for publication] named Ms. C. testified that she thought L.S., A.F. and the children were a happy family in 2016.

[36]      According to L.S., A.F. began to play a large role in W.’s life. She had known W. since he was seven years old, and she later parented W. She walked him to school and made his lunch.

[37]      W. and M.D. were also very close, and the boys spent most of their time together at L.S.’s home. A.F. had stricter rules at her Surrey home, such as not wearing shoes inside. W.’s mother, Ms. P., confirmed in her evidence that W. blossomed in his role as M.D.’s bigger brother, and it broke his heart that he could no longer see M.D. In a 2015 text message, Ms. P. expressed her concern that W. could get caught in the middle, and unfortunately, that is exactly what happened.

[38]      L.S. took many photographs of M.D. in his early life and they were made exhibits at this trial. He has photographs of W. and M.D. at the M. residence in 2015. There are pictures of M.D. at L.S.’s home for a 4 day visit in the winter of 2015 when A.F. did not stay overnight. M.D. in fact still has a bedroom at L.S.’s home. In the late summer of 2016, pictures depict M.D. walking at the farm of L.S.’s parents. For 2017, L.S. has photos of W. and M.D. in his backyard, as well as many other examples of the children engaged in activities there.

[39]      A.F. was not comfortable with L.S.’s photograph of W. and M.D. peeing in a yard with their backs to the camera. They were clothed. In my view, this photograph was not of concern, but clearly the parties had conflicting standards.

[40]      L.S. testified that he, A.F. and M.D. participated in holidays together as a family. He also bought M.D. some clothes and passed on some of W.’s clothes to him. The parties even discussed preschool for M.D.

[41]      According to L.S., when A.F. became stressed or overwhelmed by M.D.’s behaviour, she would phone him to pick up the child from her home.

[42]      A.F. has raised the issue about L.S.’s ability to properly supervise M.D. L.S. contends that he did not leave M.D. or W. unattended. He was always nearby.

[43]      He pointed out that W. and M.D. did not share a bed. Ms. P. testified that L.S. was an attentive parent, although he had too much stuff in his house and yard.

[44]      L.S. did raise his son W. in a home with firearms. Currently, he only has air rifles. At age 13, W. handles air rifles, and he has sat in on two firearms courses.

[45]      At age 3, M.D. was exposed to air rifles but he was told not to handle them on his own. A few times, he held an air rifle across his lap under supervision, but he never shot an air gun. In the summer of 2018, M.D. watched W. and L.S. shooting air rifles in the backyard. M.D. was allowed to load pellets into W.’s air rifle under L.S.’s supervision.

[46]      W.’s mother testified that W. had a BB gun, but L.S. ensured that W. handled the gun safely and that it was safely stored.

[47]      Although he was a little evasive on this point, L.S. testified that he knew A.F. was not pleased with M.D. being around guns of any kind. However, she never explicitly said that M.D. could not be around guns. On one occasion, it was A.F. who took one of his guns to her Surrey home and she was upset. L.S. wrote her a letter indicating that firearms are not toys and should not be handled in anger.

[48]      L.S. was involved in some of M.D.’s health care. He went to the [omitted for publication] Health Unit with M.D. on a few occasions. He also took M.D. to the [omitted for publication] Hospital in 2017 when he observed M.D.’s penis to be swollen. He clarified that bruising appeared later, after the hospital visit. L.S. hypothesized that M.D. may have hurt himself when the opened top of a tricycle seat compartment came down and struck his genitals. The doctor noted nothing concerning.

[49]      A.F. was not informed of this hospital visit until the next day. L.S. said he did not phone her the day of the hospital visit because she was either sleeping or at work.

[50]      In February of 2018, the parties exchanged texts about guardianship planning in the event of A.F.’s death. L.S. realized that if he became a guardian of M.D., he could be required to pay child support.

[51]      L.S. agrees that the parties never officially shared a residence, and he was never a tenant at A.F.’s home in Surrey. He never claimed A.F. as a spouse on his tax returns. Nevertheless, he considered the parties to be in an exclusive relationship until 2018.

[52]      Some of the evidence from A.F. and L.S. about the relationship aligns, so I will focus here on key areas where their evidence differs.

[53]      A.F. agreed she first met L.S. at the [omitted for publication] in November of 2014 when she was 3 months pregnant. The parties’ first night together was on Mother’s Day in 2015. A.F. testified that L.S. asked for his name to be on M.D.’s birth certificate even before M.D. was born. She said she was open to discussing the topic but never agreed to the request, as she did not want to lie to her child.

[54]      A.F. told L.S. that if he did not show up for the birth, she would not pursue a relationship with him. She did not invite W. to the birth. M.D. was born on [omitted for publication].

[55]      Between July and September of 2015, L.S. only spent two or three full nights at her Surrey home. He came over to her home more often, but usually for just a few hours while on his way to work.

[56]      From October to December of 2015, A.F. primarily stayed at the M. home and L.S. came over occasionally for dinner. A.F. testified that L.S. only spent a handful of full overnights there. She was the one paid by Mr. M. to watch his children and look after the home five to six days per week. L.S. was busy driving a truck for Mr. M. on cross shifts. A.F. and M.D. slept there, and L.S. visited and sometimes slept there for a few hours. He had to care for his dog at his home, as his dog was not allowed at the M. home. Sometimes W. visited the M. home in the day, but he usually did not want to be there.

[57]      A.F. has an entirely different perspective of the relationship between W. and M.D. W. was very possessive of his father, and he often did not want M.D. to be with them. When M.D. was four months old and W. was around nine years old, W. placed M.D. on top of a wooden Halloween costume and left him there screaming. A.F. told W. that he should know not to have an infant sit alone in that manner. L.S. later said that W. would never do such a thing.

[58]      According to A.F., W. has also left M.D. unattended in a front yard when M.D. was under two years of age. Moreover, W. has hit and kicked at M.D. because he was unhappy M.D. was spending time with his father.

[59]      A.F. believes that W. is afraid of his father and that he is always trying to please him. L.S. condoned W. saying harsh words about his mother, Ms. P., and he allowed W. to use foul language. That being said, A.F. acknowledges in a text that she has been mean to W.

[60]      When the M. arrangement ended, A.F. stayed in Surrey. Between January and May of 2016, A.F. said that the parties were on a break in their relationship. By then, their relationship was more off than it was on. A.F. was concerned about W.’s behaviour, the cleanliness of L.S.’s house and his lack of punctuality. He would often call for a visit but show up 5 hours later.

[61]      Between May of 2016 and December of 2018, A.F. rented a suite at [omitted for publication] in Surrey. Under the terms of her tenancy, visitors could only stay a maximum of 2 days with permission. L.S. only spent a handful of individual overnights during the entirety of her residential lease. More often, he showed up for a few hours in the night.

[62]      Later in 2016, A.F. began work at a dry cleaning business, and she would send M.D. to L.S. for overnight visits. M.D. would often stay at L.S.’s home for 4 days. L.S. claimed the child care subsidy for his care of M.D. from November of 2016 until October of 2017. A.F. believed the subsidy was completely appropriate as she and L.S. were not then in a romantic relationship, and she could not afford to pay for daycare. L.S. may not have read the form he signed, but he was not coerced into making the claim. When he ultimately refused to make further claims for child care, she found another daycare. Currently, M.D. thrives in a daycare run by K.D.

[63]      During this time when L.S. was claiming the subsidy and caring for M.D., A.F. did not want L.S. to allow M.D. to call him “daddy.” However, L.S. would tell M.D. “now son, your mom wants me to be called L.”, and she felt he never truly respected her wishes. Earlier in her relationship with L.S., she did refer to L.S. as “daddy” in front of M.D. L.S. had pushed hard to be referred to in this way.

[64]      After October of 2017, L.S. still spent time with M.D. A.F. was concerned that he was still being referred to as “daddy”.

[65]      A.F. testified that she made it very clear that she did not want M.D. around guns. She in fact took one of L.S.’s guns because she was so upset that he allowed M.D. to play with it. She was also distressed to learn from W. that M.D. had been loading pellets in a gun after she made it clear this was not to happen.

[66]      A.F. was troubled that she was not immediately contacted when L.S. took M.D. to the hospital regarding his swollen penis. He knew she was at work, and she easily could have been contacted. The parties also disagreed about whether M.D. was tongue tied.

[67]      A.F. set up a RESP for M.D. and L.S. never contributed to this RESP. L.S. also did not share expenses for M.D. He primarily bought clothes for W. and some were passed down to M.D. A.F. was troubled by the fact that L.S. always allowed M.D.’s outfits to be ruined. After visits at L.S.’s home, M.D. would return with his clothes full of grease or burns from campfires. A.F. ended up giving L.S. a bag of clothes for M.D. to wear at his home.

[68]      A.F. recalled an incident when she got off work early and found L.S. in the bath with M.D. and W. L.S. covered himself in a towel and chased after her wanting a hug. She wanted him to back away and to respect her boundaries. When he did not, she smashed some windows.

[69]      On a Friday in August of 2018, A.F. brought M.D. to L.S. for a weekend visit, and the parties had supper at a chinese restaurant in [omitted for publication]. M.D. referred to L.S. as “daddy.” L.S. could tell that something was troubling A.F., and she stated that she suspected someone had touched M.D. inappropriately. When he asked if she suspected this touching happened while M.D. was in his care or the care of his parents, she said she did not know.

[70]      L.S. did not know if A.F. was being serious or just mean. A.F. did say that from now on, L.S. would be known to M.D. as L. She also said this may be his last visit with M.D.

[71]      A.F. did not object to L.S. taking M.D. to the bathroom, and M.D. actually spent the weekend with L.S. and W. A.F. was visiting a friend in [omitted for publication], and she did not request the return of M.D. on Saturday night.

[72]      A.F. stayed at the home of L.S.’s parents on Saturday night, and L.S. returned M.D. to her there. He also made M.D. a lunch for the next day.

[73]      A few days later A.F. indicated by text that the relationship was over, and L.S. was not part of M.D.’s life and was never to see him again. He has not seen M.D. since August of 2018.

[74]      L.S. denies abusing M.D. in any way. He also questions the disclosure where M.D. refers to him as “bad Daddy” to a therapist. He feels A.F. pushed this disclosure. M.D. made no disclosure to the RCMP or the Ministry, and he made no specific disclosure to Dr. Korn.

[75]      Previously, A.F. did say that M.D. and W. should not bathe together due to the age gap. She did not want M.D. around nakedness, and she raised this issue in texts in 2018. L.S. says W. would not abuse M.D., and he has never seen W. harm M.D.

[76]      On occasion, M.D. did hit the dog, W. and his own mother. Even A.F. raises the concern about M.D. hitting people in a text message. A.F. was also concerned when M.D. would poke at her private parts.

[77]      W.’s mother, Ms. P., testified that she was never concerned for W.’s safety while in L.S.’s care. She described L.S. as a reasonable and calm parent. She never saw W. act out in a sexual manner. She depicted L.S. as a free spirit with more liberal bedtimes. Ms. P. did not agree with the suggestion that L.S. emotionally abused W.

[78]      L.S.’s mother testified. She worked with the school board and was a Brownie leader and a former foster parent. She described her son as a loving and caring father. L.S. had never before been accused of being sexually inappropriate. Prior to August of 2018, A.F. never expressed concern to Ms. S. that her son or her grandson W., ever physically or sexually abused M.D.

[79]      According to Ms. S., A.F. was very cautious and did not like M.D. running around naked. A.F. did speak to Ms. S. about abuse she suffered in her own past. Ms. S. also recalled a time when M.D. was two years old and he chased his mother around with his penis out. Ms. S. felt that this incident was nothing to worry about, and she told A.F. it was best not to make a big deal about such things.

[80]      In August of 2018 at the chinese restaurant in [omitted for publication], A.F. informed L.S. that she was concerned about M.D.’s sexualized behaviour. When L.S. asked if she thought he or his parents “did it”, she responded that she did not know. She was surprised that L.S. did not ask if M.D. was okay. She allowed M.D. to go to the washroom with L.S. and to stay with him for the weekend, because she was trying to see the good in people.

[81]      Following this last visit with L.S., M.D. made statements to A.F. which caused her great concern. When she was getting him ready for daycare, he grabbed her hand and put it on his penis. He humped her hand. This was not the first time he had engaged in this type of behaviour. When A.F. yelled at him to stop, M.D. said, “Why Mom, daddy likes it when I touch his penis.”

[82]      A.F. became extremely upset, so much so that she was concerned she was traumatizing her own child. She called her former foster mother, Ms. K., about the disclosure. Ms. K. told A.F. to contact the police and the Ministry and she did so. The police investigation was inconclusive. The Ministry felt there was no need to intervene because A.F. was cutting off contact with L.S.

[83]      M.D. was referred to the Heal Clinic in Surrey, which is Fraser Health’s suspected child abuse and neglect team. Dr. Korn prepared a report on October 9, 2018, after examining M.D. M.D. presented as a healthy three-year-old boy, and his anogenital examination was normal. This observation neither validates nor negates the possibility of abuse. M.D. was referred to Options for counselling.

[84]      Following M.D.’s disclosure, A.F. felt she would not be supporting her son if she continued to stay in her home in Surrey. She did not feel safe there, and she worried L.S. could be following her. A.F. suffers from PTSD, and she was concerned that the same thing was happening to her son as had happened to her. She quit her job and did not give her landlord 30 days’ notice to end her lease.

[85]      A.F. moved to Alberta and spent Christmas of 2018 at her aunt’s home there. She was alarmed when she learned that L.S. had phoned her aunt’s home thanking her aunt for being there for A.F. and M.D. She ultimately decided to return to B.C.

[86]      M.D.’s disclosure adversely affected A.F.’s mental health. She felt anxious and unsafe. She took advantage of some counselling.

[87]      On September 24, 2020, in the middle of trial, A.F. vomited outside of the courtroom. She tested negative for COVID, and explained that her illness was due to stress and the fact that she had not taken a sedative that day. She is under the care of a psychiatrist, Dr. Louw, who wrote a letter indicating that A.F. is stable overall with fluctuations in anxiety levels. Dr. Louw has no concerns regarding A.F.’s fitness as a parent. I bear in mind Dr. Louw’s comment that court proceedings have negatively impacted A.F.’s mental health, and her medications have been adjusted.

[88]      Kaela Blahey gave evidence, and she is a sexual abuse therapist who has worked with Options since 2013. She has a master’s degree in counselling psychology, and she is a registered clinical counsellor for M.D. During trial, I qualified her to provide clinical observations of M.D. However, she was not a registered psychologist, and as such, she could not speak to causation or investigative matters.

[89]      M.D. was referred to the sexual abuse counselling programme at Options on September 7, 2018. In addition to testifying, Ms. Blahey wrote a letter dated August 8, 2019, concerning M.D. Ms. Blahey completed an intake assessment with A.F. in October of 2018, and A.F. reported that M.D. began displaying sexualized behaviours in August of 2018, following his time with L.S. Ms. Blahey learned of M.D.’s disclosure that “daddy likes it when I touch his penis.”

[90]      The counselling for M.D. did not begin until March of 2019, and the therapy modality used in M.D.’s treatment was play therapy. M.D. and Ms. Blahey have had 15 sessions, and there are parent support sessions with A.F.

[91]      On July 18, 2019, M.D. made a disclosure during his session with Ms. Blahey. This is an excerpt from her clinical notes for that session:

[92]      When this disclosure was made, Ms. Blahey did not see any signs that M.D. was coached. She has heard no other disclosures about L.S. The disclosure was reported to the Ministry.

[93]      Ms. Blahey indicated that M.D. displays behaviours which are not normal for his age group and which are consistent with other children in the sex abuse counselling programme. He displayed symptoms such as anxiety and anger, bedwetting, hypervigilance, and crossing body boundaries. These symptoms may be the result of stress or abuse. Ms. Blahey did say his symptoms were consistent with a post-traumatic stress response.

[94]      M.D. is progressing in his therapy and his symptoms have decreased. His improvement is fragile and he needs to feel physically and emotionally safe.

[95]      A.F.’s former foster mother, Ms. K., testified about events following August of 2018. She was the one who advised A.F. to make a report to the police and the Ministry about M.D.’s first disclosure. Ms. K. was aware that after August of 2018, A.F. and M.D. moved suddenly from Surrey to Alberta. She observed that A.F.’s physical and mental health deteriorated at that point.

[96]      When A.F. moved back to B.C., she and M.D. lived with Ms. K. for eleven and one half months. Ms. K. saw that M.D. was rebellious and inappropriate with his mother but not with her. M.D. would attack A.F.’s body, and Ms. K. redirected M.D. to obey his mother. M.D.’s behaviour greatly improved while he was staying at the K. home.

[97]      Before directly addressing L.S.’s guardianship application, I must make certain findings of fact regarding L.S.’s relationship with M.D. and the sexual abuse allegations.

[98]      First, I do find on a balance of probabilities that L.S. had at one time a parental relationship with M.D. I base this finding on the testimony of the parties, L.S.’s mother, W.’s mother, and on the admissions made by A.F. In July of 2016, A.F. states by text to L.S. that it is not too late for him to change his mind about being in M.D.’s life, and she was concerned that he not back out when M.D. gets older. She also texts about visiting schedules for M.D. As late as February of 2018, she is texting L.S. about guardianship planning for M.D.

[99]      I have also considered the many photographs depicting L.S. as a caregiver for M.D. Although he never formally cohabited with A.F., L.S. was more to M.D. than a family friend. Although he signed for the child care subsidy, he was more than a daycare provider. A.F. certainly allowed M.D. to spend nights alone at L.S.’s home in [omitted for publication]. His parents also cared for M.D., and A.F. herself stayed at his parents’ home often. I accept that L.S.’s parents were referred to as “grandma” and “grandpa.”

[100]   Notwithstanding A.F.’s vascillating resistance to L.S. being called “daddy”, several witnesses confirmed that A.F. often referred to L.S. in that way. Ms. P. also verified that W. considered himself to be M.D.’s older brother.

[101]   Secondly, I find that the parties’ relationship was on and off, and there was friction even before M.D.’s disclosure. While A.F. tended to minimize L.S.’s role with M.D., L.S. tended to minimize any discord that arose in the relationship. The parties had different views on M.D.’s relationship with W., M.D.’s exposure to air rifles, and M.D.’s supervision in general. The parties had different standards regarding nakedness. A.F. was concerned that she was not told of M.D.’s visit to the hospital with L.S. In general, she was equivocal about L.S.’s role as “daddy.”

[102]   The third contentious area is the sexual abuse allegation. This issue is the most difficult and most troubling. I am satisfied that M.D. displayed some sexualized behaviours based on the evidence of the therapist, the mother and even L.S.’s mother. I am pleased to hear that his behaviour is improving.

[103]   I am also satisfied that M.D. made a disclosure to his mother in August of 2018 and to the therapist in July of 2019. M.D. disclosed that he touched L.S.’s penis and other details.

[104]   However, I do have many concerns about the specific allegation that L.S. sexually abused M.D. As will be explained below, this finding may not particularly assist L.S. when I view his guardianship application as a whole. The fact is A.F. fears for the safety of M.D. should he be anywhere near L.S., and L.S.’s court application has literally made her sick. Her fears are not without some foundation.

[105]   My concerns about the allegations against L.S. are as follows. First of all, the mother herself must have initially doubted the allegations because, in August of 2018, she not only allowed L.S. to take M.D. to the washroom, she also allowed him to care for M.D. for the entire weekend. I appreciate that she said she did not have the full disclosure until after this weekend, but even before then, she was acutely concerned about M.D. having been sexually abused.

[106]   Secondly, according to his mother, L.S. had no history of being abused or abusing anyone else. Ms. P. said that she completely trusted L.S. with their now 13-year-old son, W. I appreciate that an abuser can pick and choose his victims, and I view L.S.’s history as but one factor.

[107]   Thirdly, A.F. never raised any sexual abuse allegations until August of 2018. M.D. had already been sexually acting out against A.F., and she was having difficulty coping with this behaviour. L.S.’s mother witnessed M.D. chasing A.F. with his penis out, and Ms. S. thought it best not to make a big deal of it. A.F. was sexually abused herself, and she had great difficulty dealing with this sort of behaviour.

[108]   Fourthly, the only third party to hear M.D.’s disclosure was the therapist, and that was almost a year later. I have no evidence that the police, the Ministry, or Dr. Korn received any form of disclosure. I acknowledge that M.D. was only 3 years old and a failure to disclose is not determinative by itself. The disclosure to Ms. Blahey is peculiar in that M.D. qualifies the abuser as “bad daddy,” and it is possible that he heard others speak of the incident with those moral qualifiers.

[109]   Finally, I found L.S.’s testimony about his care of M.D. to be generally reliable and credible.

[110]   As I have said, while I see many concerns with the allegation that L.S. sexually abused M.D., I am satisfied M.D. made disclosures to that effect. At this point, one may never learn if M.D. was acting out sexually due to abuse or due to stress. The uncertainty regarding the allegation adds yet another layer of difficulty and complexity to L.S.’s application for guardianship. To put it more plainly, the allegation is a possible nail in the coffin of the application.

[111]   L.S. is not the biological father of M.D., so he is not a parent of M.D. pursuant to s. 26(1) of the FLA. Because L.S. is not a parent, he cannot be presumed to be a guardian under s. 39 of the FLA. A.F. is a guardian of M.D. by virtue of s. 39(1).

[112]   L.S. can only become a guardian of M.D. by being appointed one under s. 51. Under s. 51(2), he must provide evidence to the court, in accordance with the Provincial Court (Family) Rules, respecting the best interests of M.D. in s.37 of the Act. Rule 18.1 of our Rules requires a guardianship affidavit in Form 34 to be filed, and L.S. has done so in this case. The real issue is whether it is in M.D.’s best interests for L.S. to be appointed his guardian. Alternatively, even as a non-guardian, L.S. could be granted contact with M.D. under s.59 so long as that contact serves M.D.’s best interests.

[113]   Courts have long wrestled with applications by non-parents for guardianship or contact. Deference to custodial parents, now usually the “guardians,” has been recognized in the case law. Cases such as Chapman v. Chapman, 1993 CanLII 2598 (BCSC) have held that the custodial parent has a significant role. Courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied it is in the child’s best interest. That case also ruled that it is not in the best interest of a child to be placed into circumstances of real conflict between the custodial parent and the nonparent.

[114]   When the FLA came into force in 2013, a court dealing with parenting arrangements or contact was required to consider only the best interests of a child under s. 37. Under the former Family relations Act, s.24 required a court to give “paramount consideration” to the best interests of the child. The court in M.S. v. G.S., 2013 BCSC 1744, focused on the different wording under the FLA and concluded that authorities such as Chapman, cited above, would not necessarily result in a decision in full accord with the best interests of children.

[115]   Nevertheless, recent decisions from our Supreme Court and Provincial Court have held onto and applied key principles in Chapman. In Kalafchi v. Yao, 2015 BCSC 1152, the court held that while deferring to the guardian’s decision about contact with a non-guardian may be in conflict with the emphasis in the FLA on the best interest of the child, the other principles established by Chapman remain valid.

[116]   In D.D. v. A.C., 2017 BCPC 5 (CanLII), our court concluded that deference to the guardian parent’s views is a relevant consideration, but the guardian’s views cannot trump the best interests test. The B.C. Supreme Court in Fawcett v. Read, 2016 BCSC 310, took the same approach. In that case, a former live-in boyfriend was denied contact with a child at the appellate level, even though he saw the child 100 times post-separation and the child was upset at the end of the parties’ relationship. The appellate court noted that the boyfriend’s relationship with the child was not a long one, and continued access to the child would not promote stability. It had the potential to complicate things later on, and there was sometimes significant conflict between the parties.

[117]   Based on the above, I will be considering L.S.’s guardianship or contact application with only the best interests of M.D. in mind, but I will be taking into account the views of A.F.

[118]   Under s. 37 of the FLA, I am to determine M.D.’s best interests by considering such factors as his health and emotional well-being, the nature and strength of the relationships between M.D. and significant persons in his life, the history of his care, and his need for stability. I must also examine the abilities of the parties to exercise parental responsibilities for M.D. Notably, I am to weigh the appropriateness of arrangements requiring cooperation between potential guardians.

[119]   In terms of M.D.’s health and well-being, Dr. Korn did indicate M.D. was a healthy boy at age three. Although M.D. did act out at an early age, in many ways he thrived in the setting he found himself in with both A.F. and L.S. A.F. observed that M.D.’s acting out, sexually and otherwise, intensified in the summer of 2018. Now in 2020, M.D.’s acting out behaviours have greatly diminished according to Ms. K. Moreover, the therapist observed that M.D. was progressing in his counselling, but he needed to feel emotionally and physically safe.

[120]   Based on those observations, it is best not to expose M.D. to further disruption or possible conflict if at all possible. It goes without saying that M.D. must be in an environment free from abuse of any kind. Even if I considered L.S. a good caregiver, and even if I discounted the sexual abuse allegations, a resumption of L.S.’s visits with M.D. at this time would likely be detrimental to M.D. Any form of visitation schedule would engender immense conflict between the parties, and as a consequence, stress for M.D. The court proceedings alone have made A.F. physically ill.

[121]   I next examine the history of M.D.’s care, his need for stability, and the strength of his relationships with others. I can confidently say that L.S. was at one time an important parental figure in M.D.’s life. M.D. undoubtedly had some good experiences in [omitted for publication] with L.S., his parents and W.

[122]   But A.F. was always M.D.’s primary caregiver. Furthermore, any relationship between M.D. and L.S. ended over two years ago. M.D. has moved on and so has W. Like it or not, the nature of L.S.’s relationship with M.D. has now been darkened by a cloud of suspicion, and M.D.’s disclosure is troubling. Cracks in the parties’ relationship were evident earlier, and these related to the parenting of M.D. The differing views on air rifles comes to mind.

[123]   Apart from the sexual abuse allegation, this case does not really turn on the abilities of the parties to exercise parental responsibilities. Based on all the evidence, L.S. had a loving relationship with not only his son but also M.D. During M.D.’s infancy, L.S. and his family were a regular part of M.D.’s life. I was not overly troubled by L.S.’s supervision of M.D. or the presence of air rifles. However, differing views on these matters only served to stoke the fires of mistrust between the parties. A.F.’s view of L.S. is now so coloured by the allegations that any working relationship is beyond repair.

[124]   That leads me to my final point. I cannot conceive of any way in which I could order a parenting arrangement or even visitation where the parties would cooperate. Their relationship was already fracturing before the sexual abuse allegations surfaced. Once the allegations surfaced, A.F.’s physical and emotional health deteriorated. I am glad to hear she is recovering. M.D. cannot be subject to an arrangement which will inevitably produce tension and fear for his safety. His progress could be jeopardized.

[125]   Based on the above analysis, L.S.’s application for guardianship or contact with M.D. is not now in M.D.’s best interests. L.S.’s application filed October 3, 2018, is dismissed. No submissions were made respecting the counterclaim, so it is also dismissed.