IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20110728

Docket: E84767

Registry: Kelowna

Between:

D.S. and J.S.

Plaintiffs

And:

L.E.K.F. and
J.W. and J.W. as
Executrix for the Estate of T.A.S.

Defendants

Before: The Honourable Madam Justice
Gray

Oral Reasons for
Judgment

In Chambers

[1]            
THE COURT: The applications before me relate to
two girls. The younger is 10 years old and the older girl is nearly 13 years
old. I am going to refer to them together as "the girls." The mother of
the girls passed away in May 2009 at the age of 29. The claimants are the
maternal grandparents of the girls. The first respondent, L.F., is the father
of the girls. J.W. is the executrix of the estate of the girls’ mother and was
appointed guardian of the girls under that will. At the time the mother passed
away, she had sole custody of the girls. The applications are for interim
orders regarding custody and guardianship and access.

[2]            
I will briefly
outline some of the more important facts. The two girls lived most of their
youngest years with their parents. In the year 2003, their mother became a
close friend with the executrix, J.W. They were students together in a nursing
program. In November 2005, the girls’ mother, T.S., was in a serious motor
vehicle accident. She spent a period of months in hospital, including
rehabilitation hospital, and she suffered some brain damage. During the period
that T.S. was in hospital and for a period afterwards, the girls stayed with
their maternal grandparents. They stayed there from November 2005 to June 2006.

[3]            
In June 2006, the
girls resumed living with their mother. They stayed there for about nine
months, but in October of 2006, the Ministry of Children and Families became
involved. They were concerned about T.S. using drugs and they were concerned
about T.S.’s relationship with L.F. and that he had been violent towards T.S. Through
the actions of the Ministry of Children and Families, the girls were removed
from the care of their mother and put into the care of their maternal grandparents
for a period of about seven months. That period was October 2006 through May of
2007. T.S. was unhappy not to have her children with her, and she may well have
blamed her parents, the maternal grandparents, for this change in the
children’s living arrangements.

[4]            
The children were to
live back with their mother starting in May 2007 and stayed with her until the
time that T.S. passed away in May of 2009. During that time, the girls did not
have much contact with the maternal grandparents, but did have some.

[5]            
It was on May 18,
2009 that T.S. passed away and, as I have said, at that point, J.W. as
executrix was legal guardian of the girls. J.W. placed the girls with the
maternal grandparents after discussion with the girls about living arrangements.
There were several options discussed and one of them was living with J.W.
herself.

[6]            
J.W. is now a
registered nurse, and she is presently living in Whitehorse, Yukon. The girls
had been living in the Okanagan area.

[7]            
In my view, it was
a wise decision that J.W. made to put the girls in the custody of their
maternal grandparents. The girls have been living with their maternal
grandparents since their mom passed away, so that is for a period of about
two-and-a-half years.

[8]            
At present, D.S.,
the maternal grandmother, and J.S. are 56 and 63 years old. The girls are in
school and they are achieving high grades. This is particularly impressive with
respect to the older girl, because she had struggled and had needed learning
assistance earlier in her school career. The maternal grandmother is active in
the girls’ school and in a ringette program. The girls are busy and involved in
a number of activities.

[9]            
There was an order
made that the principal residence of the children would be with the maternal
grandparents on an interim basis. I have already said that the executrix, J.W.,
is a nurse living in Whitehorse.

[10]        
The natural
father, L.F., did not appear on this application. Counsel advised that he was
served under the Rules by documents being sent to the address that was on the
court record. L.F. was previously represented by counsel, but then there was a
notice that he was going to act in person and it was to the address in that
notice that documents were sent. They were returned so I expect that L.F. has
no actual notice of this application. He has had little contact with the girls
in the last year or so, and it just amounted to a phone call or a text message.
L.F.’s own mother does not know where he is right now and neither do the
maternal grandparents.

[11]        
So this case has
raised a difficult and unfortunate situation, although many good things appear
to have developed for the girls. The maternal grandparents have been raising
the girls. J.W. has been a guardian trying to discharge her duties long
distance.

[12]        
The role of a
legal guardian who is not a parent is unusual in our society, and it is not
surprising that the parties did not immediately know how to cope with that kind
of relationship. In this case, there have not been issues of a significant
nature in what are the usual conflicts in guardianship issues. For example,
there has been no conflict about where the children should actually reside, no
conflict about where they should go to school, and no conflict about what
decisions should be made in respect of healthcare.

[13]        
There have been
two areas of friction. One is with respect to the children’s contact with J.W.
and her own family. J.W. wants to be close to the girls. She wants to have a
close relationship and to know what is going on with them. Meanwhile, the
grandparents want the children to have stability in their residence and want to
parent them without fear that the children will be removed to some other
residence.

[14]        
J.W. heard things
from T.S. about T.S.’s own upbringing. That is, of course, hearsay and it is
difficult to assess that for any reliability. I will simply summarize that T.S.
did say at some time that her own parents treated her poorly when she was
younger, and that she did not want her own parents to be involved in raising
the girls, and she wanted J.W. to be the legal guardian of those girls.

[15]        
I will say that
the evidence of what has actually occurred for the girls suggests that they are
flourishing. As I have said, they have done well in school. In addition, there
is affidavit evidence from T.S.’s sister to the effect that she thought her
upbringing, being parented by the maternal grandparents, was a fine and happy
childhood.

[16]        
It is not
surprising that J.W. would want contact with the girls, particularly because
she is charged with the obligation to be their legal guardian, but the contact
in this case has been difficult. It is not entirely clear why that has occurred.
It is likely that some of the friction arises from the different views about
how the guardianship relationship would work.

[17]        
It is also likely
that some of it has arisen from what J.W. heard from T.S. about the maternal
grandparents. The parties on this application are having problems with respect
to what contact J.W. should have with the girls. I will say more about this,
but the girls, in fact, have said to the maternal grandparents, and also to —
I believe it was a psychologist who gave a "Views of the Child"
report, that they were — I would say they felt pushed to see J.W. more than
they wished to see her. The report does not say, "psychologist," it
says, "therapy and consulting."  So the person — I am not sure that
the person who did the "Views of the Child" report was a
psychologist, but it appears that she has a Masters of Education and is a
registered clinical counsellor.

[18]        
There is also some
friction that has arisen with respect to dealing with T.S.’s estate. T.S. died
owning a farm property in the A area and the children had some belongings there.
There have been some hurt feelings in dealing with the estate. That has
included the girls being unhappy to learn by seeing a sign that the property
was for sale and also some delays in the girls getting access to some of the
belongings that they wanted to take to their home with the maternal
grandparents. The communication between J.W. and the maternal grandparents has
essentially broken down. I have read quite a lot of email correspondence
between the grandparents and J.W., but communication worsened and there has essentially
been no contact in the last six or seven months.

[19]        
The question of
custody is something that the parties before me are prepared to consent to. The
question for me in determining custody is what is in the best interests of the
children. I am satisfied that it is in the best interests of the children for
the maternal grandparents to have interim sole custody of the girls and, with
the consent of J.W., I make that order.

[20]        
I then turn to the
question of guardianship. I will begin with the Family Relations Act,
R.S.B.C. 1996, c. 128, s. 30. I will read s-ss. (1) through (4)
into the record:

30(1)    Subject
to this Act, a court may, on application,

(a)        appoint a guardian, or

(b)        remove from office a
guardian appointed or acting by virtue of this Part or a deed or [a]
testamentary appointment.

(2)        If a child is over 12 years
of age, a court must not make or give effect under subsection (1) to an
appointment unless

(a)        the child consents in
writing to the appointment

(3)        A person other than the
father or mother of a child must not, under subsection (1)(a), be appointed
guardian unless the court is satisfied that each parent of the child consents
in writing to the appointment or, if a necessary consent has not been given,
that

(a)        the parent who could give
or withhold consent is not reasonably available, or

(b)        the consent is being
unreasonably withheld.

(4)        An
order must not be made under subsection (1) unless the present and prospective
guardians have been given notice and an opportunity to be heard in the
proceeding.

[21]        
So this is an
application under subsection 30(1)(b) to remove a guardian acting pursuant to a
testamentary appointment. With respect to subsection (2), the older child, who
is over 12 years of age has given a consent in writing to the appointment of
the maternal grandparents as her guardians. She also had independent legal
advice in connection with providing that consent. Pursuant to subsection (3), I
cannot appoint the maternal grandparents guardian unless I am satisfied that
each parent of the girls either consents in writing, which is not the case here
or, if the necessary consent has not been given, that:

(a)        the parent who could give
or withhold consent is not reasonably available, or

 (b)        the
consent is being unreasonably withheld.

[22]        
With respect to
consent from the father, L.F., I am satisfied that he is not reasonably
available. He was a party to these proceedings. He has not participated. He has
not kept the court records up to date about where he is. He could have contacted
other parties in this litigation. In light of his failure to pay attention to
his daughters, I am satisfied that he is not reasonably available.

[23]        
The other parent,
T.S. of course, has passed away, but the question is whether J.W., essentially,
is unreasonably withholding consent to change the guardianship from herself to
the maternal grandparents.

[24]        
The question I
must ask myself is what is in the best interests of the children and I will
just read s. 24(1) of the Family Relations Act:

(1)        When making, varying or
rescinding an order under this Part, a court must give paramount consideration
to the best interests of the child and, in assessing those interests, must
consider the following factors and give emphasis to each factor according to
the child’s needs and circumstances:

(a)        the health and emotional
well being of the child including any special needs for care and treatment;

(b)        if appropriate, the views
of the child;

(c)        the love, affection and
similar ties that exist between the child and other persons;

(d)        education and training for
the child;

(e)        the
capacity of each person to whom guardianship, custody or access rights and
duties may be granted to exercise those rights and duties adequately.

[25]        
I will go through
those subsections. In respect to the health and emotional well being of the
girls, they appear to be flourishing in the present arrangement with the
maternal grandparents, although there have been concerns about how much contact
they should have with J.W.

[26]        
That brings me to
(b), the views of the children. I have the evidence of the clinical counsellor
about the views of the children. It is clear that the children wish to continue
living with the maternal grandparents. It is also clear that they have felt
some pressure to see J.W. and they have felt she has not understood their views
in respect of seeing her.

[27]        
Subsection (c)
refers to "the love, affection, and similar ties that exist between the
child and other persons." Fortunately, in this case, the children are
loved. They are loved by their maternal grandparents, also by extended family
including their maternal aunt. The maternal grandparents have made efforts to
ensure that the girls have contact with members of L.F.’s family. The girls have
had contact with his mother and his sister and her family. It is also, in my
view, clear that there has been a loving and affectionate relationship between J.W.
and also her mother and the girls. That arose during the time that T.S. was
alive and was estranged from her parents, and, in that period in particular,
there was time spent by the girls with J.W. and her family.

[28]        
Subsection (d)
refers to, "education and training for the child." The children are
in school and there is no suggestion about any concerns there.

[29]        
Subsection (e)
refers to, "the capacity of each person to whom guardianship, custody or
access rights and duties may be granted to exercise those rights and duties
adequately." As I have said, in this case, T.S. made comments during her
lifetime that were negative about the capacity of the maternal grandparents. However,
all the other evidence before me is that the maternal grandparents are doing an
admirable job in trying to raise their granddaughters and that the
granddaughters are flourishing. The only real area of concern has been the
relationship with J.W. and her family.

[30]        
The position of
the maternal grandparents is that they should be given sole guardianship on an
interim basis. The position of J.W. is that she should be the sole guardian of
the person of the girls or, alternatively, that there should be joint
guardianship of the girls.

[31]        
The reasons to
make the guardianship sole to the maternal grandparents include the fact that
it may give some comfort to the girls. They have had a life with some periods
of instability. They were moved away from their mother and back through the
actions of the Ministry of Children and Families. Of course, they have lost
their mother. Their relationship with their father has been poor. While there
is an existing order for principal residence, there has also been some concern
by the girls that they have been forced to have more contact with J.W. than
they wanted. There is also some evidence that suggests that the girls may have
had some fear that J.W. would change their living arrangements.

[32]        
Children sometimes
develop that kind of fear without it being planted in their heads by anyone. So
I am not attributing that fear to the maternal grandparents. I think it is more
likely that the girls, because of having been moved against their mother’s will
through the actions of the Ministry of Children and Families, may feel some
instability about where they would live.

[33]        
Another factor is
the practical aspects of guardianship. In December 2010 or January of 2011, one
of the girls, I believe it was the older girl, was in a sporting accident. She
went to hospital. Because the maternal grandparents were not her guardians,
there was some uncertainty about who could give instructions with respect to
their treatment. This is one of the problems of the maternal grandparents
having custody but not having guardianship.

[34]        
The factors that
might suggest joint guardianship would be to enable J.W. to supervise and see how
well the children are doing and ensure that they are properly placed.

[35]        
I have given
serious thought to the possibility of joint guardianship. I have considered
that children of the age of about 13 often benefit from the views of another
adult rather than those people who are raising them in their immediate family.
However children of such an age usually seek help or advice from trusted
adults, whatever the legal relationships might be.

[36]        
In the
circumstances of this case, in my view, it is appropriate to make an order of interim
guardianship solely to the maternal grandparents, but to do so on the basis
that there will be at least the potential for continuing contact between the
girls and J.W. and her family.

[37]        
As I have said, J.W.
was a friend of T.S.’s, and she was a sufficiently trusted friend that T.S.
wanted her to be the legal guardian of her girls. J.W. did have some contact
with the girls, particularly during the period that T.S. was estranged from the
maternal grandparents. The contact appeared to be a fair bit of contact in
holiday periods and weekends. That probably seems like a lot of contact to a
working person such as J.W., but may seem like less contact to young girls, and
particularly as their memories fade of things that occurred some years ago. There
was also contact with J.W’s mother and, from what I can see on the evidence, the
contact was positive contact.

[38]        
In my view, there have
been conflicting views about how to deal with the legal guardianship, but
overall, it appears that it is in the best interests of the girls to have some
contact with J.W. and her extended family including her mother.

[39]        
The solution that
I am going to order is that the maternal grandparents are to require the girls
to provide a minimum of three days of suggested visits with J.W. in every
six-month period. If the girls either do not give dates or do not go on the
suggested dates, then the girls must be taken to counselling to address what it
would need to take to restore the relationship with J.W. so that the
relationship can improve.

[40]        
My hope is that by
ordering this minimum number of days of contact, the relationship between the
girls and J.W. will be restored and can develop, and that the girls will have
another caring adult and her family in their life as some support. My hope is
that the girls will not view their relationship with J.W. as any kind of forced
relationship or as something that threatens the stability of their home life
with the maternal grandparents.

[41]        
I will say that I
think there have been some unfortunate communications. I think there have been
different views about how much the children should make decisions about things
like where the horses should board and the like. I hope the parties will be
able to put that behind them and focus on the best interests of the children.

[42]        
To summarize, the
order is that, by consent of the parties here, the maternal grandparents will
have sole interim custody of the girls, and not by consent but by my order, that
the maternal grandparents will have sole interim guardianship of the girls, and
that there will be access on the basis that I have just described.

[43]        
Having heard that,
is there anything else?

[44]        
MR. DYCK: 
With respect to my friend’s suggestion about J.W.’s ability to contact
alternate caregivers and doctors and that sort of thing and be apprised of the
children’s lives, I do not —

[45]        
THE COURT:  Thank
you for reminding me of that. I think this is by consent, that J.W. will be
entitled to directly contact third party caregivers, and that would include
counsellors and doctors and schools. Ms. Moore, can you consent also that
your client will advise J.W. of the names of any such third party service
providers?

[46]        
MS. MOORE: 
Sure, on a yearly basis or something?  Like every year provide if a doctor
changes or immediately if a doctor changes, they will advise or something like
that?  I am just trying to think of —

[47]        
THE COURT:  I
would think within 30 days of a new person being involved to advise J.W. So if
that could be by consent —

[48]        
MS. MOORE: 
Yes, My Lady.

[49]        
THE COURT:  — I
will make that part of the order. Is there anything else, counsel?

[50]        
MS. MOORE: 
Costs, but it looks like both of us have been successful in respect of
applications, so, but I know we both have costs before us and I am not entirely
sure if my friend is moving forward — part of his application included my
clients — to compel my clients to provide information as to support or are you
moving forward on those particular items?

[51]        
MR. DYCK: 
No.

[52]        
MS. MOORE: 
Okay.

[53]        
MR. DYCK:  I
would submit that each party bear their own costs, My Lady.

[54]        
THE COURT:  All
right. You do not have any different submission?

[55]        
MS. MOORE: 
You know, I have — obviously this is something that my clients have wanted to
move forward with for a while, but I have — they — I think they have been
substantially successful, but I understand there are competing notices of
application before Your Ladyship and both of them were successful and, in those
general cases, you will find that parties bear their own costs. Unless you have
something that you would like to add, I cannot really — I know  what the
general findings in the law are on those split decisions, so.

[56]        
THE COURT:  All
right. In my view, this is a case where each party should bear its own costs. That
will be the costs order.

“Gray J. edited for privacy”