IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Director ( the “Director”) under the Child, Family and Community Service Act (the “Act”) presently seeks a six month supervision order pursuant to section 29.1 of that Act against the Mother, described below, and for a six month protective intervention  order pursuant to section 28 of the Act against the Father, described below. These applications are both in connection with the female child of their relationship (the “Child”) namely:

[2]           The Child is presently just over two years of age and was approximately a year and half at the commencement of the proceedings before me.

[3]           The parents of the Child (the “Parents”) namely, S.J. (the “Mother”) and L.J. (the “Father”) both oppose the Director’s applications.

[4]           The Father is a registered sex offender having being convicted for sexual offences against three separate young female family members going back several years. As part of his criminal sentences he has served periods of actual incarceration and has received sex offender treatment.

[5]           The Ministry of Children and Family Development (the “Ministry”) became involved with the Parents in January of 2013 just after the Child’s birth.

[6]           The Mother, age 30, is of aboriginal heritage and is a member of a First Nations band on the east coast of Vancouver Island.  The Child is also a member of that First Nations band.

[7]           The Father, age 43, is also of aboriginal heritage and is a member of a First Nations band located on the west coast of Vancouver Island.

[8]           The Parents have been in a relationship since March of 2010 and lived together for extended periods up to the birth of the Child. Much of that time together occurred while they were residing in Port Alberni, B.C.

[9]           The Father on one hand and the Mother and Child on the other, presently live separately off of reserve, close to each other in the same neighbourhood in Nanaimo B.C. 

[10]        Social workers attended the Mother’s home on January 24, 2013 after learning that the Father was a registered sex offender and the Mother and Father shared the same address in Nanaimo. The Mother was living with the Child. The Mother admitted to the attending Social Workers Klaws and Guthrie that she was in a relationship with the Father but denied they were residing together. This was contrary to reports received by the Ministry and was also contrary to the observations of the interior of the residence made by the social workers.

[11]        During the January 24, 2013 home visit, the social workers discussed the Ministry’s child protection concerns relating to the Father’s criminal convictions for sexual offences against young children. The social workers were concerned that the Mother may not be fully conversant with the details of these offences and concluded that she appeared to be minimizing the seriousness of these child protection concerns.

[12]        Social Worker Guthrie met with the Father to discuss the protection concerns relating to his past sexual offence convictions. The impression gained by the Ministry officials at the initial meetings was that the Father was not entirely forthcoming when presented with the opportunity to discuss these convictions and the treatment that he had received to deal with his serious offending behaviour. Additional information was sought from the Father.

[13]        The Father was told by the social workers that the Ministry would not permit the Father to reside with the Mother and the Child. He admitted his relationship but denied residing with the Mother.

[14]        The Father agreed to provide the Ministry with collateral information regarding his completed programs and treatments in which he had participated following his sexual offence convictions. As time passed following the initial contact with the Father and the Mother, the Ministry officials concluded that the Father was continuing to be resistant and was not forthcoming in that regard. This was very concerning for the Ministry.

[15]        On February 18, 2013 the Ministry was notified that the Father was in the process of bringing on an application under the Family Relations Act (“FRA”) for an order for access to the Child. The Ministry also learned that the Mother was supportive of the Father’s application, including the Father “living in the home”.

[16]        The Director believed that the Child was in need of protection. Those protection concerns were based on the provision of section 13 (b) of the Act which says protection for a child is needed where the child has been or is likely to be sexually abused or exploited by the child’s parent .

[17]        Therefore the Director sought to obtain a supervision order without removal of the Child from the Mother. 

[18]        At the presentation hearing held on March 18, 2013 an order was made pursuant to s 33.2 of the Act (the “March 2013 Order”) that the Director supervise the Child’s care pending a protection hearing.

[19]        In the March 2013 Order, five main conditions were imposed by the court on the following supervision terms:

[20]        The two further provisions of the March 2013 Order stated that the Director must remove the Child for failure to comply with the terms in conditions 1, 2 and 3; it also stated that the Director may remove for failure to comply with terms in conditions 4 and 5.

[21]        On October 25, 2013 the Mother, the Father and the Director attended a mediation with Ministry representatives and thereafter entered into an Agreement Made at Mediation (“the Mediated Agreement”) in written form. Social Worker Michelle Sharun, who had assumed conduct of the matter in August of 2013, signed on behalf of the Director as the Director’s delegate.

[22]        The Mediated Agreement contained important provisions for the following: access for the Father; the Mother’s supervision of the Father’s access time; the Father spending time at the residence of the Mother and the psychological evaluation of the Father.

[23]        With respect to access to the Child by the Father, it was agreed that such access with the Child must be supervised by a Ministry approved supervisor, and further required that when the Mother learned that access was to take place she was to contact the social worker who had conduct of the file by telephone or by text messaging and provide that information. If there was no verbal response then the telephone message or text message was deemed to be sufficient. Failure to send the telephone or text message was deemed to be access in violation of condition 3 of the supervision order.

[24]        In order to transitions the access such the Mother would eventually be able to supervise the Father’s access time with the Child the Mediated Agreement states as follows:

[25]        Under the heading “[The Father] Spending Time at the Residence of the Mother” it states that the Father is entitled to spend a maximum of one overnight visit per week at the Mother’s home if and only if the Child was staying with a caregiver at an alternate location. The caregiver has to be a person not previously ruled out by the Ministry as being unsuitable. Furthermore, the Mother is obliged to telephone or text the Social Worker prior to the overnight visit in order to advise of that overnight visit. The same provision applies that no verbal response from the Social Worker deems the telephone message or text message to be sufficient notice from the Mother.

[26]        Specific provisions are made such that the Ministry will only approve the Father having access at Sunday church service, cultural events and at Christmas provided an approved supervisor is present during that access time.

[27]        Under the provision entitled “Psychological Evaluation of [the Father]” it provides as follows:

[28]        The final provision contained in the Mediated Agreement indicates that it is to be filed with the court and that the parties would enter into a section 60 consent order for a three month supervision order on agreed terms.

[29]        On October 28, 2013, as contemplated by the Mediated Agreement a three month supervision order (the “October 2013 Order”) was made pursuant to s 41(2.1) of the Act without the removal of the Child and with the consent of the Parents pursuant to s 60 of the Act. That order was on the same terms as the March 2013 Order.

[30]        On March 21, 2014 Social Worker Ashley Patten, who then had conduct of the file, was informed by the Mother that the Father had not visited with the Child for several weeks but also that the Mother intended to maintain a relationship with the Father notwithstanding her knowledge of the Father’s past sexual offences and the expressed protection concerns of the Ministry. At that point, the Ministry social workers were concerned about the lack of communication they had received from the Father and the apparent continuing lack of his full disclosure of the details of the sexual offences to the Mother and also his lack of self-identification of the risks that his past sexual offending posed to the Child.

[31]        The October 2013 Order for supervision had expired by March of 2014. Therefore the Director reapplied on April 7, 2014 for a new three month supervision order on the same terms as the October 2013 Order, which were the same terms contained in the March 2013 Order. That application is now contested by the Parents. 

[32]        The Director also made application for a six month Protective Intervention Order against the Father under s 28 (3) of the Act.  Specifically under ss 3 (a) the Director seeks to prohibit the Father from “contacting or interfering with or attempting to contact or interfere with the [Child] or from entering any premises or vehicle or boarding any vessel that [the Child] attends without the prior written permission of the Director”.

[33]        Also, under ss 3(b) the Director seeks to prohibit the Father “from residing with [the Child] or from entering any premises or vehicle or boarding any vessel where [the Child] resides, including any premises or vehicle or boarding any vessel that [the Father] has a right to occupy, without the prior written permission of the Director”.

[34]        The application for the Protective Intervention Order is also contested by the Parents.

[35]        On March 31^st 2014 at a presentation hearing a further order under s 33.2 was made that the Director supervise the Child’s care pending a protection hearing (the “March 2014 Order”). The same conditions set out in the March 2013 Order and October 2013 Order were once again imposed.

[36]        The protection hearing under section 40 of the Act (the “Section 40 Protection Hearing”) proceeded before me on October 1, 2 and 3, of 2014.

[37]        As a result of the testimony of the Mother on October 3, 2014 it became apparent that the Mother had sometime previously switched apartments with the Father, such that she moved into his and he into hers, but without complying with the requirement of condition 4 contained in the March 2014 Order requiring the prior approval of the Director before changing residences. 

[38]        She also testified about at least one brief encounter on the street between herself and the Father when she had the Child with her but they were not in the presence of an approved supervisor. She denied any other unsupervised contact between the Father and the Child that had been reported to the Ministry. The Director considered this brief encounter to be a breach of condition 3 in the March 2014 Order being the requirement that the Father only have supervised access to the Child as approved by the Director.

[39]        As a result of the alleged breach of condition 3, the Director proceeded to remove the Child in accordance with the “must remove” provision of the March 2014 Order. After a brief appearance before me on October 7, 2014 I made an order (the “October 2014 Order”) that the Child was to be returned to the Mother but subject to the same conditions for supervision contained in the March 2014 Order except that condition 3 was changed to read as follows:

[40]        The protection hearing was adjourned to November 19, 2014.  On November 14, 2014 the Director filed a new application now seeking the six month supervision order, rather than a three month supervision order, on the same terms contained in the October 2014 Order.

[41]        With the consent of all of the parties it was agreed that this Section 40 Protection Hearing and the November 14, 2014 application would be conducted concurrently with the continuation of this Section 40 Protection Hearing.  All matters were adjourned over to January 22, 2015 for further evidence and submissions.

[42]        It was the hope of the Mother and the Father and their respective legal counsel that sufficient financial resources could be arranged, through the Father’s band, in order to obtain an updated professional report containing a psychological evaluation on the Father in order to assess his risk of committing further sexual offences. Those financial resources could not be arranged and hence no new report was produced and placed before the court at the January 22, 2015 continuation.

[43]        A Court Plan of Care was prepared and filed with the court initially on April 8, 2013.  Updated Court Plans of Care were prepared and filed on June 26, 2014 and November 19, 2014.

[44]        The relevant common themes of each of the Court Plans of Care are:

[45]        The June 26 and November 19, 2014 Plans of Care both list as an outstanding need of the Child as follows:

[46]        The June 26, 2014 Plan of Care lists the Mother’s participation in the “Little Warriors” program as an agreed service being provided to the Mother by the Ministry. The stated goal was to help the Mother “identify the signs/impact of sexual abuse on children and families”.

[47]        The evaluation method/criteria is expressed as follows:

[48]        The June 26, 2014 Plan of Care further notes under the heading “ Form of Parent’s Involvement in Plan of Care” that the Mother and the social worker had phone conversations and several meetings to discuss the Ministry’s concerns pertaining to the Father and specifically with respect to his past offenses and regarding his visitation with the Child.

[49]        Under the provision for the Parent’s views about the Plan of Care it notes that the Mother was originally reluctant to agree with the social worker’s plans as she was “uninformed on the entirety of [the Father’s] sexual offenses and history”.

[50]        However it goes on to note that she is “now informed of [the Father’s] history and is in agreement to have visitation supervised by an approved person approved by the Director to ensure [the Child’s] safety.”  The Mother’s cooperation with the Ministry and the social worker is confirmed.  However, it is observed that the Father “refuses to engage with the [social worker] or acknowledge the [Ministry] concerns”.

[51]        The November 19, 2014 Court Plan of Care describes the agreed services as “counselling” and the goal of the service as to:

[52]        The evaluation method/criteria indicates that the Mother is to have an understanding and be able to articulate the impact of sexual abuse and how it puts children at risk.

[53]        Under the heading of the “Form of Parent’s Involvement in Plan of Development”, the same provision as noted in the June 26, 2014 Plan of Care appears but then adds the important observation that the Father has not engaged with the social workers aside from being present in court.

[54]        The provision concerning the Parent’s views of the Plan of Care references the same provision contained in the June 26, 2014 Plan of Care about the Mother’s cooperation but then adds that the Mother no longer wants to have the visits between the Child and the Father supervised.  It then goes on to say that the Father “refuses to engage with the social worker or acknowledge [the Ministry’s] concerns, aside from attending court”.

[55]        The Child has no special needs. There are some medical concerns about a heart murmur which are being followed up appropriately. The Child has regular consultations with the local child development center and there are no developmental concerns.

[56]        The evidence of the Ministry social workers is that the Mother provides the Child with a loving and nurturing home environment.  There are no concerns noted by the Social Workers in their observations of the Mother and the Child together.

[57]        Ministry officials have had very limited opportunity, if any, to observe the Father’s interaction with the Child, especially in recent times due to the Father’s withdrawal from engagement with the social workers, but Social Worker Sharun has observed positive interaction between the Child and the Father during her involvement in the matter.

[58]        Protection concerns relating to the Father’s past sexual offenses remained a concern at the date of the hearing with respect to the Child.

[59]        The Mother was born and raised in Nanaimo, BC. She has extended family living locally including three sisters and their families. She avoids contact with people and those of her family members who struggle with alcohol issues, which at various times has included her own parents.

[60]        The Mother was previously known to the Ministry prior to this matter. The Mother’s first daughter H, (“H”) now age 8, who is the product from a different relationship with [D.W.] (“D.W.”), was made the subject of a continuing custody order (“CCO”) in January of 2011 following a significant period of Ministry involvement. The Ministry’s concerns in that case centred around domestic violence in the Mother’s relationship with D.W., D.W.’s mental health issues and with alcohol abuse issues of the Mother. I understand that the H presently lives with other family members of the Mother.

[61]        In 2008 the Mother underwent treatment for her alcohol abuse. She had a period of sobriety and then moved to Port Alberni at the suggestion of her then social worker, as I understand it, to remove herself from the triggers that led to her alcohol abuse and also from those with whom she drank.

[62]        However, she continued to drink while in living in Port Alberni. She met the Father while there in March 2009 and their current six year relationship started to develop.

[63]        When they met, the Mother was engaged in taking steps to achieve and maintain her sobriety. She attended Alcoholics Anonymous meetings. However, I understand that she continued to suffer some relapses.

[64]        The Father asked her to stay away from him if she was drinking. As a result of these boundaries imposed by the Father, the relationship was interrupted from time to time when she did in fact leave in compliance with the Father’s request.

[65]        In 2011, as I further understand it after the making of the CCO, she recognized the negative effects that alcohol was having on her life and on that of her child H. Therefore she commenced a period of sobriety which has continued to present date. She credits the Father with providing her with the necessary encouragement and support in order to seek and maintain sobriety, which remains a frequent topic of discussion between them.

[66]        The commencement of her own sobriety coincided with the strengthening of their committed relationship especially during the last two years. They want to get married. They have not resided together in the same residence throughout the entire duration of their relationship. I understand that this was partly as a matter of their choice and while she was seeking sobriety and also because of the present requirements of the Ministry.

[67]        In her testimony the Mother describes that in their present relationship the Father is a loving partner, who is “clean and sober”, that they are madly in love and want to be together. She says that the Father has been sober for 7 ½ years and therefore his sobriety predates her own by several years. She anticipates that this mutual sobriety will continue in the future.

[68]        In 2010 she became aware from a member of the Father’s family that the Father had a criminal record for a sexual offense.  She apparently broached the subject with the Father.  He confirmed that he was a sex offender and he apparently showed her his lifetime sex offender registration card.

[69]        Understandably this came as quite a shock to the Mother especially because she was in love with the Father and living with him at that time.  Having received this disclosure from him, she immediately left his presence, walked for a few hours to deal with her distraught emotions and also to reflect on and assess their relationship.

[70]        She says that she returned and told the Father that she thought they could work through this situation, even though she wished to have a child with him.  She understood from him that he was reluctant to have another child because of his concern that the Ministry might remove that child because of his sexual offender past.  They apparently ultimately agreed that it was their wish to grow their own relationship.

[71]        In her testimony the Mother confirmed that prior to the birth of the Child she knew very little about the circumstances of the Father’s sexual offending, his victims, their family relationship with him or their ages.  She testified that she was not comfortable about confronting the Father to learn more about these details.  Similarly, the Father did not offer much in the way of details.  Accordingly, she described that she learned more about the circumstances in “bits and pieces”.

[72]        However, at the time that she first met with Ministry officials after the birth of the Child and in response to their questions she indicated she knew about the Father’s criminal record as a sex offender and further confirmed that she told the Ministry social workers that she was not concerned about that record.

[73]        The evidence of the Ministry social workers was that they were very much concerned about the lack of information that had been shared by the Father with the Mother concerning his past criminal convictions for sex offenses.

[74]        The Mother was quite imprecise with the Ministry about when she actually became aware of the specifics of the circumstances and the nature of the sexual offenses.  During her testimony she was able to provide a significant amount of information about both.  She indicated that she has now had the opportunity of reading documentation pertaining to these convictions.  I also note that she was present during the testimony of the Father in the Section 40 Protection Hearing, during which time the details of his sexual offences were canvassed including admissions of penis-vaginal intercourse as part of his sexual abuse of his half- sisters.  She subsequently provided her own testimony after having heard the amplified details.  No doubt she now has a substantial amount of information about several things of which she was previously unaware and certainly unaware at the time of the Ministry’s initial involvement following the birth of the Child.

[75]        In her evidence the Mother made note of the fact, based on the information that she has received, that all of the incidences involving the Father’s sexual offence convictions involved his use of alcohol and drugs.  Therefore she indicated that she would be very concerned if the Father once again started using drugs or alcohol.  When asked what she would do in that case in order to deal with the child protection and safety concerns, she said that she would ask him to leave and then qualified her answer by saying that it could be for a very long time and “that may never end.”

[76]        The Father was raised both on and off at least two reserves, moving quite frequently often under the auspices of the child protection authorities including the native child protection authority USMA.

[77]        He is the eldest of two natural children.  There are apparently six maternal and four paternal half-siblings and step siblings.  His parents separated when he was about 3 years of age. His own Mother died accidently of carbon monoxide poisoning at a ferry terminal on her way to a drug and alcohol rehabilitation program.  He was only approximately 7 years of age. This tragic death apparently resulted in the breakup of the larger family, all of which was very traumatic for the Father.

[78]        His parents suffered from alcohol abuse issues and there were allegations of child neglect.  He was taken into care at an early age and raised for a period of time by his maternal grandparents.  The native child protection authority, USMA, was a constant part of his life growing up.  Apparently his relationship with USMA was very strained for a number of years, both while the Father was growing up and as I understand it once the Father himself became a parent.

[79]        Besides the Father’s own testimony there is further evidence about his background in a Pre- Sentence Report prepared August 7, 2001 (the “2001 Pre-Sentence Report”). It was prepared for the Father’s sentencing for his sexual offences against his sisters.

[80]        In addition there is an accompanying psychological assessment dated May 17, 2001 prepared by Dr. Edward A. Clarke a registered clinical and consulting psychologist (the “2001 Psychological Assessment Report”). The Father was age 29 at the time of the preparation of these two reports.

[81]        There are a number of other reports  completed on the Father that are referred to below including a Forensic Sex Offender Assessment Report completed April 14, 2009  by B.C. Mental Health & Addiction Services ( the “2009 FSO Assessment Report”)

[82]        The 2001 Pre-Sentence Report describes the Father’s life growing up as unstable and chaotic.  It appears from the various reports that this lack of stability and chaos prevailed both in his childhood and in adolescence.  At various times the Father was estranged from his native community and he was not welcomed on the reserve because of his past offending conduct.

[83]        The 2001 Pre-Sentence Report confirms that he dropped out of school in grade 11.  Thereafter, he held a number jobs working in construction, a fish plant and other fisheries related jobs.  He has relied upon social assistance.  The Father was fired from various jobs because of alcohol abuse issues.  The Father was also trained as a band newsletter editor, which job he left because of conflict with those in charge.

[84]        At present time, the Father works steadily and puts in lengthy hours including a lot of overtime through a local labour contractor in Nanaimo.  He has enjoyed success with that employer.  His employment is presently a significant priority and an important part of his life.

[85]        The 2001 Pre-Sentence Report and the Father’s own testimony detail a very highly challenged history of alcohol substance abuse that started when the Father was 16 years of age.  He also used illicit drugs and according to 2009 FSO Assessment Report he suffered from a cocaine addiction for a number of years.

[86]        At approximately age 27 he commenced to have periods of self-directed abstinence from alcohol use.  In 2007 he completed a residential treatment program for substance abuse. During the completion of the 2009 FSOP Assessment Report he self-reported that he had not used drugs for an extended period of time and had been attending Alcoholics Anonymous meeting for 22 months.  The Father testified that he had a leadership role in a number of these types of self-help and rehabilitative programs.

[87]        At the time of this Section 40 Protection Hearing the Father testified that he has remained abstinent from alcohol for a period of some 7 years, having learned that he was unable to control himself with alcohol and could not have just a couple of drinks.  He apparently came to that conclusion after the events that gave rise to his third conviction for sexual assault against his niece that occurred in 2007. In his evidence he said he made a decision in one of his programs that he never wanted to drink alcohol in the future and he has remained abstinent since then. He stated that he is “pretty confident” that he will not drink in the future.

[88]        The 2001 Pre-Sentence Report confirms that the Father was in at least significant three relationships prior to his relationship with the Mother. The first relationship was a teenage relationship starting when he was about 13 that lasted for about 8 years and produced a child.  The second relationship started when he was age 21 with a 17 year old partner which lasted three years and which produced a child.  At age 24 he started a six year relationship with a 15 year old girl which also produced a child.  Two of the children remain with their biological mothers.  One child was removed by the Ministry or USMA from that child’s mother.  There are apparently historical restrictions on the Father’s access to these other biological children.

[89]        Hence this is another source of historical conflict in the Father’s relationship with child protection authorities.  The 2001 Psychological Assessment Report indicates that at the time of its preparation that the Father expressed “a lot of resentment and animosity towards USMA”, while appearing that he also relied upon them for support, both emotional and financial.

[90]        The Father has a number of criminal convictions starting with a theft under $1000 in 1991, an assault causing bodily harm in 1995, in 1997 a mischief under $5,000, a firearms storage offence and an uttering threats and in 1999 a breach of undertaking.

[91]        In 2001 the Father was sentenced on two serious charges of sexual assault dating back to 1990 and to 1997 involving two separate victims.  One of the victims was apparently around the age 13 at the time of the offence and is a half- sister of the Father.  The other victim who apparently was also a half-sister who was around age 11 at the time of the offence.  The Father was age 19 at the time of the first offence and age 26 at the time of the second. 

[92]        According to the 2001 Pre-Sentence Report the information obtained by the author, Probation Officer Dave Paruk, indicates that both victims loved and looked up to their older half-brother preceding the offences.  The sexual offences were devastating to both young victims.

[93]        Both sexual assaults took place in the context of a drinking party on the Father’s home reserve. The Father’s intoxication from alcohol and possibly the use of illicit drugs were common factors in both offences. The Father was sentenced to one year of jail and placed on probation for a period two years on each offence.  It appears that sentences ran concurrently.

[94]        Following his release the Father was subsequently convicted in 2002 and 2003 of four breaches of his probation order and sentenced to one day in jail on two of the convictions and fines on the other two.

[95]        The 2009 FSO Assessment Report and the Father’s own testimony confirms that he completed at least part of that sentence at the Stave Lake Correctional Centre and from November 2001 to May 2002 partook in what I understand to be a group therapy program, sexual offender counselling as well as a relapse prevention program.  The Father testified that the felt “rushed” in his counselling and rehabilitation at Stave Lake Correctional Centre, which he says was then in the process of being shut down.

[96]        It is not entirely clear specifically what sex offender programs or counselling or other rehabilitative and relapse prevention programs the Father took while on probation for two years and including up to 2007.  Among other things the 2001 Pre-Sentence Report recommended completion of sex offender counselling, and family violence and drug and alcohol counselling as directed by his probation officer.

[97]        In 2004 he was charged with sexual interference of a person under age 16 and an invitation to sexual touching involving a person under 14 years of age.  The Father testified the complainant was a 9 or 10-year-old niece.  I understand those matters went to trial and he was acquitted in January 2005 on both charges.  It is noteworthy that the 2009 FSO Assessment Report references a 2004 charge, trial and acquittal involving the Father’s “biological 7 year old daughter”.  This discrepancy as to the alleged victim’s relationship with the Father was not canvassed during the hearing before me.

[98]        The Father also admitted that further allegations were made against him regarding the touching of the leg, buttocks and vagina of a young girl.  Identity was apparently an issue in that case and the charges never proceeded to court.

[99]        In 2007 he was charged with sexual assault.  It resulted in a January 2008 sentence of 18 months in jail, probation for one year and an order to comply with the Sex Offender Information Registration Act.

[100]     This offense was against his 18-year-old niece, again occurring on his home reserve during a house drinking party.  The Father called the RCMP and reported himself shortly following the offence, which apparently occurred after he had become significantly intoxicated.  A statement given by the Father to the RCMP in the course of investigating this offence contains an admission by the Father of an attraction to girls 16 to 18 years old and his suggestion that he has a “taste” for 14 to 16 year olds.  In his testimony the Father stated he had little recollection of making that statement.  Further that the offence occurred and therefore the statement was made during a period that he was drinking heavily.

[101]     Subsequent to this offense but prior to sentencing the Father completed a residential alcohol and drug addiction rehabilitation program starting in June of 2007.

[102]     The Father served his sentence at the Ford Mountain Correctional Center and commenced his probation on January 7, 2009.  While incarcerated in 2008 he completed a number of different rehabilitative and self -improvement programs on a voluntary basis including violence prevention, cultural education, cognitive skills, basic construction, substance abuse management and a CJR 12 educational program that took 120 hours.  I understand the Father also completed the sex offender program provided by that institution.

[103]     In April of 2009 the Father was assessed by B.C. Mental Health and Addiction Services, Forensic Psychiatric Services Commission.  This produced the 2009 FSO Assessment Report.  It concluded that the Father was an appropriate candidate for the Forensic Sex Offender Program commencing May 4 and running to June 22, 2009.  The Father entered into and completed the “Low Intensity Sex Offender Program”.

[104]     The 2001 Pre-Sentence Report can be regarded as a somewhat negative presentence report.  The author of that report notes that the Father responded to his challenges in life while growing up by feelings of oppression and being treated unfairly.  He is described as responding by “victim stancing” which I understand to be portraying himself as a victim, while not taking responsibility for his actions.  The report notes that by taking this position the Father’s situation was not improving.  While he had seen a sex offender counsellor, Dave Zryd, the counsellor reported that the sessions were more support oriented and “very little was accomplished from a counselling standpoint.”

[105]     The 2001 Pre-Sentence Report further notes that while the Father had abstained from alcohol he was not addressing the issues that led him to drink.  While expressing remorse about his sexual assaults of his two half-sisters, he apparently attributed those sexual crimes to the fact that he was “mean and lost all responsibility when drinking”.  It concludes by saying that the Father lacked insight into his behaviour and had been resistant to change.

[106]     The 2001 Pre-Sentence Report states that the Father reported that earlier in 2001 two men had broken into his home and had sodomized him as “payback” for his sexual assaults on the two young girls.

[107]     Eight recommendations were made in the 2001 Pre-Sentence Report including: a lengthy probation period to “ensure that he has the time needed to work on developing and implementing plans to take control of his life and to complete sex offender and alcohol and drug treatment”, abstention from illicit drug and alcohol use, counselling and Alcoholics Anonymous and Narcotics Anonymous meetings for overcoming that use and also including residential treatment, completion of a community based sex offender program, attendance at other assessments, treatments and interventions including those aimed at “increasing his sense of identity and direction based on Native values and traditions” and an order that he not be in the presence of children under age 14.

[108]     The 2001 Psychological Assessment Report discloses the result of a number of psychological tests completed on the Father.  Dr. Clarke concluded, from the psychological testing and interview that he conducted on the Father, that the Father wanted to portray himself as a man who knows his direction in life while he is in fact still lost and in need of help.

[109]     Dr. Clarke further notes on page 9 of the 2001 Psychological Assessment Report that to live his life and in concert with “the values espoused” (which this court understands to include his pride in his Native heritage and culture) it was necessary for the Father to maintain sobriety and work through his feelings of anger and loss such that he moves beyond seeing himself as a victim.

[110]     Dr. Clarke goes on to note at pages 9 and 10:

[111]     The 2001 Psychological Assessment Report also proposes a number of recommendations for the Father’s probation including taking part in a community-based sex offender treatment program, residential alcohol and drug treatment, not being in the presence of children under 14 years of age unless supervised by an approved adult and seeking employment or further upgrade of his skills.

[112]     As noted above, the Father was further assessed in the 2009 FSO Assessment Report as to treatment readiness, treatment targets, and as to the appropriate treatment. The Father was approved as suitable for a sex offender program.  Extensive references are made in the in the 2009 FSO Assessment Report to the assessments and recommendations contained in the 2001 Psychological Assessment Report.  An important limiting qualification appears at the beginning of the 2009 FSO Assessment Report that says as follows:

[113]     The approved sex offender program named in the 2009 FSO Assessment Report was the Low Intensity Sex Offender Program.  In the Discharge Summary dated June 22, 2009 completed at the conclusion of this approved sex offender program (the “2009 FSOP Discharge Summary”) it is described as being “a community-based low intensity treatment program”.  The nature of such a program is therefore qualified in the following terms:

[114]     The 2009 FSO Assessment Report noted that with respect to the 2007 sexual offence against his niece, the Father claims “full responsibility for his actions, without denial or justification”.  This appears to be significantly improved insight in comparison to what he expressed about his offences against his sisters and as detailed in the 2001 Pre-Sentence Report and in the 2001Psychological Assessment Report.

[115]     The Father was assessed on his identified static risk factors (those being relatively fixed) as well as his identified dynamic risk factors (those being changeable) prior to entering into the sex offender program.  The assessment information is referred to in the 2009 FSO Assessment Report and the 2009 FSOP Discharge Summary.

[116]     At entry to the program he scored in the Low-Moderate Risk range on the static risk factors.  He scored in the Low Risk range on the dynamic factors.  The 2009 FSO Assessment Report states that individuals who score similarly on the test administered on average sexually re-offend at the rate of 12 percent over five years and 14 per cent over ten years.

[117]     The 2009 FSOP Discharge Summary noted positive progress for the Father during the course of the program. However, six dynamic factors were identified as having not changed and four as having improved positively.

[118]     The 2009 FSOP Discharge Summary noted the Father was continuing to be quite socially isolated and continuing to struggle with impulsivity but was now actively using more frequently a higher degree of cause-and-effect thinking to predict the consequences of his actions.  It further noted that the Father had historically returned to substance abuse as a means to cope with unresolved grief and loss and to manage stress in his life.  It further made note of his coping strategy of using sex and his sexual interest in younger girls which was stated to be largely associated with historical misuse of substances. Those were identified as both remaining significant risk factors if the Father returned to substance use.

[119]     However, the 2009 FSOP Discharge Summary placed the Father in the Low-Moderate risk for reoffending based on risk assessment results and therapist clinical opinion.  The 2009 FSOP Discharge Summary does not reference any statistical information on his likelihood to reoffend.

[120]     Under the heading of “Future Management” the 2009 FSOP Discharge Summary makes the following recommendations:

[121]     At the commencement of the 2009 FSOP Discharge Summary the following noteworthy and cautionary limitation statement appears:

[122]     Quite remarkably the Father says that he was not made aware of the Future Management recommendations contained in the 2009 FSOP Discharge Summary nor were they discussed with him.  I am challenged to accept the Father’s recollection on this point given his historical sex offences and the nature of the treatment that he received.

[123]     The Father testified that he substantially fulfilled all of the recommendations in the 2009 FSOP Discharge Summary and as may appear in the 2001 Pre-Sentence Report and the 2001 Psychological Assessment Report.  He says that this occurred in the course of his probation following his 2001 sentence, and also following the 2007 sexual assault offence but preceding sentencing and also following the imposition of his 2008 custodial sentence and the resulting probation order that followed.

[124]     He testified that he completed these in a number of ways, including: through counselling resources provided by his band and his First Nation’s Health Board, through Mental Health and Addictions, through the John Howard Society Transitional Housing Programs, through outside counsellors, through his participation in Alcoholics Anonymous and Narcotics Anonymous, and though discussions with and advice he received from Native Elders. 

[125]     He apparently did all of this notwithstanding his contention that he did not know or was not made fully aware of the Future Management provision contained in the 2009 FSOP Discharge Summary.

[126]     The Father’s further suggestion is that in recent years and in particular since his recent involvement with the Ministry because of the Mother and the Child, he has not been able to attend nor avail himself of many of these formal resources.  His excuse is his continuing work obligations and the waiting lists to access some of the programs.  He testified that his wife, namely the Mother, and his “adopted uncle”, [S.R.] (“S.R.”) with whom he has shared an apartment for over the last year are the people in his life to whom he turn to for support.

[127]     In the course of the hearing before me he also presented a list provided to him by the Baron Road Clinic of several resources he can access from that and other clinics and organizations if and when the need arises. 

[128]     In his testimony S.R. testified that he and the Father’s own grandmother are members of the same band.  He is related but he is not a blood relative of the Father. They have maintained a close relationship over the past year.  S.R. has maintained abstinence from alcohol and drugs for 25 years.  S.R. is knowledgeable in Native culture and history and has shared his cultural knowledge and his own experience with sobriety with the Father.  He has spoken to the Father about the stressors in the Father’s life.

[129]     S.R. describes the Father as having a “surprising knowledge” about his band’s cultural history.  S.R. says the Father is careful about his sobriety and wants to keep alcohol out of his life, he is diligent about his work often doing double shifts, he is more at peace and less stressed than in the past, and specifically is more positive and not holding on to negatives as he had previously been doing.

[130]     S.R. says he has observed the positive and happy interaction of the Father with the Child during a supervised visit.  S.R. knew that the Father was experiencing difficulties obtaining access to the Child but had not delved into the details with the Father.  It became very apparent in the course of his testimony that S.R. was not aware of the Father’s criminal convictions for sex offences and presumed that the counselling and programs that the Father had taken or was being asked to take related to anger management.

[131]   The various Ministry social workers who testified on behalf of the Director admitted that they did not have personal knowledge of the details or circumstances surrounding the Father’s sex offenses or other criminal offenses.  Therefore significant reliance was being placed on the various historical reports prepared in connection with the Father and in particular the sex offenses that are referred to above.  That information of course was reviewed by the Ministry social workers in the course of dealing with and assessing the Director’s protection concerns.

[132]     The Ministry was obliged to take a number of actions once it became more informed about the Father’s past offending behaviour and in particular his three prior sex offenses, the other sex offence allegations made against him that did not result in charges being laid or proceeding and his relationship with the Mother and the Child.  One of the most significant actions was that the Ministry began to implement an information gathering and an assessment process to assist it in deciding whether the Father, as a child sexual offender, could re-join the family.

[133]     Back in 2001 the Ministry had developed a comprehensive set of “Practice Guidelines for Deciding Whether a Child Sexual Offender Can Re-join a Family” (also referred to in these reasons as the “Protocol”) for dealing with matters of this nature where a person who has sexually abused a child wants to move into a home where a child resides.  A copy of the Protocol was entered as an exhibit in this hearing and I subsequently reviewed it in the course of my deliberations. In the Introduction the following passage describes “What are the Practice Guidelines?”

[134]     On July 16, 2013 Social Worker Brandi Miller wrote to the Father (the “July 16, 2013 Letter”). The subject line was “Re-: Assessment for Reintegration of a Child Sexual Offender to a Family”

[135]     The July 16, 2013 Letter clarified and outlined the process for this assessment. Reference was made to the “Practice Guidelines”.  The letter clarified the basis for the assessment and the reasons for it.

[136]     The July 16, 2013 Letter notes as follows with reference to the Protocol:

[137]     The July 16, 2013 Letter goes on to say as follows:

[138]     The seven step process is then described noting that steps 2 to 5 are for the purpose of evaluating the strength of four barriers to sexual abuse.  Barriers are therein defined as “anything that will reduce the likelihood of abuse occurring”; these barriers are thereafter referred to as “stop signs”.

[139]     The seven steps in the following numerical order are then set out as follows under separate headings and then are amplified with the following additional information:

[140]     The penultimate paragraph of the July 16, 2013 Letter then provides important guidance to the Father as follows:

[141]     From the Ministry’s perspective a number of problems had to be addressed and as it turned out significant hurdles presented themselves in implementing and attempting to complete the Protocol.

[142]     During these earlier stages of the Ministry’s involvement with the Family, steps were also being taken by the Ministry social workers to identify individuals who would be suitable to act as supervisors for the Father’s access with the Child.  The Parents wanted the Mother to be able to supervise the Father’s visits.  The Ministry opposed that arrangement. Agreeing on supervisors became an issue between the Parents and the Ministry and only a very limited number of individuals proposed by the Parents were found by the Ministry to be suitable and were therefore approved.  As I understand it only one of the Mother’s sisters was approved as a supervisor at the time of the hearing before me. Thus for an extended period of time there were significant resulting practical limitations imposed upon the Father’s supervised access with the Child.

[143]     As noted above the major concern to the Ministry about the Mother acting as the supervisor was based upon their conclusion that the Mother was not fully aware of the circumstances and the exact nature of the Father’s past sexual offenses nor did she have sufficient training to handle the supervisory function.

[144]     The Father had provided the Mother with some information about his criminal convictions, but he had not made full disclosure to her.  For the Ministry this created a problem because if she was not fully knowledgeable about the risks flowing from circumstances and the details of the offences, the Mother would not have any necessary basis for dealing with the risk that the Father may pose to the Child.

[145]     Therefore from quite early on in their involvement, the Ministry took steps to attempt to bring the Father and the Mother together for an in person session with a social worker; the purpose being for an allocution by the Father to both the Mother and the social worker about the full details of his prior sexual offenses and the other allegations made against the Father that had either been dismissed or had not proceeded by way of any charges or by means of a trial.  The stated purpose was to facilitate an open discussion about the offences and the behaviour and the risks posed by them.  That session did not materialize although separate meetings were held by the social workers with each of the Father and the Mother.  The lack of any joint meetings was apparently mostly due to the reluctance on the part of the Father to talk about these matters in the presence of the Mother and the social worker.  This was perceived by the Ministry social workers as a lack of willingness on the part of the Father to take responsibility for his past offences.  The continuing absence of the joint meeting also hindered the information collection and the assessment being an integral first step in the Protocol.

[146]     The Father was apparently referred by the Ministry to the Tillicum Lelum Aboriginal Society around the spring of 2013 for counselling and workshops.  The evidence reveals that a conflict quickly developed between the service providers at Tillicum Lelum and the Father.  The service providers found the Father to be misusing the resources made available to him and that he was disrespectful of staff and Native Elders.

[147]     They further found him to be disruptive in the programs and workshops in which he participated.  This was described in a letter dated August 26, 2013 as creating an “unsafe environment for other participants, inhibiting their ability to engage in the programs or workshops”.

[148]     Accordingly, services for the Father were terminated by Tillicum Lelum effective July 4, 2013.  The Father described that he felt disrespected while attending Tillicum Lelum programs, stating that there were aboriginal cultural differences that became the source of friction between him and the service providers .

[149]     As part of the implementation of the Protocol to determine whether or not the Father as a child sexual offender could re-join the family in the home, the Ministry wanted to have the Father reassessed as to whether or not he continued to pose a risk of sexual re-offending.  They also wanted him to attend approved counselling programs. Therefore a referral was made for the Father on October 7, 2013 to NARSF Programs Ltd. for that purpose and in addition to obtain some family counselling.

[150]     The acronym NARSF apparently stands for “Nanaimo Area Resources Support for Families.”  It is a contractor that provides the Ministry with a full suite of programs including harm reduction services, family therapy programs, mental health outreach programs and sexual abuse intervention programs.  The Ministry social workers understood that NARSF was capable of providing the necessary services for the Father, including the required updated assessment.  I understand that the Father did receive some services from NARSF but with some very limited success

[151]     By way of a letter dated January 21, 2014, NARSF informed the Ministry that they were declining the referral of the Father to their Family Therapy Program because it was not within the scope or the practice of that program to provide either specialized sexual offender treatment or to provide the Ministry with a formal psychological assessment to assist in their decision making under the Protocol.

[152]     Both prior to and subsequent to the making of the Mediated Agreement , for a number of reasons, including  the limited  financial resources of both the Ministry and the Father and the lack of ability to access outside financial resources it became very problematic for the Father to successfully access and to engage in Ministry approved counselling and to obtain the required forensic assessment to properly determine the Father’s current risk to re-offend and to thereby place the Child at risk.

[153]     The Father sought to re-establish his historical counselling relationship with Dave Zryd and to be re-evaluated by Dave Zryd after the Mediated Agreement had been signed. For the most part this proved unsuccessful since Mr. Zryd was carrying on his practice in Port Alberni and the Father was living in Nanaimo.  The Father had limited transportation options to travel to Port Alberni.  Mr. Zryd then apparently moved his practice to the west coast of Vancouver Island, being another hour and a half from Port Alberni and thereby adding to the Father’s transportation burden and inability to meet with Mr. Zryd.

[154]     The Ministry decided that it was also important that the Mother undergo some family therapy. The purpose for the Mother’s therapy was for her to gain understanding of the Father’s past offending history and to learn how to provide protection for the Child.

[155]     Therefore a referral was also made for the Mother to NARSF.  From what I gather the Mother did not actually complete that NARSF therapy program.

[156]     She did in fact eventually complete an approved  sexual abuse prevention training program offered by Little Warriors on May 5, 2014, but the circumstances of her taking this program with the Father also in attendance was very problematic in the opinion of the Ministry social workers.  They were concerned that his presence restricted her ability to have the full benefit of asking questions and learning from the program.  Since completing that program the Mother has apparently not taken any further training in sexual abuse prevention.

[157]     Following her attendance at the Little Warrior’s Program in May of 2014 the Mother expressed that she had gained a lot from it.  She expressed to Social Worker Patten at a June 2014 meeting that it had “opened her eyes” and made her more diligent on the Father’s visits.  At that point the Mother seemed to Social Worker Patten to be more agreeable to the Ministry’s plan for continuing supervision of the Father’s visits.  However, the Mother was pressing for the approval of more Ministry approved supervisors.  As previously noted, it has continued to be a problem finding suitable supervisory candidates that are acceptable to the Ministry.

[158]     I also gather that no referral was actually made to NARSF for the weekly one on one counselling for the Mother that was contemplated by the Mediated Agreement.  Therefore that counselling did not occur.

[159]     According to the evidence of Social Worker Michelle Sharun at the time that she ceased to have conduct of the Parents’ and the Child’s file in January 2014, implementation of the Protocol was stalled at Step 2, namely the assessment of the Father’s “offender stop sign”.

[160]     Social Worker Ashley Patten assumed conduct of the Parents’ and the Child’s file in February of 2014.  She attempted to move the Protocol process along through meetings with the Mother.  At this stage the Father had essentially withdrawn from the process and was not engaging with Social Worker Patten or any other representatives of the Ministry.

[161]     A short term safety plan was entered into between the Mother and Social Worker Patten on March 21, 2014, the terms of which essentially were incorporated into the March 2014 Order.

[162]     Social Worker Patten testified that the Mother has been co-operative and she has been compliant with the necessary texting and phone message notifications concerning the Father’s planned access.

[163]     At present time, Social Worker Patten agrees that the Protocol remains stalled at the second step; therefore no further progress has been made since Social Worker Patten took over from Social Worker Sharun.  The same lack of co-operation of the Father sharing information with the Mother and the social workers about the offences is cited for this lack of progress.

[164]     The following sections of the Act are of particular relevance in the case before the bar. I have reproduced them for the benefit of the Parents and to assist them in understanding these reasons and to guide them in the future.

[165]     The parties have referred to and rely up on the following cases:

[166]     B.S. v. Director is an appeal from a finding made at a protection hearing that the child was in need of protection.  It is relied upon by the Director for several relevant propositions.

[167]     The first proposition is that the lettered paragraphs in subsection 13(1) of the Act list specific instances where a child must be regarded as needing protection. However, that list is not to be regarded as an exhaustive list of circumstances where protection is needed.

[168]     Even if a child cannot be proven to fall within one of those lettered provisions, the Guiding Principles in section 2 of the Act are paramount principles of positive law which confirm the entitlement of a child to be protected from abuse, neglect and harm or threat of harm. Thus if it can be proven that the child is in need of such protection within the context of any of the section 2 principles, then these paramount principles can be used to grant protection to such a child (see paragraphs 19 to 25).

[169]     The second proposition relates to issues regarding the manner of proving that a child is in need of protection. The burden of proof in child protection cases rests on the person who asserts the need for protection. The standard of proof is the standard in civil cases, namely the “balance of probabilities”. (see paragraph 26).

[170]     A third proposition arises from the second proposition. It relates to the application of the standard of proof and when considering past abuse, neglect or harm to a child and where there is an assertion that there is a risk of an event of abuse, neglect or harm occurring in the future.

[171]     In B.S. v. Director, Mr. Justice Lambert speaking for the majority of the Court of Appeal states the following at paragraphs 26 to 31:

[172]     Director v. M.O. is an appeal from the dismissal of an application pursuant to section 17 of the Act for an order granting the Director the right to interview the children of the respondent parents, where one of the children was the subject of criminal proceedings involving an alleged sexual assault on a 6 year old non-family member.

[173]     In Director v. M.O., Mr. Justice Brown examined the “real possibility test” used in B.S. v. Director, which is noted above, and at paragraph 28 of his decision states as follows:

[174]     In the course of assessing the risk of future harm under the “real possibility test” described in paragraph 30 of B.S. v. Director, Mr. Justice Brown says as follows at paragraph 48:

[175]     Brown, J. then examines what constitutes “reasonable grounds to believe a child needs protection” in the context of section 17 (1)(a) of the Act which states as follows:

[176]     Brown J. at paragraph 52 notes that the trial judge had examined the use of the word “reasonable” in that section and relying on Black’s Law Dictionary determined that reasonable meant “fair, proper, just, moderate, suitable under the circumstances or fit and appropriate to the end in view.”

[177]     At paragraph 53 he formulates the test to be applied having regard to the “real possibility test” and the definition of “reasonable” grounds in the following fashion:

[178]     At paragraph 66, Brown J. then goes on to state that he agrees that various, reviewed child protection authorities generally support that the standard of proof is less than the balance of probabilities.

[179]     He concludes that while section 17(1) of the Act does not require that the Director demonstrate that a child is need of protection on a balance of probabilities, the Director is required to demonstrate that there are reasonable grounds to believe that a child is in need of protection. 

[180]     Furthermore the Director’s belief under section 17(1)(a) must be objectively reasonable and based on some evidence, which must be more than mere conjecture, suspicion, a hunch or intuition. To put it another way it must be “subjective belief based on objectively reasonable grounds”. Thus “the standard is not a mere possibility, but whether there are reasonable grounds to believe there is a real possibility of harm.” [emphasis in original] (see paragraphs 67, 68, and 69)

[181]     Mr. Justice Brown then summarizes at paragraph 70 as follows:

[182]     In section 28 of the Act, the stated requirement for the Director to apply to the court for a protective intervention order is “if there are reasonable grounds to believe that contact between a child and another person would cause the child to need protection under section 13(1) (a) to (e) or (i)”.

[183]     Therefore because of use of the same wording requiring reasonable grounds to believe, I am of the view that the same tests that apply under section 17(1) of the Act, as expressed in Director v. M.O., apply to section 28 of the Act when determining whether a protective intervention order is to be made.

[184]     Director v. M.K. is a case where the Director sought a finding that three children were in need of protection and then an order for continuing custody order under section 49 of the Act. The court found the children to be in need of protection based on the interaction between section 2 and 13 of the Act as explained by Lambert J.A. in B.S. v. Director (see paragraph 63) and based on the Director satisfying the assertion of a risk of a future event being shown on the balance of probabilities (see paragraph 64).

[185]     The Director says that it has satisfied the required burden of proof in this Section 40 Protection Hearing and has satisfied the test that the Child is in need of protection as contemplated by the section 13 (1) (b) of the Act and pursuant to the guiding principles found under section 2 (a) of the Act.

[186]     The basis for the Child’s need for protections says the Director is based on the Father’s three prior sexual offense convictions against three child or young victims who were related to him and who were at the times of the separate offenses ages 11, 13 and 18.

[187]     The Director further argues that the Child’s need for protection is also based on the facts that Father:

[188]     The Director further submits that there is a significant lack of corroboration of the Father’s suggestions that he has taken relevant treatment to deal with the on-going management of his past sex offending and that the courses and programs that he has taken and which he can corroborate are not particularly relevant to the Child protection concerns.

[189]     In addition, the further basis for the need for protection of the Child says the Director is the Mother’s desire that she and the Child live with the Father and in those circumstance there exists on the part of the Mother a present lack of ability to offer the necessary protection for the Child against the potential risk of sexual abuse because of:

[190]     The Director further says it bears the civil burden of proof, being on a balance of probabilities, that the Child needs protection.  Furthermore the applicable test is that the weight of the evidence must show and does show that it is more probable than not that this assertion of the Child being in need of protection being made by the Director is correct.  Reliance is placed upon B.S. v. Director [at paragraph 26] in support of these two propositions.

[191]     Specifically, the Director says that the evidence adduced in this Section 40 Protection Hearing demonstrates that there is a risk for the Child to be sexually abused or exploited by the Child’s parent (that is the Father) and that is a likely risk as contemplated in section 13 (1) (b) of the Act.  The Director notes that the concept of a likely risk is called a “threat of future harm” in section 2 of the Act.  It is therefore the potential risk of future harm to the Child by the Father that is the linchpin of the Director’s case. The Section 40 Protection Hearing requires the application by the court of the “real possibility test” when assessing the risk of future harm to the Child. [see B.S. v. Director at paragraphs 28 to 31]

[192]     The Director accepts that the future risk to be proven must be more than a “mere possibility” and it must meet the test requirement of a “real possibility” [see: B.S. v. Director at paragraphs 30 and 31] and furthermore as noted by Brown J. in Director v. M.O. that “real possibility” comes closer to the meaning of “likely” mindful that the synonyms of “real” include ‘tangible’, ‘material’, ‘serious’, ‘genuine’, ‘true’, and ‘substantial’ [see: para 28]

[193]     The Director does not dispute that there have been some positive changes in the circumstances surrounding the lives of the Parents and the achievement of stability and sobriety which was in the past lacking. What is presently lacking is the absence of an updated professional opinion which confirms that the Father’s risk for offending behaviour has been reduced to an acceptable risk level and that the Father has taken the recommended steps to deal with containment of his offending behaviour.

[194]     The Director says on the whole of the evidence that there remains a real possibility of the future risk for the Child as a result of the Father’s future offending behaviour that such future risk goes beyond a mere possibility.

[195]     Therefore having established in the Section 40 Protection Hearing that the Child is in need of protection, the Director says that the least intrusive way to protect the Child is for the Court to make an order pursuant to section 41 (1) (a) of the Act that the Child remain in the custody of the Mother under supervision of the Director.

[196]     The Director further submits on the basis of the applicable test, as required in section 28 of the Act that reasonable grounds have been established to believe that contact between the Child and the Father would cause the Child to need protection under section 13 (1) (b) of the Act. Therefore a 6 month protective intervention order should be granted against the Father pursuant to section 28.

[197]     There are some significantly common themes in the submissions made by counsel for each of the Parents.

[198]     Both contend that the Director has failed to meet the test set out in B.S. v. Director.  They say that at best what has been established by the Director in this case is the mere possibility that the Child may be at risk as a result of future sexual offending actions by the Father against the Child.

[199]     The Parents say that risk of the Father committing future offences, and in particular against the Child does not meet the real possibility test for the following reasons that have been established by the evidence:

[200]     The Mother submits that in order for this court to find that the Child is in need of protection it is necessary for it to assess risk of harm posed by the Father.  In completing that assessment the Mother says that this court should not take a “black and white approach”, that is to say this court should not simply reach the conclusion based on the past three convictions that it is more likely than not that the Father will reoffend and that there will be future harm to the Child. Rather all of the circumstances must be considered by the court and in particular the present existing circumstances.

[201]     The Mother further submits that the court should not be keeping the Father out of the Child’s life based on a mere possibility of future harm.  The Mother urges the court not to find the Child in need of protection and hence the Mother and Child should not be made the subject matter of a supervision order.

[202]     In the alternative, the Mother says that if the court finds the Child is in need of protection then the appropriate supervision order would be one that would replace the existing conditions in the October 2014 Order: namely, condition number two (i.e. the Mother will not allow Father to reside at the same residence as the Child) and condition number three (i.e. the Mother will not allow the Father contact or unsupervised access with the Child except as approved by the Ministry). A new third provision would then state that the Mother will not permit the Child to be alone with the Father unless in the company of somebody over 18 years of age. That person will be the Mother in most instances.

[203]     The result of the changes will be that the family will be reunited while the Child’s safety will be protected by the Mother acting as a supervisor for the Father’s access to the Child.

[204]     Furthermore the Mother submits that a protective intervention order is unnecessary.

[205]     The Father submits that there must be a solid basis for the perception that there is a real possibility of future harm to the Child caused by the Father.  The Father says that there is no basis for that solid perception in this case.

[206]     As part of the significant changes in the Father circumstances, it is submitted that the Father has lived for over a year with a friend (S. R.), being a Native Elder who is a confirmed non-practicing alcoholic and who assists and encourages the Father’s continuing sobriety and his growth in cultural awareness.

[207]     The Father has demonstrated a high level of reform since his trial and convictions in 2001 for the offenses against his half-sisters.  It is submitted that his self-reporting of his offense in 2007 against his 18 year old niece, the expression of remorse to that offense expressed by him and his resulting genuine commitment to change his lifestyle clearly demonstrates that people can and do respond to treatment and to legal directions.

[208]     In submissions, the Father’s legal counsel indicates that the various reports and assessments completed on the Father identify that the Father has had difficulty with the “neo-colonial” and “paternalistic” attitudes expressed by individuals in positions of authority who have insisted that he obtain further counselling and follow their direction as to the necessary steps to be taken by him to rehabilitate himself.

[209]     It is further submitted that the Father wishes to assert his right to be a “free thinking person”.  I take that to mean that the Father wishes to have some considerable say and control over the type of counselling and programming in which he must participate to satisfy the Ministry that he has addressed the underlying conditions and issues that have given rise to his sexual offending in the past.

[210]     It is specifically stated that the Father has “not knelt down and cried before the court” as a means of demonstrating the improvements that he has made in this life.  Rather he has testified that he is presently a different man which is evidenced in “what he says he intends to do and what he has done” in his life. It is suggested that the Father’s self-directed approach does not quite fit in with the views of some of the individuals in authority who seek to have him conform with their notion of the appropriate counselling programs and the required steps to rehabilitation and risk reduction. Hence Ministry officials have failed to adequately recognize the commitment that he has made to steady full-time employment, his general industriousness and his hard work, the seriousness of his relationship with the Mother and his commitment to support his family unit.

[211]     I understand that the Father to say that he has done what the Ministry has required of him.  But he cites the failures on the part of the Ministry to provide him with the necessary opportunities for assessment and for services through NARSF and their failures to arrange appropriate referrals for him to relevant programming and their failures in making referrals for him to programming that was either not available or not suitable for him as the real cause of the existing conflict between the Parents and the Ministry.

[212]     Therefore the Father has concluded that he must on his own get on with supporting his family.  He has concluded that he cannot be devoting any more time to part-time courses that have been suggested by the Ministry, the value of which he challenges and which will simply interfere with his employment and his ability to support his family.

[213]     Thus the Father suggests that he has actually taken the necessary counselling and programs that were contemplated by the 2009 FSOP Discharge Summary and described under the heading of “Future Management”; therefore he does not require anything more by way of counselling and treatment.

[214]     Notwithstanding the Father’s objection to participating in what he considers to be paternalistic programs, he does not consider a new psychological assessment to be completed for him to be paternalistic.  What I understand him to be saying is that he would be open to participate in such an assessment and to have it completed for the use of the Ministry.  However, such a further psychological assessment for the Ministry’s use in assisting them in their decision making about him re-joining the family unit is something that the Ministry is better able to shoulder financially and in fact is something that he is unable to afford.

[215]     Reliance is placed by the Father upon the existing assessments that have been placed before the court.  The faxed note from the Father’s probation office dated March 26, 2013, although somewhat cryptic, confirms that the Father did abstain from alcohol and completed programs/counselling and that he “presented as open and cooperative during this last period of supervision.”

[216]     The Father says that there is no current professional opinion that says he needs further counselling for his past sex offenses. Furthermore, there is nothing to suggest that his behaviour has in any fashion regressed since 2009 and to thereby pose a greater risk for him re-offending.

[217]     The Father says there is nothing concrete in the evidence to demonstrate that there is the required measurement of a real possibility of risk of future harm to the Child.  What is concrete is the evidence of the Mother and the Father that contradicts such a suggestion.

[218]     Hence the Father says that there should be no supervision order granted against the Mother and furthermore that there should be no protective intervention order made against him.  He fundamentally challenges the notion of the appropriateness of the use of a protective intervention order in the present circumstances and in particular when the Ministry attempts to obtain such an order against a parent.

[219]     In the alternative the Father does agree with the position advanced by the Mother with respect to the form of a supervision order if the court shall find that the Child is in need of protection.

[220]     I am of the view that based upon all of the evidence presented in the Section 40 Protection Hearing, that the Director has satisfied the necessary burden of proof and has established that the Child is in need of protection both on the basis of section 13 (1) (b) of the Act and pursuant to the guiding principles found under section 2 (a) of the Act.

[221]     In particular the Director has established on the weight of the evidence that the risk of a future sexual assault by the Father on the Child is more probable than not.

[222]     Based upon B.S. v. Director, I am mindful that it is the risk of such a serious future event and not the future event itself that I must consider in making this determination.

[223]     The Father has a serious criminal record for sexual assaults on young individuals who are related to him.  Those assaults occurred when two of the victims were particularly young and particularly vulnerable.  These known offenses occurred over a time frame of some 17 years from 1990 to 2007.

[224]     There is no current forensic psychiatric assessment of the Father before the court.  It appears that the last comprehensive assessment of the Father is contained in the 2001 Psychological Assessment Report.

[225]     The subsequent 2009 FSO Assessment Report and the 2009 FSOP Discharge Summary rely heavily on the 2001 Psychological Assessment Report.  Both the 2009 FSO Assessment Report and the 2009 FSOP Discharge Summary make it very clear that these reports are not to be regarded as comprehensive psychological evaluations nor as a comprehensive risk assessment for the Father. Such is not their stated purposes or intended use.

[226]     Therefore I have concluded that it is not appropriate for this court to utilize them for an unintended purpose.

[227]     These reports do provide relevant insight into the Father as at the dates of their respective preparation.

[228]     They contain a number of useful recommendations made at the time of the preparation of each report for the Father to manage his future risk of reoffending.

[229]     The 2009 FSO Assessment Report provides a statistical likelihood of the Father reoffending on the basis of tests administered in 2009.  It places the Father in a category of individuals who on average sexually reoffend at the rate of 12% over five years and 14% over 10 years.  Even if I were to place considerable weight on that report, such a conclusion is very concerning when placed in the context of the B.S. v. Director case which specifically notes at paragraph 30 that a “10% risk of future abuse may meet the test of the risk being shown to exist on the balance of probabilities.”

[230]     Both the 2009 FSO Assessment Report and the 2009 Discharge Summary classified the Father as a “Low-Moderate risk to reoffend”.  Even given the most generous interpretation of such a classification in my view it still leaves the Father as a real possibility risk to reoffend against the Child.

[231]     Somewhat prophetically Dr. Clarke in the 2001 Psychological Assessment Report noted that the Father may experience the imposition of probation conditions in a similar way to the conditions he has faced from USMA, that is with a response that is resentful and that he would balk at them.  Specifically Dr. Clarke highlighted the necessity for the Father to understand that in such a context it was not the intention to victimize him but to help him mature, take responsibility for his life and to ensure that he no longer has victims.

[232]     This concern identified by Dr. Clarke has once again materialized during the 2014 and 2015 period in the present case.  Specifically it is in the way that the Father has responded and reacted to the Ministry’s involvement as it relates to his ongoing relationship with the Mother and the risk that it poses to the Child.

[233]     The Father clearly sees himself as a victim of the Ministry, its social workers, its contractors, its demands upon him and upon the Mother and its referrals made for him and for the Mother to obtain services.  He views himself as being much more able to know what is best for him in terms of treatment and believes that he has a superior ability to assess his future risk to sexually reoffend and in particular as it relates to the Child.

[234]     He has now withdrawn from his engagement with the Ministry.  He is uncooperative in participating in the Protocol process.  He apparently sees little value in allowing the Ministry to gather information and to undertake the formal assessment process under the Protocol, to assist the Ministry in formulating its decision as to whether to allow him to re-join the family and to manage the risk of future abuse within the context of the Ministry’s risk reduction plan, whether or not his reintegration within the family actually occurs.

[235]     The Father and the Mother have adopted a view which I interpret in the following fashion:  The Father has served his criminal sentences, taken treatment and achieved over 7 years of sobriety and has achieved a level of stability in his life including steady work.  Hence, he must be regarded by the Ministry and the court as not being a risk to reoffend sexually against the Child in the future and therefore should be permitted to reintegrate with the family unit with little or no involvement from the Ministry.

[236]     Such a view is not acceptable for a number of reasons.  This view pre-supposes that hard work and steady employment and a continuing level of sobriety are the only priorities that must shroud this family unit.  In themselves, they are commendable achievements.  However, they do not, nor should they be considered a replacement for proper counselling and participation in programs to ensure that other causal factors for the Father’s offending behaviour have been addressed and continue to be addressed in the future.  The recommendations for follow-up in various community based programs are clearly stated in a number of the reports that form part of the evidence.

[237]     The Father has been selective about what community based rehabilitative programs he participates in and when he participates in those programs.  That has been particularly pronounced in more recent years.  I am concerned about the apparent lack of formality and the lack of consistency in any community programs or counselling or any follow up undertaken by the Father in past three or more years, other than what the Ministry has specifically arranged for the Father.  The Father has been what can fairly be characterized as a challenging and a troublesome participant in these programs, as has been noted by Tillicum Lelum Aboriginal Society.  It is hard to fathom that the Father’s noted behaviour stemmed only from a cultural difference between himself and the staff of the service providers and the other program participants.  It likely has more to do with the Father’s continuing feelings of victimization that were identified some time ago by Dr. Clarke.

[238]     The Father seems to believe that these community programs are interfering with higher priorities in his life namely his steady work and furthering his relationship with the Mother such that they and the Child can once again all reside together as family unit.

[239]     In my view, in the bigger picture these priorities may be considered somewhat overstated and must be subsumed by a much higher priority.  Supporting his family is important.  But the long term protection of the safety of the Child and the long term reduction of the Father’s risk to offend must be of paramount concern and the absolute top priority.  That is the paramount concern of the Ministry and this court and it must continue to be so.  The Father and the Mother must recognize this as their top priority.

[240]     The Ministry has well founded concerns that the Father was initially and continues to be resistant to sharing with the Mother details of his historical sexual offending behaviour.  Only quite recently has he been forthcoming with the Mother about some of these details which he has slowly and reluctantly revealed over an extended period of time.  The details of the circumstances of the past offences presented during the course of the evidence in this Section 40 Protection Hearing have provided her with a greater level of necessary understanding.  But it remains for the Father and the Mother to take steps to satisfy the Ministry, by participating in the Protocol process, that the Mother has the required foundational knowledge base of the risks that the Father may pose to the Child based on his past offending behaviour.

[241]     This reluctance on the part of the Father to be forthcoming is concerning from two separate perspectives.

[242]     First, the Father views both the Mother and S.R. as part of his support network.  I have to ask myself how can S.R. be truly supportive and assist the Father with his underlying issues if S.R. is not fully aware of the actual cause of the conflict between the Father and the Ministry and does not know the complete background of the Father’s previous offences?  The same can be asked of the Mother if she too is to be a continuing source of support for the Father.

[243]     The short answer is that these two individuals, who are identified as being very important in the life of the Father and key to his support network, cannot offer the level of support to him that is essential because they do not have this important information from the Father.  Such important information allows them to gain an adequate level of insight to this individual whom they seek to support and who seeks their support.

[244]     The whole of the evidence leads me to conclude that the Father continues to experience a level of social isolation.  This has historically been identified by the various reports as a matter of significant concern and an impediment to addressing any underlying issues that have been identified in the various reports and which the reports say the Father needs to address.

[245]     The second perspective is the child protection concern.  If the Mother is to be able to provide the required protection for the Child, she must first be aware of what is the nature and the extent of that child protection concern.  In addition, the Mother must have sufficient training to offer this protection and to provide real protection for a future risk of harm to the Child.  The Ministry has been consistent in its concerns from this important perspective right from the outset of its dealings with the Father and the Mother. 

[246]     The Protocol is an important tool for use by the Ministry.  It is not established as being a mandatory procedure or process by legislation or regulation.  It appears to flow from a well-founded Ministry policy.  Participation in the Protocol is voluntary for the Father.  However, his lack of cooperative participation in it raises concerns in my mind as to how much insight the Father has into the top priority of child protection and the goal of risk reduction of future harm to the Child and as Dr. Clarke stated to “ensure that he no longer has victims”.

[247]     So long as these matters remain formally unresolved and unaddressed, the risk of reoffending or the threat of future harms is a real possibility.  It is not just a mere possibility.

[248]     Having found that the Child is need of protection in the Section 40 Protection Hearing, I now turn to the necessity and the adequacy of a supervision order to protect the Child.

[249]     I have concluded that the Ministry is correct when it says that the least intrusive way to protect the Child is for the court to make the requested order pursuant to section 41 (1) (a) of the Act that the Child remain in the custody of the Mother under supervision.

[250]     I have also given full consideration to the important question as to whether the Mother should be permitted to provide supervision of the Father’s access to the Child.  I am of the view that the significantly restricted number of people who have been put forward and presently have been approved as supervisors by the Ministry is problematic for practical reasons and will continue to be so. I t impedes reasonable supervised access for the Father.  It is also a significant source of unnecessary conflict and tension between the Ministry social workers and the Parents.

[251]     I am satisfied that the evidence supports a conclusion that the Mother has demonstrated that she has been generally quite compliant with the terms of supervision that have previously been ordered.  In coming to this conclusion, I am mindful of her failure to properly deal with obtaining the Director’s approval for the change of her residence that amounted to a breach of condition number 4 in the March 2014 Order.

[252]     The brief encounter on the street between the Father and the Mother while the Child was in the presence of the Mother in my view was incidental contact and it has not been established on the evidence that it was calculated or planned by the Parents.  In my view it was not unsupervised access with the Child as prohibited by condition 3 of the March 2014 Order. What occurred by way of incidental contact led to the Ministry to seek and obtain a change to condition 3 to tighten up and prohibit such incidental contact in the new language that is now reflected in the October 2014 Order.

[253]     The Mother has gained a fuller knowledge of the Father’s prior sexual offending behaviour by virtue of the fact that the Ministry has pursued this topic with her; she in turn has asked more questions of the Father and received more answers.  That fuller knowledge of the circumstances has also flowed from the Mother hearing the evidence and admissions made by the Father at this hearing.

[254]     The Mother has also completed some of the important protective educational courses stipulated by the Ministry.  I expect that the Ministry may have further courses that they expect the Mother to take for the purpose of enhancing her protective skills. I regard that as being both important and beneficial for the Child and the Mother.  I fully anticipate that the Mother’s cooperation for successfully completing any further courses will be an important consideration for the court if the Director seeks further orders in the future or the Mother seeks to eliminate further supervision.

[255]     In my view it is a manageable and relatively small risk for the Mother to be permitted to provide supervision for a defined period, so long as there are firm requirements in place.  By allowing the Mother to supervise the Father’s access with the Child while under the terms of the supervision order, the Ministry will then be able to better assess her willingness and her ability to perform her role as the protective adult and her ability to act as a strong enough protective factor to make future sexual abuse of the Child by the Father unlikely. In other words, to complete the third step in the Protocol.

[256]     I am satisfied that the Director has met the required test, as described above, namely that of there being “reasonable grounds to believe” that contact between the Child and the Father would cause the Child to need protection under section 13 (1)(b), all on the basis as I have set forth above.  The Director has also established that it is in the Child’s best interest for there to be a protective intervention order against the Father as authorized by section 28 of the Act and based upon the provisions of section 28(3) (a) and (b) of the Act.  I reject the Father’s argument that a protective intervention order is an inappropriate remedy to be utilized against a parent.  Section 28 does not place limitations on the categories of individuals against whom a protective intervention order can be made, if contact with that individual would cause the child to need protection under section 28(1).  Parents are not statutorily exempted in any fashion.

[257]     In coming to this conclusion that a protective intervention order against the Father is warranted, I adopt the same factual reasons and analysis that I have set out above when finding the Child to be in need of protection and in concluding that there is a necessity for a supervision order to be made.

[258]     The terms of the protective intervention order against the Father will need to be crafted in such a fashion as to dovetail with the supervision order and to permit the Father to have access within the context of the supervision order.

[259]     To summarize, I have reached the following conclusions:

[260]     The Child will remain in the custody of the Mother under supervision pursuant to a 6 month supervision order to be terms as follows:

[261]     The six month protective intervention order will be on terms as follows:

[262]     The solicitors for the Director will be responsible for the preparation of the form of these orders, which will be approved as to form by the respective solicitors for the Father and the Mother.

[263]     If there shall be any disagreement as to the form of these orders which remains unresolved within three weeks of the date of these reasons for judgment, that issue will be brought back before me for a determination.

[264]     I am concerned about the lack of a current, comprehensive psychological evaluation that updates the Father’s present psychological condition, that further updates his relevant psychological test results and expresses an expert’s opinion as to the Father’s level of risk at sexual reoffending.  I would expect that such an updated evaluation and report would also contain further recommendations as to any further counselling or community-based programs that may be deemed to be relevant, desirable and important to reduce any risk of the Father sexually reoffending and in particular with the Child.

[265]     I am mindful that earlier attempts were made by the Director and the Father to formulate some arrangement to obtain such an updated evaluation and report.  These arrangements were in part set out in the Mediated Agreement. Unfortunately, those arrangements proved to be unsuccessful and unattainable for a number of reasons

[266]     I am also mindful of the significant expense that such an updated evaluation and report may entail and the apparent limit on available financial resources for both the Director as well as the Father.

[267]     The making of an order under section 59 of the Act is of limited practical value because the applicant for such an order must pay the cost of an examination ordered under that section.

[268]     It seems to me that such an updated evaluation and report will be extremely helpful as part of and in completing the Protocol.  Presumably the Director will continue to undertake the required steps contained in the Protocol during the six month duration of the supervision order that I have just made.

[269]     Without in any way deciding the issue, there is a substantial risk to all parties in this matter that in the absence of such a current report that none of the parties will be in a reasonable position to propose, argue or to decide from a basis of current information and knowledge what should occur at the end of the supervision order and the protective intervention order that I have just made.  If the issue of what should then occur remains contentious and the parties are unable to agree on some resolution or at least agree on a plan leading to a possible resolution, there is a very high likelihood that this matter will be the subject of further adversarial court proceedings.

[270]     In my view, it will be most helpful if the parties were able to revisit this important issue, fully investigate all options for obtaining and paying for such an updated evaluation and report to be prepared by an appropriate party and to have that report available for early consideration and if necessary for presentation to the court in any future court proceedings.

[271]     In the course of this multi day Section 40 Protection Hearing, I have heard a significant amount of evidence and I have provided comprehensive reasons for the contentious issues that have arisen to present date.

[272]     I am mindful of concerns about the effective use of limited judicial resources and limited court time.  I anticipate that counsel for the parties also share these concerns.

[273]     Accordingly, it raises the issue as to whether or not it is appropriate for me to seize myself of some or any part of this matter, for example to the end of the supervision order and the protective intervention order that I have just made.

[274]     It also raises the possible issue as to whether it is appropriate to have another judge assigned to deal with this matter on a case management basis.

[275]     I will leave it to counsel to discuss these matters further.

[276]     I will also grant leave if any of the parties wish to arrange through the Judicial Case Manager to bring this matter back before me for formal submissions and my further consideration of these other matters of concern.