IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Director applies for an Order of Continuing Custody (“CCO”) of the child A.K.S., born [omitted for publication].

[2]           A.K.S. is the child of D.F., the mother and D.S., the father.  Both the mother and the father are of aboriginal descent.  Shortly after the birth of A.K.S., the family became known to the Ministry of Children, Families and Community Services (“CFCS” or “Director”).

[3]           A.K.S. was removed from her parents by the Director on February 8, 2014.  The major precipitating incident resulting in the removal of A.K.S. was that on the evening of February 8, 2014, the parents had a domestic dispute during which D.S. received a stab wound.  D.S. reported to the police that the wound was self-inflicted.  The medical opinion is D.S.’s wound was not self- inflicted.

[4]           There were no charges arising out of the incident.  However, during evidence at this trial, D.F. stated she was very intoxicated on that evening and had a fight with D.S.  She does not recall stabbing D.S., but she conceded she must have as no one else other than the child was there. 

[5]           In this hearing the parents agree that at the time A.K.S. was removed, the child was in need of protection.

[6]           D.S. and D.F. oppose the application of the Director for a CCO and seek the return of their daughter.  The parents submit that they have made significant changes in their lives and say they are capable and willing parents for A.K.S.  In the alternative, if the court determines that a CCO must be granted, the parents seek post-CCO access to A.K.S.

[7]           As noted, A.K.S. was removed on February 8, 2014 when she was 13 months old. 

[8]           On February 28, 2014, an interim order that the child be in the custody of the Director was made pursuant to s. 35(2) of the Child, Family and Community Services Act (“CFCSA” or “Act”).  On April 4, 2014, by consent, there was a declaration that the child was in need of protection on her removal on February 8, 2014.  A three month temporary custody order (“TCO”) to the Director pursuant to s. 41(1)(c) of the Act was also granted.

[9]           On December 2, 2014 a Family Case Conference was held.  No orders were made arising out the conference except for a direction to send the matter to trial. 

[10]        Trial dates were set for the May 19-22, 2015 family assize, but the trial was adjourned for lack of trial time. 

[11]        The matter was then set on the October 2015 trial assize, but by consent the matter was adjourned off the assize as the parents were scheduled to attend the Round Lake Rehabilitation Treatment Centre in Kamloops, British Columbia to address alcohol abuse issues.

[12]        The trial commenced in May 2016 for five days.  The trial was not concluded during that assize and further trial dates were set in September 2016 at which time the evidence was concluded followed by written submissions.

[13]        The Director brings their application pursuant to s. 49(4)(b) and s. 49(5) of the Act.  It is appropriate to proceed under s. 49 of the Act as a temporary custody order to the Director was granted on April 4, 2014.

[14]        On considering s. 49,  the court in Director v. L.(M.R.) 2009 CarswellBC 550, 2009 BCPC 65, stated at paragraph 50:

[15]        The guiding principles as set out in s. 2 are as follows:

[16]        Section 49(5) of the Act sets out a different test than s. 49(4). 

[17]        S. 49(4) is prescriptive: that is, if the court finds the conditions set out in s. 49(4) to exist, then the court must make the continuing custody order in favour of the Director.  Therefore under s. 49(4)(b), if the court determines a parent or parents are unwilling or unable to resume custody of the child, the court must make an order granting continuing custody of the child to the Director.

[18]        The test in s. 49(5) of the Act is that when considering whether a child will be placed in the continuing custody of the Director, the court must determine whether there is a significant likelihood that either the circumstances of the parents which led to the removal will improve within a reasonable time or whether the parents will be able to meet the child’s needs.

[19]        As stated by Sinclair-Prowse, J. in Director v. M.(J.), 2003 BCSC 187 (CanLII), [2003] B.C.J. No. 295, the court should first consider subsection (5) of s. 49 before considering subsection (4).  At paragraph 45 of the M.(J.) decision the court states:

[20]        To determine the questions in s. 49(5) of the Act, s. 49(6) sets out three factors that are to be considered:

[21]        When determining the best interests of a child pursuant to the Act, such as in s. 49(6)(c), the court must consider s. 4 which sets out relevant factors in determining the child’s best interests.  The factors enumerated by s. 4(1) are examples and are not exclusive.  The enumerated factors are summarized as follows:

[22]        In the event the court does not make a continuing custody order, there are other options for the court to consider, as set out in s. 49(7) of the Act, as follows:

[23]        Further, if the court makes an order pursuant to s. 49(7)(a) or (b), s. 49(8)  provides the return can be ordered to be under supervision by the Director.

[24]        Finally, in the event the court makes an order for temporary custody of the child to the parents or to the Director, s. 49(9) sets out that the Director can bring a further application for a continuing custody order, but the application must not be brought earlier than 60 days before the expiration of the temporary custody order. 

[25]        In addition to the legislation, case law has been considered.

[26]        Counsel for the mother provided the following cases for consideration, which I have reviewed:

[27]        Counsel for the Director referred the court to the following case, which I have reviewed:

[28]        The first step is to apply s. 49(5) of the Act.  The court may place the child with the Director under a continuing custody order if one of the following questions is answered in the negative: 

[29]        Before commencing with the analysis under s. 49(5), it must be determined that the child is in need of protection.  As previously noted, on April 4, 2014, the parents and the Director consented to an order that the child was in need of protection as of the removal February 8, 2014.

[30]        I confirm that I find that as of the date of removal, February 8, 2014, the child was in need of protection.

[31]        To determine the questions as set out in s. 49(5), I will consider the factors set out in s. 49(6), that being the past conduct of the parties, the plan of care proposed for the child, and the best interests of the child.

[32]        D.F. and D.S. met in Saskatchewan, and came to Penticton, British Columbia before A.K.S. was born.  At the time of the trial, they had been in a relationship for about five years.

[33]        D.F., the mother, is 23 years old and a member of the [omitted for publication] Band, located in Saskatchewan.  D.F. has a history of being in the care of the Ministry as a child in Saskatchewan.

[34]        D.S., the father, is a member of the [omitted for publication] Band, located in Saskatchewan.  D.S. also has a history of involvement with the Ministry as a child.

[35]        Throughout the trial, reference was made to possible diagnoses of FASD and FAE of both D.F. and D.S., but there was insufficient evidence of a definitive diagnosis in relation to either parent.  It is recognized, however, that each of the parents have experienced significant challenges arising out of their childhood and background, which may include difficulties arising from undiagnosed challenges.

[36]        The parents each have a history of significant alcohol abuse.  The alcohol abuse commenced for both parents at the latest when they were teenagers.  D.F. did not realize she was pregnant with A.K.S. until she was about 6 months pregnant.  D.F. and D.S. then moved to Penticton.  D.F. states once she became aware she was pregnant, she did not drink for the rest of the pregnancy.  However, after the birth of A.K.S., D.F. became depressed and started drinking again.

[37]        The parents and A.K.S. lived in an apartment in subsidized low income housing.  The incident that led to the removal of A.K.S. occurred on February 8, 2014, when A.K.S. was about 13 months old.  The parents engaged in a domestic dispute and they both admit they were extremely intoxicated at the time.  During the dispute D.S. was stabbed.  The police were called and D.F. climbed over the balcony railings to the ground to avoid the police.  D.S. handed A.K.S. over the railings down to D.F., and she and A.K.S. left the apartment complex area. 

[38]        As a result of this incident, the Ministry removed A.K.S. from her parents’ care and placed A.K.S. in a First Nations foster home.

[39]        As a further result of the incident, D.F. and D.S. lost their apartment as they were required to vacate.  The loss of their accommodation began a pattern of on-again-off-again homelessness.

[40]        D.F. and D.S. began residing with family and friends having no fixed address until the fall of 2014 when they managed to rent a motel room for the winter.  They resided at the motel until the late spring of 2015 but the winter rental availability ended and they were again placed in a position of homelessness.  D.F. and D.S. described attempts to secure accommodation, but they were unable to find rental accommodation until August of 2016.  Between the spring of 2015 and August of 2016, D.F. and D.S. “couch surfed” with relatives including D.S.’s mother in Keremeos, family friends including the Kr. family on the [omitted for publication] Band Reserve, D.S.’s sister in West Kelowna, and they also ended up on the street for a period of time. 

[41]        Throughout the period of time from February 2014 to the trial, D.F. and D.S. continued to have unsupervised visits with A.K.S.  Sometimes the visits were at a public park; sometimes at the motel; sometimes at a community swimming pool; sometimes at a local play organization venue call Jumping Beans; and sometimes at a playgroup called Strong Start.

[42]        The parents were not perfect in their attendance.  There are concerns expressed by the Director that the parents continued to abuse alcohol at various times but there was no evidence that either parent was intoxicated when they had visits with A.K.S.

[43]        Alcoholism has been a challenge for both D.F. and D.S.  It is noted that D.F. spent a short time in jail, and the incident apparently involved alcohol.

[44]        It is clear from the evidence that the parents have had a long standing issue with abuse of alcohol. 

[45]        A further concern of the Director is that from the time A.K.S. was apprehended, D.F. and D.S. seemingly were unreliable, uncooperative or inconsistent with any apparent steps the Director wanted them to take to deal with their abuse problem.

[46]        D.F. and D.S. had difficulties accessing services and meeting with Family Support Workers. 

[47]        In addition to the concern that D.F. and D.S. have alcohol abuse problems and a pattern of homelessness, the Director is also concerned about the incident of domestic violence.

[48]        The Director argues that they have wanted D.F. and D.S. to attend anger management counselling and a parenting course.  The Director says they are not satisfied D.F. and D.S. have complied.  

[49]        The parents have engaged in some counselling since the removal of A.K.S.  They met with Mr. Mix, a counsellor provided by the Ministry.  D.F. completed the counselling course with Mr. Mix but D.S. did not.  Through the Friendship Centre, D.F. and D.S. met with a counsellor, Gerry Giberson, for alcohol and drug abuse counselling for approximately two years until Mr. Giberson moved from the jurisdiction.  The counselling, however, was sporadic and it is unknown whether it has had any positive effect. 

[50]        Mr. Giberson gave evidence that initially he made appointments for the parents to come in and receive counselling, but as a result of a pattern of non-attendance at scheduled appointments, Mr. Giberson began to connect with the parents whenever they attended at the Friendship Centre to have an on-the-spot meeting with them.

[51]        In the fall of 2015, the parents attended a residential treatment centre for drug and alcohol abuse for couples at Round Lake, in Kamloops B.C.  This program is designed to address the interests and needs of participants who are First Nations.  Both D.F. and D.S. successfully completed the program. 

[52]        Since completing the program, D.F. admitted to some “relapses” with alcohol use.  D.F. recounts an incident in June of 2016 on a vacation trip to Victoria, B.C. where she consumed alcohol and had a dispute with one of the members of the group (a member of the Kr. family) with whom she was travelling.

[53]        D.S. testified he did not drink any alcohol on that occasion and that he has been sober since his completion of the Round Lake residential treatment program.

[54]        D.F. testified in September that she has not had a relapse since the June incident.

[55]        Both parents testified they are now attending AA regularly and receiving recognition for sobriety. 

[56]        What appears to be a turning point for the parents overall, is that after the incident in June 2016, the parents lost their accommodation with the Kr. family.  They moved to Keremeos, first to D.S.’s mother’s house, but then began renting a room from an elderly friend of D.S.’s mother.  The rental arrangement did not work out and the parents were again homeless for a period of time.  D.S.’s mother has her own issues with alcohol abuse and was not a reliable resource for the parents.

[57]        Of note, as soon as D.F. and D.S. arrived in Keremeos, they took the initiative, prior to obtaining a referral from the Ministry, to connect with a counsellor employed by the Lower Similkameen Community Resources Society, Nadia Cutler.  After the parents started with Ms. Cutler, the Ministry became aware of the parents seeking help and gave a referral to the counsellor.  The Ministry and the counsellor then began coordinating their efforts with the parents.

[58]        The parents have established a good relationship with Ms. Cutler.  Through this counsellor they received a referral to mental health; they are taking and have completed some parenting courses; they continue to receive counselling; they both have found employment; and of significance, they obtained stable housing as of August 2016.  

[59]        With the mental health referral, there was evidence of a missed intake telephone appointment because the parents failed to spend money to have minutes on their phone.  The Director argued the parents are financially irresponsible making decisions to spend their money on a holiday rather than keeping minutes on their phone.  D.S. acknowledged that he and D.F. did spend significant money taking the short holiday trip to Victoria.

[60]        Ms. Cutler advised that D.F. and D.S., as part of the counselling they are receiving through her, will include a teaching unit about skills for managing finances. 

[61]        The housing obtained by D.F. and D.S. is a basement suite.  Again the Director is concerned that the rent D.F. and D.S. are paying will be too much for them to afford.  The parents are currently relying on a short term subsidy from the Brain Injury Association to supplement the cost of the rent.

[62]        However, what is also significant, is that both the parents have obtained employment.  D.F. works at a local food/restaurant establishment and D.S. has been hired by a Penticton stucco company.

[63]        At the time of the continuation of the trial in September, each of the parents had only worked a few days.  The written submissions from the parents’ counsel advise the parents are still employed as of those submissions.

[64]        The child, A.K.S., has been in the care of the same foster parents since her removal and she has established a strong bond with them.  A.K.S. is described as thriving and happy.  A.K.S. has a good relationship with her parents, apparently more with D.S. than D.F.

[65]        The parents’ plan of care of A.K.S. is that they are currently residing in Keremeos and that they would obtain day care for A.K.S. as they both plan on continuing to work.  There is a concern that D.S., working in Penticton, relies on a friend to drive him to work in the morning and then D.S. hitch-hikes back to Keremeos at the end of the day.  As with housing, the parents have had significant challenges with transportation.  Neither D.S. nor D.F. have a driver’s licence.  There is a concern whether D.S. can maintain this amount of travel to keep working in Penticton. 

[66]        A concern arose from D.S.’s evidence.  He testified that he thought a further move of the family from Keremeos was in the future.  The concern is that a move may disrupt the stability that the parents have apparently achieved in Keremeos, which would seriously affect A.K.S.

[67]        The parents have had unsupervised access visits with A.K.S.  The Director says the parents were often reluctant to engage in programs with A.K.S. that the social worker identified as ones the child needed.  The social worker set up attendance at Strong Start and visits to the Community Centre pool.  The parents often chose not to attend Strong Start or take A.K.S. swimming in the pool, and would go back to their residence at a motel when they were living there, or to a mall or another location including a park.  The parents testified they were trying to get time with their daughter.  At one point when they were homeless, visits took place in the park and the parents were saddened that A.K.S. thought her parents lived in the park.

[68]        It is clear that the parents faced some challenges during some of the time they were exercising access to A.K.S.  The parents had very limited funds, and stated in testimony that if they were asked to pay for admission to the pool facilities at the Community Centre, they were almost always not in a position to pay the fee.  Following through with completing and submitting paperwork to apply for subsidies, for instance to get a subsidized pool pass from the City, was also problematic for them.  The Director argued the parents were financially irresponsible.  The parents were also homeless for a considerable time in 2015 and into 2016 which presented enormous challenges for the parents.  I accept that being homeless causes a great deal of physical, emotional and mental difficulties.

[69]        The parents had and continue to have transportation challenges, and for a period of time they did not have a phone and so communication was a problem.

[70]        The Director further pointed out that when A.K.S. was removed from her parents, she had not received any immunizations.  The Ministry took steps to bring her immunizations up to date.  The Director also points out that they have a concern that if A.K.S. has a serious health issue, D.F. and D.S. are likely not going to follow through with adequate medical care for A.K.S.  The Director relies on two examples for its concern.  On one occasion during a visit with A.K.S., the parents called the foster parents to come and take her back as A.K.S. was sick with a fever and vomiting.  The parents say they are capable of looking after their daughter but she was sick and the parents were living at the motel and did not have overnights with A.K.S.  Essentially, the parents are saying they thought it was best for their daughter to go back to where she was living at that time.

[71]        The second example the Director points to is that on a medical check-up while A.K.S. was in the care of the Director, a diagnosis that A.K.S. had diabetes was made, which was later proven to be false.  The Director speculates that had A.K.S. been in the care of her parents, they would not have undertaken the testing, and if the diagnosis had been correct, the Director speculates the parents would not have obtained the proper care for A.K.S.  There is no evidence to support these speculations and I decline to give them any weight.

[72]        On considering the best interests of the child, her safety is paramount.  It is recognized that the family is the preferred environment for the child, but only if the child is safe and adequately cared for. 

[73]        Had the trial ended after the evidence in May of 2016, clearly there would have been an order for continuing care to the Director.

[74]        However, there have been some changes that have been made by the parents, D.S. and D.F.  With the assistance of the counsellor Nadia Cutler, the parents have made some astonishing strides since July 2016.

[75]        As of the date of the trial in September, although the changes and improvements made by the parents are commendable and essential for the court to consider in relation to the well-being of A.K.S., the parents must demonstrate and show that the changes are permanent and stable.  They have obtained housing; they have obtained gainful employment; they have been taking counselling; they have been sober for several months; and they have established a reliable relationship with a counsellor, Nadia Cutler. 

[76]        Although it can be argued past actions are the best indicator of what will occur in the future, as is set out in M.W. and A.M.S., recognition and consideration must be given to the parents’ recent actions in trying to come to terms with the challenges that they have historically faced.

[77]        I cannot find that there is no likelihood that the circumstances which caused the child to be removed will not improve within a reasonable time.  I cautiously find that there is a likelihood that the circumstances of the parents which led to the removal will improve within a reasonable time, and if the parents continue on the positive path they have embarked on, then they will be able to meet A.K.S.’s needs.

[78]        On considering s. 2 and 4 of the Act, I find that it is not in A.K.S.’s best interests, at this time, to grant a CCO.  I have been mindful of A.K.S.’s age and her need for stability.

[79]        However, I do not find that the parents are ready to immediately have A.K.S. in their custody.  The parents have been slow in getting their affairs in order and finding a way to start addressing their challenges.  It is recognized that they have taken significant steps, but these steps have come very late in the day: that is, just before the resumption of the trial in September, 2016.  However, as mentioned, those steps have been significant.  I find this is a case where the parents ought to be given one further opportunity to demonstrate they can maintain and make permanent their ability to have a residence and remain sober.

[80]        As a result of considering all of the evidence and applying the law, I order that the child, A.K.S., remain in the temporary custody of the Director for a period of six months pursuant to s. 49(7)(c).

[81]        During this 6 month period, it is the expectation of this court that the parents will maintain stable housing, maintain sobriety, continue with counselling including any mental health counselling as is made available, continue with any parenting courses recommended by the social worker and/or Ms. Cutler, and work with the social worker to establish a viable parenting plan.  I leave it to the Director to consider and provide appropriate services to assist the parents.  As well, if the parents remain sober, and have stable housing, and continue their counselling with Ms. Cutler as mentioned above, it is the expectation of the court that the Director will consider and provide increased parenting time.  If the parents fail to remain sober and/or become homeless, then the Director will have the options as allowed through the Act to again seek a CCO.