IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Ministry of Children & Family Development (“the Ministry”) seeks a continuing custody order, pursuant to section 49 of the Child, Family & Community Service Act RSBC 1996, c. 46 (“the CFCSA”), in relation to J.J.M. (“J”), who is now 52 months of age.  The effect of a continuing custody order, if one were made, would be that J’s biological parents would cease to be his guardians and he would become a ward of the Ministry: CFCSA, section 50.

[2]           J’s father, Mr. M, opposes the application.  J’s mother, Ms. D, was served with notice of the hearing, but did not attend or participate.

[3]           J first came to the attention of the Ministry when he was about 18 months of age.  A member of his extended family reported that Ms. D had left J alone and unattended.  The Ministry took no action at that time.

[4]           On February 8, 2015, Mr. M and J were passengers in a vehicle which was the subject of a high-speed police chase on a highway near Nanaimo, British Columbia.  The RCMP reported the incident to the Ministry.  On February 12, 2015, the Ministry removed J from the family home under the authority of section 30 of the CFCSA, and placed him in foster care.  J remained in foster care for 5 months, until July 13, 2015, when he was returned to the care of his parents under the supervision of the Ministry, pursuant to section 29.1 of the CFCSA.  One of the terms of the supervision order was that Ms. D not leave J in the care of anyone else unless that person had been approved in advance by the Ministry.

[5]           On October 20, 2015, Ms. D was arrested and detained in custody.  She had no opportunity to make arrangements for J to be cared for in her absence.  J was left in the care of his maternal grandfather.  The Ministry learned of this situation on October 21, 2015 and removed J from the grandfather’s care on October 27, 2015.  I was not told why the grandfather was considered to be an unsuitable caregiver.  J was returned to the foster home where he had lived between February 12 and July 13, 2015.  He has remained in that foster home since that time, a period of 23 months.

[6]           Ms. D was released from custody in January, 2016.  At her request, the Ministry arranged a supervised visit with J.  The visit went well, but Ms. D did not request any further visits.  Ms. Alyward, the social worker assigned to the case, attempted to contact Ms. D several times thereafter, but was unable to do so until June, 2016, when Ms. D was arrested again.  Ms. D remained in custody until March, 2017.  Upon her release, she met with Ms. Alyward to discuss steps which she could take to allay Ms. Alyward’s child protection concerns.  They agreed to meet again over succeeding weeks to follow up on that subject and to develop a plan which might allow J to be returned to her care.  However, Ms. D did not attend any of the proposed follow-up meetings and Ms. Alyward did not hear from her again.  Ms. D’s present location is unknown.

[7]           In the result, Ms. D’s last regular contact with J was in October, 2015, when he was 29 months of age.  Since then, she has had one brief supervised visit, when J was 32 months of age.

[8]           Mr. M lived with Ms. D and J in Nanaimo for about two months after J was born.  In or about July, 2013, Mr. M moved to Vancouver to pursue employment opportunities.  He continued his relationship with Ms. D, and visited her and J each weekend until January, 2015, when he was arrested.  After January, 2015, his opportunities to see J were limited by a series of jail sentences:

[9]           Ms. Alyward points out that both Mr. M and Ms. D were out of custody from January to June, 2016, and that neither of them attempted to contact the Ministry or J during that period.

[10]        Mr. M has not seen J since February, 2015 (when J was 20 months of age).

[11]        Mr. M is 29 years of age.  He has skills as a technician working with fire suppression systems, but is not presently employed.  He is confident that he can obtain employment in the Port Alberni area, where he is now living.  He resides in the home of Ms. D’s sister, and is looking for a home of his own.  If I refuse the application for a continuing custody order, Mr. M’s mother will move from Alberta to Port Alberni to reside with Mr. M and help him to care for J.

[12]        Mr. M’s criminal history began in 2008.  It comprises 15 convictions for theft and related offences, one for dangerous operation of a motor vehicle (for which he received a 7 month jail sentence in 2010), one for assaulting a police officer (for which he received a 5 month jail sentence in 2010), one for assault with a weapon (for which he received 3 years probation in 2010) and six for breaches of probation or recognizance.  He attributes his criminal behaviour to his drug addiction.  Until his arrest in November, 2016, he was an active user of heroin and methamphetamine.  He says that he is not now a drug addict, and that he has not used illicit drugs since November, 2016.

[13]        In the autumn of 2016, Mr. M attended a residential treatment program for drug addiction, but left the program without completing it.  In 2017, he attended several programs offered by public health authorities in Edmonton.  The focus of those programs was on personal development and life skills, rather than substance abuse.

[14]        J is living in the foster home in which he was first placed in February, 2015.  Ms. Alyward reports that he is doing well, and that he is attending preschool and meeting all of his developmental milestones.  Ms. Alyward describes him as a happy child, who engages constructively with his peers and with members of the foster parents’ extended family, some of whom have expressed an interest in adopting him.

[15]        Ms. Alyward says that, if a continuing custody order is granted, the Ministry will begin making long-term plans for J’s future.  She is prepared to consider all options, including placement with Mr. M’s extended family.  However, Mr. M has not provided the Ministry with any useful information on that subject.  As a result, Ms. Alyward is unable to assess the possibility at present.  She is also considering the expression of interest by the foster parents’ extended family.  She says that it may be possible to arrange for visits by Mr. M with J, but that Mr. M has not been responsive to her enquiries on that subject in the past.

[16]        Section 49(5) of the CFCSA provides:

[17]        A continuing custody order may not be made unless the child in question is in need of protection.  A judicial determination on that question is necessary.  Unless the determination was made on a previous application, the judge who is asked to make a continuing custody order must consider and rule upon the question: B.(B.) v. British Columbia (Director of Child, Family & Community Services) 2005 BCCA 46.

[18]        Throughout the period since January, 2015, each of J’s parents have demonstrated a consistent and absolute disregard for his needs, safety and welfare.  He has been, throughout that period, a child in need of protection.

[19]        Mr. M’s opposition to the Ministry’s application is founded upon his assertion that he is now a fully-recovered addict, whose criminal past is behind him, and who is able, with the assistance of his mother, to provide a safe, stable and loving home for J.  As a result, sections 2(b) and 2(e) of the CFCSA are important factors to consider on this application. 

[20]        I observe that section 2(b) states that “… a family is the preferred environment …”.  I do not construe this to refer only to a biological family.  Rather, it expresses a legislative preference for a family environment (which might include an adoptive family), rather than an institutional one (e.g. an orphanage).  By contrast, section 2(e) expresses a clear legislative preference for the maintenance of relationships with the family of the child’s biological parents.

[21]        I do not doubt Mr. M’s sincerity.  I believe that he sincerely wants to be a productive member of society and a good father to J.  However, his ability to achieve those objectives remains very much in doubt.  He says that he has been abstinent for the past 10 months, and is not accused of committing any crime during that period.  Assuming both to be true, 10 months is not a very long period of reformed behaviour for a person with Mr. M’s record.  Sadly, relapse is common among addicts.  Mr. M remains unemployed, and does not have stable housing.  At this time, he is not able to meet J’s needs.  In light of Mr. M’s criminal history, I conclude that it is possible, but not probable, that he will be able to meet those needs sometime in the future.  The challenge on this application is to balance the potential benefits to J of a return to his father’s care, having in mind sections 2(b) and 2(e), against the risks which that course of action might create.

[22]        In that circumstance, Mr. Cope suggests that I should make a “last chance order” under section 49(7) of the CFCSA; i.e. an order that J remain in the temporary custody of the Ministry for a period of 6 months to allow Mr. M time to demonstrate the necessary parenting capacity.  For the reasons which follow, I do not think that a “last chance order” should be made in this case.

[23]        The risks to J of a “last chance order” are not limited to those which would manifest if Mr. M were to relapse into criminal behaviour.  A return to Mr. M’s care would create real risks of harm even if Mr. M were successful in his self-rehabilitation.

[24]        I have no doubt that J was strongly attached to his mother, who was his primary caregiver for the first 20 months of his life.  His attachment to his father was probably less strong, simply because Mr. M was a weekend parent.  J certainly suffered an emotional loss when his parents abandoned him at age of 20 months.

[25]        Children who spend extended periods in foster care commonly attach to their foster parents, in the same fashion as they did to their biological parents.  It is emotionally harmful to children to be separated from attachment figures.  If a child who has attached to his foster parents is returned to his biological parents after an extended period in foster care, the child commonly suffers a second time and endures a grieving process similar to that which the child suffered on the initial separation from the biological parents.  This experience and its sequelae were the subject of a study by an interdisciplinary team at Sainte-Justine Hospital in Montreal, led by Dr. Yvon Gauthier.  The published result of their study is entitled “Clinical application of attachment theory in permanency planning for children in foster care:  the importance of continuity of care”, and is found in Infant Mental Health Journal (2004) Vol. 25(4), pages 379 - 396.  Under the heading “Conclusions”, the learned authors wrote:

[26]        J has now been in the care of his foster parents for a continuous period of 23 months, and is doing well.  If I make a “last chance order”, he will remain in their care for another six months while we await progress in Mr. M’s rehabilitation.  J is at an age when his attachment to his foster parents is of critical importance to him.  If he were to return to his father’s care at this stage, he would suffer an emotional loss comparable to that which he suffered when his biological parents abandoned him in February, 2015.  Mr. M will remain at risk for relapse for the rest of his life, and his prognosis will always be uncertain.  If Mr. M were to relapse after J were returned to him, J would suffer a third loss of a parental attachment figure, with attendant emotional trauma.  

[27]        The statute mandates consideration of the importance of kinship ties and existing attachments to biological parents, and emphasizes the importance of a family environment for a child.  In this case, those factors are outweighed by the near-certainty of emotional harm to J if he is removed from the care of his foster parents, and by the risk that Mr. M may relapse into criminal behaviour.  In my judgment, the decisive factor is J’s need for stability and permanency in his caregivers.  That factor mandates that a continuing custody order be made now.