IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The Director of Child, Family and Community Service (the “Director”) applies for continuing custody of K.C.J.B., born [omitted] (“K.(2)”), under section 49(5) of the Child Family and Community Service Act (the “Act”). K.(2)’s mother is A.B. (“A.”). K.(2)’s father is B.J.D. Mr. D. has not participated in parenting K.(2) and he was served with notice of the Director’s application but he did not participate in the proceeding.

[2]           A. has four additional children who are not subject to this court application. B. is A.’s oldest child and he is [omitted] years old and lives independently. K.(1) is [omitted] years old and lives with A. V. is [omitted] years old and lives in care of the Director pursuant to a Voluntary Care Agreement. J. is [omitted] years old and lives with his natural father, A.I. At the time of the removal, K.(1), V., J. and K.(2) lived with A.

[3]           A. has lived in Mission, BC, for 8 years and she has lived in her current residence for approximately 4 years. In 2005, A. was in a serious motor vehicle collision. She suffers from daily pain as a result of the collision, a tumour that is located on her spine, and spina bifida.

[4]           The Director removed K.(2), K.(1), V. and J. from A.’s care on April 20, 2015. The Director’s protection concerns were the state of A.’s home, her mental health, her incapacity caused by pain, her inability to cope with parenting and her misuse of prescription and illicit drugs.

[5]           Following the removal, the Director placed J. with Mr. I. and the Director supervised J.’s care for one year, which is the maximum length of time permitted by the Act. The supervision order ended and J. continues to live with Mr. I. K.(2), K.(1) and V. were placed in a Ministry-approved foster home. K.(1) decided that she did not want to reside in care and she returned home to A. On October 13, 2015, the Director filed a Form B with the court to confirm that it was withdrawing from the child protection proceedings concerning K.(1). V. also decided that she did not want to reside in care and so she returned home to A. On July 12, 2016, the Director filed a Form B to confirm the withdrawal from the child protection proceedings concerning V.

[6]           The Director placed K.(2) with her maternal grandmother, S.T. in June of 2015.

[7]           An interim custody order under s. 35(2)(c) was granted, by consent, on May 12, 2015. A three month temporary custody order under s. 41(1)(c) and s. 60 was granted on July 14, 2015. That order was extended. The total period of temporary custody as prescribed in s.45 of the Act would have expired on July 14, 2016 because K.(2) was under the age of [omitted] when the initial temporary custody order was granted. For reasons that were not explained to me, the Director did not apply to extend the total period of temporary custody until long after that time period had expired. In fact, the Director’s application for continuing custody was filed on August 9, 2016, which is a date beyond the time limits set out in s.45. On July 18, 2017, a court order extended the total period of temporary custody until the conclusion of the continuing custody hearing.

[8]           When the matter finally came before me for hearing, counsel advised that the time estimate was in error. The hearing was set for four days. I directed counsel to schedule continuation dates. Unfortunately, counsel’s time estimate was again inaccurate, such that the dates for continuation were insufficient and further continuation dates were scheduled. Ultimately, the hearing took place over 12 days with the necessity for written submissions because I refused to allow counsel to further delay to deliver oral submissions. I note this chronology only because s. 2(g) of the Act clearly states that child protection matters should be resolved in a timely manner. The conduct of this case was not timely. The resulting delay is most unfortunate for K.(2).

[9]           All of the previous court orders in relation to K.(2) were with the consent of A. A protection finding has not been made by the court. Before an order can be made under s. 49(5) of the Act, the court must find that the child is in need of protection [see B.(B.) v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46].

[10]        The sections of the Act that I must consider in determining if K.(2) needs protection are sections 40 and 13. Section 13 of the Act consists of a non-exhaustive list of circumstances upon which a child needs protection. The Director relies upon the following subsections:

[11]        Section 40 states:

[12]        The wording of s.40 of the Act requires the court to determine if the child needs protection. This means that not only must the court consider the need for protection at the time of removal but the current circumstances. If the court determines that the child does not need protection, the child must be returned to the parent apparently entitled to custody. In this circumstance, the court does not proceed to an analysis of the legal test under s.49(5)(a) and (b) of the Act.

[13]        The Director refers to s. 30(1)(b) of the Act and argues that the Director had the authority to remove K.(2) because it had reasonable grounds to believe that she was in need of protection and there were no other less disruptive measures available to adequately protect K.(2). A. argues that the Director did not consider other less disruptive measures such as a supervision order rather than a removal. I find that the existence of less disruptive measures at the time of removal is not a factor to consider when assessing the need for protection. In my view, the first task before me is to decide whether K.(2) is in need of protection. If that finding is made, then I would consider less disruptive measures in conjunction with the plan of care and in determining what order is in K.(2)’s best interests [see Re S.(J.), [1998] B.C.J. No. 1443 (QL) (Prov. Ct.)].

[14]        If the child needs protection, the court must then consider the provisions of section 49(5):

[15]        In applying the analysis in section 49(5)(a) and (b), the Act provides that the court must also consider the provisions in s.49(6):

[16]        If the court does not make a continuing custody order, the court must make one of the orders in ss. 49(7) and (8) of the Act:

[17]        I am also guided by sections 2 and 4 of the Act:

[18]        The Director has the burden of proving that the child needs protection and the onus of proof is on a balance of probabilities.

[19]        The issues that I must decide are:

[20]        The Director argues that K.(2) was in need of protection at the time of the removal pursuant to sections 13(1)(d) and 13(1)(h).

[21]        The Director points to the condition of A.’s home, her mental health issues, her incapacity caused by pain, her inability to cope with parenting, and her misuse of prescription medication and illicit drugs. The Director argues that the circumstances that led to the removal have not changed and will not improve in a reasonable time. The Director asks the court to pay particular attention to the past conduct of A. in the care of her other children, B., K.(1) and V. The Director argues that the risk of harm to K.(2) has not been ameliorated and therefore the court must make the continuing custody order. The Director also argues that it’s plan of care, namely for K.(2) to remain in the home of Ms. T. and to transfer guardianship to her, is in K.(2)’s best interests. K.(2) is doing well in her placement and Ms. T. is able to meet all of K.(2)’s needs. K.(2) will remain with family and continue to have familial relationships.

[22]        A. argues that K.(2) was not in need of protection at the time of removal and alternatively, if she was in need of protection, she is no longer in need of protection. A. argues that circumstances since the time of the removal have changed dramatically and the risk of harm to K.(2) is non-existent. A. takes issue with the plan of care, in that she believes that Ms. T. will not permit ongoing contact between K.(2) and her siblings, K.(1) and V., or A.’s grandchildren. A. also takes issue with Ms. T.’s religious views. A. argues that the continuing custody application should be dismissed and that K.(2) should be returned immediately. A. will cooperate with the terms of a supervision order if such order is in K.(2)’s best interests.

[23]        The Director called as witnesses the family service social worker, Jennifer Richmond, the guardianship social worker, Heather Willard, family service social worker, Sarah Vanbuschbach, family support worker, Louise Tucker, therapist Jane Beaumont, and S.T. A. gave evidence on her own behalf and she called her daughter, K.(1), as a witness.

[24]        K.(2) was described as a bubbly, affectionate and happy [omitted] year old girl. She is meeting her milestones and does not have any behavioural or health concerns. K.(2) is in grade [omitted] and lives in [omitted], BC. Her [omitted] report card confirms that she was at grade level in all aspects of her learning. She has participated in a number of extra-curricular activities such as dance, swimming lessons, skating lessons, and gymnastics. Ms. T. states that K.(2)’s number one favourite person is A. and number two is J.

[25]        The Director filed as Exhibit 4, a six inch binder of documents which consisted of various Ministry records, social worker notes and court documents.

[26]        Sarah Vanbuschbach is a family service social worker and she, in consultation with her supervisor, made the decision to remove K.(2), K.(1), V. and J. from A.’s care on April 20, 2015.

[27]        Ms. Vanbuschbach had conduct of the family service file between September of 2014 and September of 2015. When she first took conduct of the file, all 4 children were residing with A. in Mission, BC. The Ministry had referred A. to several support services and Ms. Vanbuschbach was directed to follow up with the service providers. In the fall of 2014, A. was seeing a counsellor, Bob Gaskell, at Mission Community Services to address issues of working with J. on his ADHD behaviour and to address issues of A.’s own childhood trauma. When giving her evidence, Ms. Vanbuschbach was shown written reports of Bob Gaskell that were included in Exhibit 4. Ms. Vanbuschbach stated that she was not familiar with the reports and she did not review them before coming to court. She stated that she did not have a lot of interaction with Bob Gaskell and she may have talked to him on the phone. A. was seeing her personal counsellor regularly and written reports were prepared.

[28]        In September of 2014, V. was seeing a Child and Youth Mental Health Worker because she suffered from anxiety and was “cutting” herself. Ms. Vanbuschbach stated that the counselling was already in place when she was assigned the family service file. She stated that she would have met and talked to the counsellor in October of 2014 but she does not recall specifically what information she received. She stated that A. was supportive of V. seeing a counsellor and that A. transported V. to some of her counselling appointments. She stated that V. appeared to find the counselling of assistance. When asked if she received any reports of increased or decreased “cutting”, Ms. Vanbuschbach could not recall.

[29]        In the fall of 2014, K.(1) was seeing a suicide prevention worker. Ms. Vanbuschbach stated that K.(1) had trouble with emotions and that she was showing signs of suicidal ideation. She stated that she did consult with the suicide prevention worker who indicated that K.(1) was opening up in her sessions and was feeling better.

[30]        Ms. Vanbuschbach stated that in the fall of 2014, K.(1) was not attending school and she was not sure if V. was attending school. She stated that J. was in [omitted] and had some absences and lates. When asked if she spoke to A. about school attendance, she said that she did but she could not recall the details. Ms. Vanbuschbach went on to say that she recalls A. explaining that she was struggling to get the children to school because she was in pain, which affected her ability to sleep and her ability to get up in the morning. When asked if she assisted A. in developing strategies to address this problem, she could not recall. Ms. Vanbuschbach stated that she did tell A. to get the children to school but could not recall the details of that discussion or A.’s response. Ms. Vanbuschbach could not recall if she obtained attendance records from the schools.

[31]        Ms. Vanbuschbach was concerned about the state of A.’s home. When at a home visit, she observed that A.’s home was disorganized and cluttered. She saw dirty dishes in the sink and in K.(1)’s and V.’s bedrooms, laundry piles in the eating area and living room, clothing and other items on the stairs leading to the upstairs bedrooms. Of particular concern was that the clutter on the stairs created a hazard if the family had to leave the house in an emergency.

[32]        Ms. Vanbuschbach determined that A. did not have a routine or schedule in place. For example, the children did not appear to have set bedtimes so they were up late at night and then slept late in the morning. K.(1) and V. did not assist at all in doing chores in the home, which resulted in parent-teen conflict. Ms. Vanbuschbach believed that K.(1) and V. were of sufficient age that they should be doing chores and looking after their own rooms. She discussed this with K.(1) and V. and they initially agreed to help but then stopped. A. agreed to continue to work with a family support worker to help de-clutter and organize the house and to work on a schedule and routine for the family.

[33]        Louise Tucker, family support worker with Mission Community Services, began working with A. and the children in approximately March of 2014. Ms. Tucker was not tendered as an expert witness. She stated that she was asked to work with A. to set boundaries and clear expectations with the children and organize and tidy the house. Ms. Tucker would not assist hands on with the goal of organizing and tidying the house, although asked to do so by Ms. Vanbuschbach, but would assist A. with coming up with ways to achieve this goal.

[34]        Ms. Tucker observed some progress towards the goals in March through to June, 2014. Ms. Tucker went on vacation for the month of July and then took a 3 month leave of absence. In her absence, another worker was supposed to work with A. Ms. Tucker did not see any reports from the replacement worker and therefore she could not determine if this worker actually attended A.’s home. Ms. Tucker returned to work with A. in November of 2014 following a new referral from Ms. Vanbuschbach. Ms. Tucker attended the home and found that the condition of the home had deteriorated.

[35]        Ms. Tucker described the home as being extremely cluttered, with laundry piles in the eating area and laundry area. She described dirty dishes in the kitchen that left very little clear counter space. She described a large amount of toys and clothing spread about the living room. The stairs to the upstairs bedrooms were almost impassable because of clothing, baskets and boxes that were left on the stairs. The upstairs hallways were also crowded with various boxes. The bedrooms were in similar disarray with clothing all over the floors. K.(2) and J. slept in a bunkbed in a large closet or storage area upstairs. That area was so cluttered that K.(2) and J. could not access their beds.

[36]        Ms. Tucker states that at this time, she believes that K.(1) and V. were not attending school but she does not have any specific information about their attendance. She stated that K.(1) and V. were struggling socially at school but they did not have academic struggles. Ms. Tucker could not recall if J. was attending school. Ms. Tucker was asked if she had any information about why the condition of the home had deteriorated. Ms. Tucker was careful to say that she could only speculate that A. was overwhelmed and fatigued.

[37]        Ms. Tucker’s first goal for A. was that she clear the stairwell so that the family had safe egress. Ms. Tucker also requested that A. clear an area of the living room so that K.(2) and J. could have a play area. A. accomplished these tasks quickly.

[38]        In January of 2015, Ms. Tucker worked with A., K.(1) and V. on parent-teen conflict. They met only a few times and it was difficult to get the teenagers to engage. K.(1) and V. reported to Ms. Tucker that they did not trust their mother because she was not consistent in her parenting. They also said that they were angry that their mother would constantly whine about having to do all the household chores. In response to these complaints by the teenagers, Ms. Tucker talked to A. about her listening skills, tone and body language and how to validate the girls and make them feel heard.

[39]        In March 2015, the home deteriorated further when the family suffered from an outbreak of lice. A. had to strip all the bed linens and wash all of the clothes in the home with a specialized cleaning product in an effort to eradicate the infestation. A. also had to treat the children’s hair with a specialized product. Ms. Tucker observed that A. was in a lot of pain because of the additional work and was overwhelmed. Ms. Tucker stated that the children did not help A. with these extra tasks.

[40]        In February of 2015, A. reported to Ms. Tucker that V. had hit J. A. said that she had set boundaries with V. about this issue. In March of 2015, A. again reported to Ms. Tucker that V. had hit J. Ms. Tucker contacted the Ministry because she was concerned that A. was overwhelmed and could not cope.

[41]        On March 25, 2015, A. arranged for K.(2) and J. to stay with a family friend, K.S., so that A. could focus on eradicating the lice outbreak and get the home in order. K.(1) and V. remained with A. Ms. Tucker met with A. and K.(1) on March 30, 2015. K.(1) reported that A. was up for the past 4 nights trying to get the house clean. K.(1) reported that she was concerned for her mom who was exhausted. Ms. Tucker observed that A. looked drowsy and she closed her eyes at one point during the meeting.

[42]        Ms. Tucker met with A. on April 2, 2015 and observed that the condition of the home was now worse. A. stated that she was frustrated with K.(1) and V. because they were sleeping all day and refusing to go to school. They also did not assist A. with any of the household chores. Ms. Tucker states that during this meeting, A. was talking about having J. and K.(2) home because A. thought they were more compliant and easier to deal with than the two teenagers.

[43]        Ms. Tucker contacted the Ministry to “document” her concerns about A. taking J. and K.(2) back home. She wanted to document her concerns because Ms. Tucker was leaving on vacation for two weeks.

[44]        When Ms. Tucker returned from vacation on April 13, 2015, she contacted the Ministry social worker to discuss the concerns about A. coping with parenting. Ms. Tucker also contacted A. to arrange a meeting. A. was away at a meditation retreat from April 11 to 19, 2015 and so an appointment was set for April 20, 2015. A. did not appear for the appointment and Ms. Tucker learned that all 4 children had been removed by the Ministry that same day.

[45]        While Ms. Tucker was working with the family, Ms. Vanbuschbach continued to monitor A. In addition to the issue with the cleanliness of the home, Ms. Vanbuschbach was concerned about the parent-teen conflict in the home and the reports she received about V. being rough with J. Ms. Vanbuschbach did not observe this roughness herself and she does not recall if she spoke to A. or V. about this issue.

[46]        Ms. Vanbuschbach asked Ms. Tucker to help A. devise a schedule and routine in the home. In particular, a bedtime for the children who were reported to be up far too late at night and sleeping long into the day. Ms. Vanbuschbach stated that she received reports that J., V. and K.(1) were not attending school and that K.(2) was not attending day care as directed by the Ministry.

[47]        A. had sought out assistance from K.(1) and V. in looking after the younger two children in the evenings. Ms. Vanbuschbach told A. that she could not have K.(1) and V. as caregivers because of their mental health issues (the suicidal ideation and cutting).

[48]        Ms. Vanbuschbach stated that A.’s biggest barrier in coping with her home and parenting was that A. was in constant pain relating to the motor vehicle collision. A. had a prescription for oxycodone for her pain. Ms. Vanbuschbach did not follow up with A.’s doctor to determine how much medication was prescribed and the side effects, if any. She stated that she also learned that A. was taking more than the prescribed amount of medication. When giving her evidence, Ms. Vanbuschbach candidly stated that she did not know where she obtained that information. She later stated that K.(1) and V. told her that A. was taking too much medication. Ms. Vanbuschbach cannot recall if she discussed this issue with A.

[49]        In February of 2015, Ms. Vanbuschbach received information from the counsellors for K.(1) and V. that the girls had stopped attending. She does not remember the reason the girls stopped attending or if she followed up with A., K.(1) and V.

[50]        Ms. Vanbuschbach states that initially, when A. arranged for K.(2) and J. to stay with K.S., this was a plan made by A. and not a formal agreement with the Ministry. At some point before April 11, 2015, Ms. Vanbuschbach had a meeting with Ms. S. and A. to develop a formal safety plan to require that K.(2) and J. reside with Ms. S. until A. cleaned her home. A. could visit with J. and K.(2) at Ms. S.’s home in the evenings. At this time, A. had made little progress in clearing the clutter and cleaning the home. K.(1) and V. were not willing to help with this task.

[51]        Ms. Vanbuschbach made the decision to remove all 4 children from A.’s care on April 20, 2015. Her evidence was that the Ministry received a report from Ms. S. that A. was intending to bring J. and K.(2) home. The Director took the view that the home was in such poor condition that it was not safe for J. and K.(2) to live there. She does not recall if she talked to A., in advance of the removal, about this report from Ms. S. Other concerns were K.(1) and V. not attending school, they were no longer attending the mental health counselling and therapy, A.’s pain appeared to be interfering with her ability to care for the children, and A. may have been using illicit drugs.

[52]        In cross-examination, Ms. Vanbuschbach stated that she did not receive the call from Ms. S. about A. retrieving J. and K.(2). She stated that another person at the Ministry took the call.

[53]        Before the children were removed, Ms. Vanbuschbach arranged for the Ministry to hire a company to perform a deep clean of A.’s home. Documents in Exhibit 4 indicate that the company first visited A.’s home on April 9, 2015. By the end of July 2015, the deep clean was completed. Ms. Vanbuschbach attended the home after the company completed the job and observed that the home looked fantastic. The clutter was removed and the house was clean.

[54]        Ms. Vanbuschbach still had concerns about A.’s ability to manage pain. A. had completed the meditation retreat but was still suffering from daily pain. A. was working on a referral to a Pain Clinic. Ms. Vanbuschbach wanted A. to complete the program at the Pain Clinic before the children were returned. Ms. Vanbuschbach had no idea how long it would take A. to complete this program.

[55]        Following the removal, Ms. Vanbuschbach arranged for A. to have supervised access with the children in a public place. K.(1) and V. attended some of the supervised visits but then decided not to go. They were not comfortable going to the offices of Mission Community Services for visits and they also found it too difficult to have visits with the younger children present. The older two girls wanted one on one time with A.

[56]        As indicated, J. was placed with his father, K.(2) was placed with the maternal grandparents and K.(1) and V., after brief stays in foster care, both returned home to live with A.

[57]        A. was in a motor vehicle collision in 2005 which caused injury to her back. In the course of investigating her injuries, medical specialists discovered that A. has a tumour wrapped around her lower spine and spina bifida. Prior to the collision, A. was not aware of the tumour. Because of the placement of the tumour, she cannot have it surgically removed. The tumour presses against the nerves in her spine and causes her to suffer from daily pain and have numbness in her limbs. She takes gabapentin, naproxen and oxycodone for the pain as prescribed by her medical doctor. A. states that she takes a low dose of oxycodone.

[58]        A. attended the meditation retreat as recommended by her personal counsellor from April 11 to 19, 2015. The focus of the retreat was to teach her meditation techniques to assist in pain management. A. was at the retreat when the Director decided to remove the children. She has also attended the Jimmy Pattison Pain Clinic in November of 2016. She was on the waitlist for that program for approximately one year. She completed that program and it was beneficial. However, she states that she has to live with the pain because there is no surgical intervention to assist.

[59]        In December of 2016, A. met with therapist, Jane Beaumont following a referral from Ms. Richmond. It was Ms. Richmond’s view that A. suffered from mental health issues described as past trauma relating to the relationship between A. and Ms. T. and the child sexual abuse that A. suffered. It is Ms. Richmond’s view that A. needed to address past trauma issues in order to be a better parent.

[60]        Ms. Beaumont was not tendered as an expert witness. She stated that A. attended 4 counselling sessions in December 2016. During those sessions, A. appeared fatigued. A. stated that she was physically and mentally tired and that she was stressed and worried about V. Between January and March 2017, A. did not attend any sessions with Ms. Beaumont. During that time, Ms. Beaumont encouraged A. to attend counselling sessions. A. reported that she was occupied with V., who was drug addicted and living on the streets. Ms. Beaumont encouraged A. to leave V.’s problems with V.’s social worker and A.’s sister and brother-in-law and to focus on A.’s own needs.

[61]        A. returned to therapy with Ms. Beaumont in May 2017 and attended 7 sessions until the end of June 2017. During those 7 sessions, the issues that A. wanted to address were the difficulties with V. (drug addiction and suicide ideation) and the frustration over the many changes to the access visit schedule. For one session, A. brought V. to see Ms. Beaumont because V. was appearing suicidal. Ms. Beaumont did see V. and work on the terms of a safety plan.

[62]        Ms. Beaumont stated that although she was willing to help V., who was in crisis, she was concerned that this took time away from A.’s issues. Ms. Beaumont stated that her focus was on A., not V. Ms. Beaumont stated that A. was frequently side-tracked by dealing with problems aside from her own therapy goals. For example, V. would go missing and A. would focus on finding V., miss sessions and reschedule. These efforts took time which would have been better used to focus on A.’s own therapy goals, according to Ms. Beaumont.

[63]        Ms. Beaumont stated that over the 7 sessions, she observed a small shift in A.’s perspective. At the end of the 6 month contract, Ms. Beaumont left the employ of Mission Community Services. The contract was renewed and Ms. Beaumont attempted to transfer the file to another therapist. A. attended a few sessions with the new therapist but did not find a connection with her. A. did not attend further sessions.

[64]        It is Ms. Beaumont’s view that a normal therapeutic journey is 18 months to 2 years. She stated that working on issues of past trauma was not a stated goal provided by Ms. Richmond. Ms. Beaumont stated that working on current issues will resolve the old issues because a new sense of self will heal the old sense of self.

[65]        A. denies that she consumes illicit drugs. She was addicted to drugs as a teenager. She states that she has taken cocaine and she has consumed marijuana but at present she is clean of all drugs other than those prescribed by her doctor. She states that she last used cocaine in May of 2010.

[66]        While the children have been in care, the Ministry has received reports of suspected drug use by A. In 2016, A. attended a family gathering at her sister-in-law’s home. Ms. T. reported to the Ministry that A. was talking quickly, unsteady on her feet and going to the bathroom frequently. Ms. T. stated that A. was holding her nephew who was newly born, purportedly while A. was unsteady on her feet.

[67]        A. stated that she was not using drugs as alleged. She was not acting strangely but states that she was uncomfortable being with some of her extended family. She was permitted to hold and carry a new born baby at this family event. She was also driving B., his then girlfriend, and B.’s young daughter. A. states that if her family had concerns for her sobriety, they would not have permitted her to hold the baby or to drive. Ms. T. did not speak with A. during or following this family gathering about the suspected drug use.

[68]        In February 2016, Ms. Tucker was supervising an access visit and saw that A. had dropped the french fries that she was eating, twice, and also dropped her car keys. Ms. Tucker interpreted this as signs of intoxication and took A.’s keys away and insisted that she not drive home. A. states that she repeatedly explained to Ms. Tucker that numbness of the hands is a symptom that A. frequently suffers from because of the tumour that presses against the nerves in her spine. A. states that she often drops things. Ms. Tucker offered to drive A. home but A. was angry about how she was treated and left at the end of the visit on foot.

[69]        Beginning in September of 2016, K.(2)’s visits moved to A.’s home. The first hour of the visit was supervised and the remaining 1 ½ hours were unsupervised. There was one mid-week visit and one weekend visit per week. In January of 2017, K.(2)’s visits became fully unsupervised. The schedule changed so that A. went to see K.(2) in Port Coquitlam for the mid-week visit, which was in a public place. The weekend visit remained at A.’s home.

[70]        In late March 2017, the visits changed again. Ms. T. had reported to the Ministry that K.(2) was exhibiting behavioural problems. K.(2) had difficulty leaving the visits at A.’s home and would become very emotional. Ms. T. gave evidence that she had difficulty managing K.(2)’s emotions and asked that the visits not take place in the home. Ms. T. also said that she was concerned that A. was telling K.(2) to keep secrets. The secret was apparently that K.(2) would be coming home soon.

[71]        Ms. Richmond and Ms. Willard stated that Ms. T. had also reported that K.(2) had temper tantrums and nightmares during which she would call out “No” during the night. It was reported that A.’s home smelled of marijuana, that V. was living with A. and still actively using drugs and that K.(1)’s boyfriend was in the home. I note here that Ms. T. did not give this evidence when she testified.

[72]        Following this report, the Ministry changed the access parameters such that A. could visit with K.(2) only in public places and not in A.’s home.

[73]        Ms. Richmond gave evidence that the visits changed again in June of 2017. She stated that the Ministry had received reports that A. was using drugs. The Ministry decided to reinstitute supervision of all of the access visits.

[74]        The Ministry asked A. to participate in drug testing. A. initially tested positive for marijuana in addition to opiates (codeine and morphine). The drug tests that were required by the Ministry confirm that between August 18, 2017 and August 30, 2017 she was clean of marijuana and opiates. Social worker Richmond decided to discontinue the drug tests because they were clean and she saw no indication that A. was using illicit drugs.

[75]        Despite the clean drug tests and the alleviation of the concern that A. was using illicit drugs, the Ministry continued to require that all of the access visits be supervised. Ms. Richmond gave evidence that in August of 2017, she still had concerns about the cleanliness of A.’s home. Until Ms. Richmond was assured that A.’s home was clean, home visits would not be permitted. In June of 2018, after the commencement of this hearing, the visits were unsupervised but the Director still required that they occur in a public place and not in A.’s home.

[76]        A. states that her house was messy and cluttered at the time of removal. She does not deny that she was having difficulty managing. She states that she was suffering from pain and was getting no help from anyone, including K.(1) and V., with the housework. She arranged for K.(2) and J. to stay with Ms. S. so that she could focus her attention on getting the house clean. She also wanted to put some distance between V. and J. because A. was growing more and more concerned about V. being rough with J.

[77]        She states that she made those arrangements for the children and that she did her best to try to clean the house. She states that it was overwhelming and that she could not get it done on her own because of her issues with pain.

[78]        A. states that she was able to get J. to school. She states that K.(1) and V. started to refuse to go to school because they both suffered from anxiety and bullying. A. explained that the bullying began years prior and was due to their participation, at that time, in the Jehovah Witness faith. She states that the girls spoke openly about all non-believers going to die and that this did not make them popular. They also could not participate in “normal” childhood activities such as birthday parties, Halloween, and Christmas.

[79]        A. states that she always had the children occupied in extra-curricular activities such as dance and other sports. At the time of removal, both K.(2) and V. attended dance classes. She states that when K.(1) and V. began to suffer from the symptoms of anxiety, she sought out assistance by going to Child and Youth Mental Health and connecting them to counselling services. A. also sought out her own personal counselling.

[80]        A. states that she did speak to Ms. Tucker about wanting to have J. and K.(2) at home. However, she denies saying that she was going to pick them up. A. states that she was discussing her desire to have them back home in general and that she did not state that she was going to pick them up. A. states that she did not have a conversation with Ms. S. about picking up J. and K.(2). At the time of this alleged conversation, A. was away at the meditation retreat.

[81]        The removal of all 4 children was a shock to A. Ms. Vanbuschbach did not ask her if she told Ms. Tucker and Ms. S. that she was going to bring J. and K.(2) home.

[82]        A. was sexually abused by a member of the Jehovah’s Witness faith when she was a young child. The boy who assaulted her was age 10 and she was age 4 and the abuse continued for approximately 6 years.

[83]        Ms. T. stated that A. first consumed alcohol at the age of 10. The alcohol was supplied by Ms. T.’s father-in-law. A. then began to use marijuana followed by other hard drugs. At the age of 13, A. moved to a friend’s home with the consent of Ms. T. A. began working nights and attended school during the day. A.’s drug use continued and at the age of 16, Ms. T. arranged for A. to be admitted to a residential drug treatment facility.

[84]        While at the facility, A. disclosed to Ms. T. that she had been sexually abused. Following that disclosure, Ms. T. confronted the family of the abuser and cut off all communication with the family. Ms. T. states that she tried to discuss the issue further with A., but A. was not open. A. states that Ms. T. did not discuss the abuse after the initial disclosure. A. states that they just never talked about it again.

[85]        A. became pregnant when she was 16 and gave birth to B. when she was 17. She initially cared for B. but she continued to struggle with drug use. Eventually, Ms. T. and her husband took B. to live with them. B. was raised by his grandparents. A. continued in her addiction until becoming pregnant with K.(1).

[86]        A. met Mr. D. and had two children with him, K.(1) and V. That relationship broke down and A. states that she was the victim of domestic violence. She then met and married Mr. I. She had one child with him, J. Life with Mr. I. appeared to be going well until issues developed between Mr. I. and his step-children. Both K.(1) and V. state that Mr. I. was rough with them. A. sided with K.(1) and V. and the marriage broke down.

[87]        A. states that K.(1) and V. are both smart and they always did well academically. This is corroborated by K.(1), who is one course short of graduating high school at the time of this hearing, and by Ms. Willard who confirms that despite all of V.’s difficulties with addiction and missing school, V. is back in school at the grade level for her age.

[88]        A. does not believe that she has a supportive family. She states that her mother, Ms. T., did not help her when she needed help. For example, when she needed assistance with clearing the clutter and cleaning her house, her mother would not help. Instead, her mother arranged for a meeting with the Ministry to tell the Ministry that they should pay for weekly housekeeping or nanny services for A. However, Ms. T. did help A. financially by paying for A.’s chiropractic treatments following A.’s motor vehicle collision. This allowed A. to obtain treatment when needed and when A. received her court settlement, A. reimbursed Ms. T. for those expenses.

[89]        A. has left the Jehovah Witness faith. Ms. T. and her husband are active in the faith. A. has made it clear that she does not want K.(2) to be exposed to that faith. Ms. T. takes K.(2) to meetings but has complied with A.’s request that K.(2) not attend Assemblies.

[90]        Ms. T. gave evidence about A.’s history of parenting since the birth of B. In terms of direct information of circumstances in A.’s home around the time of removal, Ms. T. has very little to offer. In the year prior to the removal, Ms. T. saw K.(1) and V. 2 to 3 times when she took them to visit family on Vancouver Island. She saw J. and K.(2) 2 or 3 times that year as well. Within the year prior to the removal, Ms. T. saw the inside of A.’s home once and the home was not a concern. Ms. T. was not aware that K.(2) and J. were living with Ms. S. prior to the removal. When learning that the children were removed, she did come forward to offer to take K.(2) into her home. She also indicated that she would take V. but V. refused.

[91]        V. returned home to A. in March of 2016 after she refused to live in foster care. In June of 2016, V. went out drinking with friends and was found intoxicated in the middle of the street by police officers. The Director removed V. from A.’s care. The Director withdrew from the court proceedings when an agreement was reached with A. that V. would live with her father, Mr. D. That arrangement eventually broke down and V. returned home to live with A.

[92]        V. became addicted to street drugs. A. made arrangements for V. to live with A.’s sister and brother-in-law on Vancouver Island. That arrangement eventually broke down and V. began to live on the streets and was fully entrenched in her addiction. In January of 2018, with A.’s agreement, A.’s brother drove V. to Alberta in hopes of registering V. in a secure-care residential treatment program. The Alberta authorities refused to accept a non-resident of Alberta and V. returned to BC through the assistance of child protection workers.

[93]        When V. returned to BC, she was ecstatic to see her mom. V. made promises to live with her mom and abide by the rules. She also promised to reconnect to drug and alcohol counselling. However, V. was not able to keep those promises and she soon returned to street-living and addiction.

[94]        On January 15, 2018, A. signed a Voluntary Care Agreement with the Ministry. A. was concerned that she was supporting V. while V. continued to use and engage in high-risk behaviour. A. took the view that V. needed professional assistance to deal with her addiction and that V. needed specialized care.

[95]        V. was initially placed in a staffed resource but she continued to use drugs on a daily basis. V. also continued to be sexually exploited as a means of supplying her addiction. In February of 2018, V. was hospitalized as she had threatened to end her life. In March, V. went into treatment and eventually a place was secured for her at the Daughters and Sisters program on March 28, 2018. V. stayed in that program until approximately August of 2018. V. then went to live in a Ministry approved foster home with caregivers who specialize in dealing with drug addicted youth.

[96]        At the time of the hearing, V. was doing well. She had maintained her sobriety and was attending [omitted]. She was fully engaged in drug and alcohol counselling. V. and her care team, which includes A., agree that V. should remain in care and focus on her treatment and recovery.

[97]        Guardianship social worker Heather Willard stated that A. was involved in the treatment plan for V. A. communicated directly with the treatment program, signed all of the necessary consent forms, participated in the case conferences, attended some counselling sessions with V., visited V. at the treatment centre, and had V. home for weekend visits. A. acknowledges that V. should not return home until she has fully recovered.

[98]        K.(1) has suffered from mental health issues, namely anxiety and depression. After the removal in 2015, K.(1) was admitted to the psychiatric unit due to suicidal ideation. When K.(1) was released from hospital, she resided with her mother. K.(1) is now [omitted] years old and she has a daughter, R., who will be [omitted] years old in June 2019. K.(1) is R.’s primary caregiver. When K.(1) was first born, the indigenous child protection agency was contacted. R.’s father is indigenous. The agency took the view that until A.’s home could be checked and investigations completed, K.(1) could not live with R. in A.’s home. K.(1) then resided at the home of R.’s father. The agency did a home check and determined that A.’s home was appropriate. The agency closed its file.

[99]        In the 2017-18 school year, K.(1) attended [omitted] in Abbotsford, BC. R. attended the day care at the school. A. drove K.(1) to school each day and picked her up or they took the bus home. K.(1) has one more course to complete in order to graduate.

[100]     At the time of the hearing, K.(1) was working nights as a chicken catcher. A. provides child care for R. so that K.(1) can work. K.(1) continues to see a mental health counsellor and A. assists by driving K.(1) to the appointments and providing child care during the appointments. K.(1) and A. share household chores. If one cooks, the other does the dishes. K.(1) takes care of the laundry for herself and R. K.(1) provides the care for R. when she is at home. A. is responsible for R.’s care when K.(1) is working.

[101]     K.(1) stated that she has a close relationship with her mom. She remembers her mom being active with her schooling by driving her to and from school, by signing her agenda and attending parent teacher meetings. She recalls her mother enrolling her in and attending extra-curricular activities. She acknowledges that the state of the home at the time of removal was poor but she stated that the home was not always like that. She recalls that when the lice infestation occurred, the house became worse because of the increased laundry. She does not recall that the family received much assistance from extended family, if at all.

[102]     K.(1) stated that the current condition of the home is nothing like it was at the time of removal. She stated that sometimes they do not do the dishes until the next morning. She states that the household laundry now fits in the laundry basket and that her bedroom floor is now visible.

[103]     K.(1) acknowledges that when she was younger she reported to Ms. Tucker that she felt resentment towards A. because A. would not always listen to K.(1) and was unfair to K.(1). However, looking back on things, K.(1) did not like that A. was acting as an authority figure. K.(1) now realizes that was A.’s role.

[104]     The access visits since the removal have taken different iterations but generally have been one or two visits per week of between 2 and 4 hours. A. has cancelled only a handful of visits and then only because she was ill or had vehicle issues. A. attends the visits on time and engages with K.(2) appropriately during the visits. Both social workers, Ms. Richmond and Ms. Willard, state that they have no concerns with A.’s ability to care for K.(2) on a short term basis. Their concerns relate to the long term care of K.(2).

[105]     The Director removed all 4 children from A.’s care on April 20, 2015 on the grounds that A. was unable to care for the children and had not made adequate provision for their care and because the children were likely to suffer from physical harm due to neglect.

[106]     Ms. Vanbuschbach was the social worker who had conduct of A.’s file immediately before and after the removal. Many times in her evidence, Ms. Vanbuschbach could not recall significant events or conversations with A. While her involvement took place several years ago and therefore it is understandable that Ms. Vanbuschbach’s current memory would be faded, she did not appear to have the benefit of contemporaneous notes that would assist her in refreshing her memory. It is the practice of social workers to keep notes. Not only do such notes inform other social workers looking at the file at a later date, they also assist social workers in refreshing their memory with respect to events and conversations with key people. Ms. Vanbuschbach did not request to refer to notes to refresh her memory as is the usual practice.

[107]     Ms. Richmond and Ms. Vanbuschbach both gave evidence that the primary reason for the removal on April 20, 2015 was the state of A.’s home. The evidence is clear that A.’s home was in disarray and that it was not suitable for K.(2). I find that the home was unsafe because K.(2) was only [omitted] years old and there appear, based on the photographs in evidence, to be several hazards to which she would have access.

[108]     While the state of the home was unacceptable, the decision to remove on April 20, 2015 appears to be based on Ms. Vanbuschbach’s belief that A. intended to pick up K.(2) and bring her home. The Director argues that it relied upon the information provided by Ms. Tucker, Ms. S. and another caller who all reported that A. was intending to bring K.(2) home.

[109]     Ms. Tucker acknowledged at the hearing that A. said that she would like to have K.(2) home. Ms. Tucker acknowledges that A. did not say that she was picking up K.(2) at a certain date and time. Ms. Tucker did not seek clarification from A. on this point before calling the Ministry. A. states that she told Ms. Tucker that she wanted the children home but she did not say that she was going to pick them up or provide a concrete time for doing so. I find that A. was speaking to Ms. Tucker, a person whom A. regarded as a support, about her wish and desire to be reunited with her children and did not state an intention to pick them up before the house was in order.

[110]     Ms. Vanbuschbach stated that one of her colleagues received a call from Ms. S. who stated that A. told Ms. S. that A. was going to pick up K.(2). One problem with this evidence is obvious: it is triple hearsay. Director’s counsel argues that I should accept the statement of A. for the truth of its contents. In support of this position, counsel for the Director argues that the report from Ms. S. is reliable because it came to Ms. Vanbuschbach’s professional colleague and Ms. Vanbuschbach is entitled to rely on reports from colleagues in the regular course of her employment.

[111]     While it is the case that s. 68 of the Act permits the court to allow hearsay evidence, it must be hearsay evidence that the court considers reliable. Despite the existence of s. 68 of the Act, the Director has the obligation to put before the court the best evidence that it can. While I appreciate that child protection proceedings are more in the nature of an inquiry than an adversarial trial, this does not mean that the rules of evidence are simply forgotten.

[112]     The Director did not point to any social worker notes that make reference to this telephone call between Ms. S. and Ms. Vanbuschbach’s colleague. Ms. S. was not called as a witness. A. denies that she had this conversation with Ms. S. Specifically, at the time of this alleged conversation, and at the time when A. was suspected to pick up K.(2), A. was away at a meditation retreat. Because of the challenges already referred to in Ms. Vanbuschbach’s evidence with respect to her memory and the lack of contemporaneous notes, I find that I am unable to determine that this hearsay evidence is reliable and I therefore give it no weight.

[113]     The Director did refer me to an After Hours Memo in Exhibit 4. The Memo records a telephone discussion between a social worker and a caller who states that A. was in contact over Facebook to arrange to pick up the family’s dog. The caller then goes on to suspect that A. might flee with the children but then states that A. would have nowhere to go. This call was taken by a colleague of Ms. Vanbuschbach. The Director argues that this statement should also be accepted for the truth of its contents. The inference that the Director wishes the court to draw is that because A. was picking up her dog, she was also going to pick up K.(2).

[114]     A. did not deny that she wanted to arrange to pick up the family dog. The evidence contained in the After Hours Memo is simply that A. wanted to arrange for the return of her dog, not K.(2). I find that this evidence does not establish that A. was in fact intending to retrieve K.(2) before the home was in a fit condition.

[115]     I find that the evidence before me establishes that A. had made appropriate arrangements for the care of K.(2) in March of 2015 while A.’s home was unsuitable. Therefore, the Director has not proven, on a balance of probabilities, that K.(2) was in need of protection on the basis of s. 13(1)(h) of the Act.

[116]     I now turn to the remaining ground for protection, s. 13(1)(d) of the Act, that K.(2) was likely to suffer from physical harm due to neglect.

[117]     The Ministry assisted A. by paying for a deep clean of her home in the summer of 2015. In fact, those arrangements were underway before K.(2) was removed. Ms. T. stated that she was in A.’s home once in the year before the removal and the home was fine. Ms. T. reported that on the occasions when she did see A.’s home following the removal, the home was in a fine condition. Between September 2016 and March 2017, when A. was permitted access visits in her home, the condition of the home was not a concern.

[118]     During the summer of 2018, Ms. Richmond and Ms. Willard attended A.’s home to do spot checks. On one occasion, A. asked Ms. Richmond to return later because the house was messy. When Ms. Richmond returned, the house was clean upstairs and downstairs. On another unannounced visit, Ms. Richmond saw that there was some clutter in the living room and dirty dishes in the kitchen. The house was clean on the next two occasions when Ms. Richmond went to the home. Ms. Williard attended the home twice and on the first occasion, there was some clutter and some dirty dishes. On the second occasion, the home was clean. Both these witnesses indicated that the condition of the home did not present a child protection issue. Both A. and K.(1) state that the home has improved from the condition it was in at the time of removal.

[119]     I conclude that the condition of the home is no longer a child protection issue. A. may not be the best housekeeper but she is not required to be. The requirement is that the home is safe, not perfect. The evidence establishes that the condition of the home is safe.

[120]     Other concerns cited by the Director were the lack of routine in the household and A.’s apparent inability to get the children to school. It would have been helpful to have report cards or attendance records to put this allegation in perspective. K.(1) and V. were having mental health issues and bullying issues which caused them to refuse to attend school on occasion. However, both K.(1) and V. always performed well academically. K.(1) is about to graduate from high school and V. has returned to school at a grade level appropriate for her age. J. did attend school although he was reported to have some absences and lates.

[121]     While regular attendance at school is an expectation for children, I find that I am unable to conclude that irregular attendance of K.(1), V., and J. is grounds for determining that K.(2) was and is in need of protection. K.(1) and V. both suffered from anxiety and bullying which hampered their attendance at school. Even the most skilled parent may have difficulty persuading a teenager who suffers from anxiety and bullying to attend school if she simply refuses.

[122]     A. was having difficulty getting J. to school before the removal because of her issues with pain and the increased workload of cleaning the house. In the 2017-2018 school year, A. transported K.(1) to school regularly between Mission and Abbotsford, BC. I find that A. has established that she is able to employ a routine for school attendance. Accordingly, I do not find this concern to be a reason for finding that K.(2) is in need of protection.

[123]     Another protection concern was A.’s inability to manage pain and cope with parenting. These two issues were inter-related. A. was in a serious motor vehicle collision and she has physiological explanations for the pain that she suffers: the tumour and spina bifida. A. has made efforts to manage her daily pain. In the days before the removal, she attended a meditation retreat with the intention of learning new ways to cope with her daily pain. She states that she learned some techniques from that retreat. A. was on a one-year wait list to get into the Pain Clinic. She participated and learned some additional techniques. A. states that she cannot afford physiotherapy or chiropractic treatments. She is not able to work. A. is therefore left with doing yoga DVDs, stretching, meditation and breathing exercises, in addition to medication, to alleviate her pain.

[124]     Based on the evidence before me, it appears that A.’s pain management has improved since the removal. A. was observed by social worker Richmond to be carrying R. during a home visit in July of 2018. Ms. T. observed that A. is more active with K.(2) than she was in 2015 after the children were removed. K.(1) states that A. is able to look after R. and do household tasks. The supervised access visit reports indicate that A. swims with K.(2) and does other activities. A. attended each of the 12 days of hearing and I had the opportunity to observe A. in the gallery of the courtroom. A. was alert on each of the 12 days and did not appear fatigued.

[125]     The Director is concerned that A. regularly takes oxycodone. However, A. states that she is taking a low dose throughout the day and that she is in constant contact with her medical doctor. The Director has included in Exhibit 4 a PharmaNet Patient Record which lists all of the A.’s prescriptions filled between January 1, 2005 and September 10, 2010. Ms. Richmond testified that this record matches the reports received from A. about her use of medication during that time. No recent record is in evidence. The Director did not obtain A.’s medical records. If A. were taking more than the prescribed amount of medication as suspected by Ms. Vanbuschbach, that information would be revealed in a PharmaNet Patient Record or in records from A.’s physician. I am unable to conclude that A. misuses her medication or that her current prescriptions are inappropriate.

[126]     The Director also raised the issue of A. using illicit drugs. Ms. Tucker’s report about A. dropping things could relate to A.’s numbness in her fingers, as A. asserts, rather than drug use. Ms. T.’s report that A. was acting strangely at a family gathering can also be explained. A. stated that she was uncomfortable in that setting. The observation about A. talking quickly and frequent trips to the bathroom could be a result of A. feeling uncomfortable. The observation of A. being unsteady on her feet can be explained by A.’s numbness in her limbs. I do not doubt that Ms. T. was honest in describing her observations. However, Ms. T. did not speak to A. about her concerns to find out how A. was feeling that day. Ms. T. took no issue at the time with A. holding and walking around with a new born baby or driving a vehicle.

[127]     A. has submitted to drug tests at the request of the Ministry. The drug tests reveal the use of marijuana but were clear of that drug by August of 2017. The tests also indicate that opiates (codeine and morphine) were in A.’s system. The Director did not tender any evidence to clarify if the presence of opiates was because of A.’s prescription medication. In any event, the Director did not believe that it was necessary to continue with tests because they were clean and because A. was not showing any signs of illicit drug use.

[128]     A. is a recovered drug addict. There was no evidence before me to indicate that A. uses illicit drugs at present. I accept A.’s evidence that she is not using illicit drugs.

[129]     I find that A. is now able to manage her daily pain and I do not find that this is a current concern or a reason for finding that K.(2) is in need of protection.

[130]     A final concern at the time of removal was A.’s mental health issues. This was better described by Ms. Richmond as A.’s past trauma issues relating to her relationship with her own mother and the child sexual abuse. The conclusion that the Director wishes the court to draw is that A.’s past trauma issues interfere with her ability to parent K.(2) at present.

[131]     A.’s counselling with Ms. Beaumont came at a time when V.’s drug addiction and high-risk living was at its peak. A. was attempting, as best she could, to deal with V. Much of the time spent in this hearing was devoted to V., her troubling behaviour, her addiction, street-living, self-harming, suicidal ideation and sexual exploitation. I am troubled by Ms. Beaumont’s testimony where she was critical of A. for devoting time and attention to V.’s issues rather than focussing on A.’s own therapeutic goals. Any loving parent would find it difficult to focus on her own issues when faced with the horrific reality of having a child in V.’s situation. While it may have been best for A. to put herself first and push her concern for V. to the side, I cannot fault A. for not being able to do so.

[132]     The Director’s written submission is that I should accept Ms. Beaumont’s “professional opinion that [A.] needed at least twelve to eighteen months of further consistent therapy in order to discover successful parenting strategies that would work for her and enable her to be predictable for her children.” The Director did not seek to have Ms. Beaumont qualified as an expert witness. If the Director intended to ask this court to rely upon an opinion given by Ms. Beaumont, the proper procedure was not followed. I do not accept the opinion of Ms. Beaumont as submitted by the Director.

[133]     While it may be that A. did not complete the personal counselling as the Director requested, that is not determinative. I must still consider if A.’s past trauma issues present a barrier to her in ongoing parenting.

[134]     A. was an active participant in V.’s care team. A. has communicated with the care team, has signed all consent forms required from time to time, has visited with V. within the confines of the plan of care and has supported the decision making of the care team. A. found that she was unable to parent V. when V. was at the height of her addiction. V.’s father, aunt, uncle and various foster parents also could not manage V. I find that A.’s decisions to place V. in a Voluntary Care Agreement, to support the efforts of the care team, and to support V.’s ongoing placement in the specialized foster home, were made in V.’s best interests.

[135]     K.(1) has also struggled with mental health issues and has engaged in self-harming. She too has been hospitalized for suicidal ideation. K.(1) has being living with A. since 2015. She has returned to school and is very close to graduating. Of significance is that K.(1) returned to public school in 2017 after giving birth to R., has continued with personal counselling and is working. A. has supported K.(1) with her education, counselling and the parenting of R. K.(1) now completes her share of the household chores. K.(1) appeared to be a well-adjusted and mature [omitted] year old.

[136]     Counsel for the Director has submitted that K.(1)’s evidence was not credible in that it was exaggerated and minimized past problems. I disagree. It was apparent in K.(1)’s evidence that she is very close to her mother and loves her mother deeply. K.(1) is now a parent herself. Often a child does not appreciate the work of a parent until becoming a parent. K.(1) now has the benefit of being a parent and hindsight. I do not find that K.(1) was attempting to mislead the court to portray A. in a falsely positive light.

[137]     There was no evidence before me that A.’s past trauma issues were the source of A.’s inability to keep her house clean. A. was able to declutter the home without anxiety. The evidence supports the conclusion that the source of the poor condition of the home was A.’s pain levels and resulting fatigue and not some other psychological issue.

[138]     I have reviewed the supervised access visit reports included in Exhibit 4. The reports contain several examples of A. providing guidance, correction and comfort to K.(2). A. was able to set boundaries for acceptable behaviour. On one occasion, J. wanted to press the button to call the elevator but K.(2) ran ahead and pushed it causing J. to cry. A. dealt with the situation by telling J., in a soft tone, that he could push the button on the way down. J. quickly recovered and A. remembered the rule she had set and J. pressed the button when they left the visit. On another occasion, K.(2) was kicking A.’s purse. A. directed K.(2) to stop and K.(2) did not repeat the behaviour. On another occasion, J. and K.(2) were pushing each other. A. directed them to stop and the behaviour did stop. At a visit in October of 2017, K.(2) was having a temper tantrum and A. was patient and calm throughout. In the end, A. carried K.(2) out to the car at the end of the visit. These are all examples of A.’s ability to parent.

[139]     The evidence was undisputed that A. is able to demonstrate affection for her children. The supervised visit reports describe the hugs and kisses and other displays of affection. A. and K.(2) verbally express their love for each other. Ms. T. stated that K.(2) has often said that she wants to go home to live with her mom.

[140]     After reviewing the evidence as a whole, I find that I am unable to conclude that A.’s past trauma, or mental health issues as they were referred to by the Director, impairs her ability to parent K.(2) at present. Accordingly, I do not find that A.’s past trauma is a current child protection concern.

[141]     I find that the Director has not proven, on a balance of probabilities that K.(2) is in need of protection on the grounds set out in s. 13(1)(d) of the Act.

[142]     When I consider the evidence as a whole, I do not find that the Director has proven on a balance of probabilities that K.(2) is in need of protection. The issues that existed at the time of removal have been sufficiently ameliorated such that K.(2) is not at risk of harm. A.’s home is now suitable for K.(2). A. is capable of getting K.(2) to school. A. is in a much better place with respect to pain management such that she can deal with her activities of daily living. The stress that existed at the time of the removal relating to parent-teen conflict is no longer present. A. and K.(1) are able to work together and share household chores. Circumstances are much different than they were in 2015.

[143]     Having found that K.(2) is not in need of protection, I am not required to proceed further and analyze s. 49(5)(a) and (b) of the Act. I order that the Director’s application for continuing custody is dismissed and that K.(2) return to A.’s care pursuant to section 49(7)(a) of the Act.

[144]     I wish to comment on one aspect of the evidence that I found to be of concern. Ms. Richmond testified that at the end of the one year supervision order for J., she was instructed by her supervisor to advise A. that if she were to apply for guardianship or parenting time of J. under the Family Law Act, the Director would remove K.(2) from A.’s care. This advice is concerning in two ways. First, at the end of the supervision order, the Director was no longer involved with J. and Mr. I. The Director’s jurisdiction regarding J. was at an end. The issues regarding the parenting of J. are governed by the Family Law Act. If the parents could not agree on appropriate arrangements, the court has jurisdiction to hear the issue and make a decision in the best interests of J. Second, the advice may be perceived as a threat that may dissuade a parent from pursuing legal rights and remedies. The Director wields great power. The Director must always be mindful of that power and should never use that power to prevent people from pursuing relief through the judicial system.