British Columbia (Child, Family and Community Service) v. A.W., 2019 BCPC 153 (CanLII)
British Columbia (Child, Family and Community Service) v. A.W. |
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Date: |
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File No: |
F80719 |
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Nanaimo |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46
AND THE CHILD:
R.W., born [omitted for publication]
BETWEEN:
DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE
APPLICANT
AND:
A.W.
PARENT
AND:
L.S.
PARENT
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File No: |
F87068 |
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Registry: |
Nanaimo |
AND IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
L.M.S. and K.C.P.
APPLICANTS
AND:
A.W. and L.S.
RESPONDENTS
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Director: |
M. Greves |
Counsel for the Parent: |
R. Miller |
Appearing in person: |
L.S. and K.C.P. |
Place of Hearing: |
Nanaimo, B.C. |
Dates of Hearing: |
October 10, 2017, August 31, 2018, June 26 and 27, 2019 |
Date of Judgment: |
June 28, 2019 |
The Issues
[1] The Director of Child, Family & Community Service 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 the child R.W., who was born on [omitted for publication]. The effect of the order, if granted, would be that the Director would become the sole guardian of the child, with authority to consent to the child’s adoption or to place the child in the care of a person chosen by the Director.
[2] R.W.’s mother, A.W., consents to the Director’s application. R.W.’s father, L.S., has declined to take any part in this hearing.
[3] L.S.’s sister, L.M.S., and her fiancé, K.C.P., have applied to be appointed as R.W.’s guardians, pursuant to section 51 of the Family Law Act SBC 2011, c 25 (“the FLA”). Ms. H., R.W.’s maternal grandmother, has expressed an intention to make a similar application.
[4] Section 50 of the CFCSA provides that, upon pronouncement of a continuing custody order, the Director becomes the sole guardian of the child. For that reason, if I make a continuing custody order, the application by L.M.S. and K.C.P. must be dismissed, and the proposed application by Ms. H. will be moot.
[5] Ms. H. seeks an adjournment to allow her an opportunity to consult and retain counsel.
[6] Section 37 of the FLA provides that, in considering the application by L.M.S. and K.C.P. (or the proposed application by Ms. H.), I am to “… consider the best interests of the child only” (underlining added). For that reason, when considering an application under the FLA, I am not to be influenced by considerations of fairness to the applicants. By contrast, section 2 of the CFCSA provides that: (i) “… the safety and well-being of children are the paramount considerations …”; (ii) “… kinship ties and a child’s attachment to the extended family should be preserved if possible …”; and (iii) “... decisions relating to children should be made and implemented in a timely manner …”.
The Facts
[7] A.W. is the mother of two other children, each of whom has spent their childhood in the care of the Ministry of Child & Family Development (“MCFD”). For that reason, she is well-known to MCFD social workers in Nanaimo. She is also addicted to methamphetamine. R.W. tested positive for methamphetamine at birth. MCFD immediately removed him from his mother’s care and placed him in a foster home which specializes in the care of infants who have been exposed to illicit drugs in utero. He continues to live in that foster home. However, because of the specialized services which it offers and the demand for such services, that foster home is not available to R.W. in the long term. His permanent home must be elsewhere.
[8] A.W. has visited R.W. at the MCFD office from time to time. However, her attendance has been sporadic. In recent conversations with Ms. Olin, the social worker responsible for the case, she has admitted that she continues to use methamphetamine regularly and that she is not able to care for R.W.
[9] L.S., R.W.’s father, is also a methamphetamine addict, and has an extensive criminal history. He recently told Ms. Olin that he does not believe that he should be around children while he is using methamphetamine, and that he is still in active addiction. Although served with notice of these proceedings, he has taken no part in them.
[10] L.M.S., L.S.’s sister, has had regular visits with R.W., three times each week with one overnight visit each week. She reports that she is strongly attached to him, and hopes to adopt him as her own. She is engaged to K.C.P., and they plan to marry this summer.
[11] K.C.P. is a veteran of the Canadian Forces. He acknowledges past suicidal ideation and suffers from anxiety, depression and post-traumatic stress disorder, which he attributes to two causes: (i) although he did not serve overseas, many of his colleagues in the Canadian Forces were killed or wounded on duty overseas, and K.C.P. witnessed the sequelae in the course of his duties; and (ii) after his discharge from the Canadian Forces, a civilian employer threatened him with a knife. He was prescribed Ativan for his psychiatric condition, but found it to be unhelpful and no longer takes it. K.C.P. has had a number of hostile encounters with members of the RCMP, resulting in visits to the psychiatric ward at the local hospital.
[12] Ms. Olin informed me that MCFD has not yet conducted any parental capacity assessment. In particular, MCFD has not assessed K.C.P.’s parental capacity. In order to do that, she would need more information about his mental health (from his mental health professional) and his interactions with the police (from the RCMP). None of that information is in evidence on this hearing. Ms. Olin advises that MCFD will make those enquiries if and only if I make a continuing custody order.
The Adjournment Application
[13] Ms. H. seeks an adjournment to allow her time to consult counsel and to make an application for appointment as R.W.’s guardian.
[14] R.W. is now [omitted for publication] months old. The foster home in which he was placed immediately after he was born is the only home he has ever known. His attachments are to his foster mother and to L.M.S. Unless he is placed in L.M.S.’s home, he will face the challenge of forming new secure attachments to the family with which he is placed. That is not an insuperable task for a 2 year-old, but it is one which should not be delayed any longer than necessary.
[15] This hearing commenced on October 20, 2017 and was continued on August 31, 2018 and on June 26 – 27, 2019. I am advised that further hearing dates, if required, will not be available for some months, partly because of Ms. Greves’ commitments to other cases and partly because of the time needed for Ms. H. to retain and instruct counsel.
[16] As discussed below, I am of the opinion that the decision about R.W.’s long-term placement should be made by MCFD, not by me. Ms. H. is certainly one option which MCFD should consider. Given that I am not going to make the decision, further delay in this process would serve no useful purpose.
Jurisdiction to Make a Continuing Custody Order
[17] Ms. Miller points out that this Court has never adjudicated the question whether R.W. is in need of protection. Such an adjudication was unnecessary because A.W. consented to the Director’s decision to remove R.W. and place him in care. Ms. Miller submits that I cannot make a continuing custody order unless I first determine that R.W. is in need of protection. I disagree. Section 49(4) of the CFCSA directs that I must make a continuing custody order if the child’s parents are unable or unwilling to resume custody of the child. Both of R.W.’s parents have expressed themselves to be unable and unwilling to care for him. I am therefore required to make a continuing custody order.
[18] The situation would be different if I were to appoint L.M.S. and K.C.P. as R.W.’s guardians, because section 1 of the CFCSA defines “parent” to include anyone appointed as a guardian. In that circumstance, I could make a continuing custody order only if I were satisfied that L.M.S. and K.C.P. would be unwilling or unable to meet R.W.’s needs: CFCSA, section 49(5).
Identifying the Decision-Maker
[19] The object of these proceedings is to identify the person or people who will be responsible for parenting R.W. in the long term. If I appoint L.M.S. and K.C.P. to be R.W.’s guardians, they will have that responsibility. If I make a continuing custody order, MCFD will decide who will have that responsibility. MCFD might decide to appoint one or more of A.W., K.C.P. and Ms. H., or it might decide to appoint another person or people.
[20] As a result, the decision-maker is either MCFD or me. So, the question devolves to this: Am I better-qualified to make the decision than MCFD? I answer that question in the negative for four reasons:
a) I have less formal training and less experience in assessing parental capacity than does Ms. Olin.
b) I have less information, and less access to information, than does Ms. Olin. For example, I have not heard from K.C.P.’s treating psychiatrist or from the RCMP officers with whom he has had such difficult interactions in recent years.
c) A courtroom is not a good place in which to conduct a parental capacity assessment. Such an assessment is a nuanced process which is best conducted over a period of time. People generally do not present at their best in the courtroom. It is not possible to observe unstructured interactions between adults and children in the courtroom. The adversarial process is ill-suited to the assessment.
d) An assessment by MCFD is often an evolving process. One of Ms. Olin’s complaints is that K.C.P. has not been responsive to her suggestion that he engage with professionals over time to address his mental health issues. If he were to do so, MCFD might come to accept him as an appropriate parent. A judgment is not an evolving process. It is a decision made at a point in time on the evidence available.
I do not say that decisions of this kind should always be made by MCFD. In this case, the following factors are of importance. R.W. is 2 years old and has been in care for his entire life. He needs to move to his permanent home as soon as possible. There are a number of questions about K.C.P.’s mental health and his police encounters which cannot be answered on the evidence before the Court. Those questions are fundamental to his parental capacity. There is no basis for criticism of MCFD’s management of R.W.’s care, and no reason to doubt Ms. Olin’s objectivity or her capacity to make wise decisions about R.W.’s permanent home.
Disposition
[21] The application by L.M.S. and K.C.P. (action #F87068) is dismissed.
[22] The continuing custody order sought by the Director (action #F80719) is granted.
_____________________________
The Honourable Judge T. Gouge
Provincial Court of British Columbia