IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: The Director of Child, Family and Community Service (the “Director”) seeks an order under s. 17 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 as amended (the “CFCSA”), for access to three children of D.R. (the “Mother”) and D.A.R. (the “Father”). The Mother and the Father (collectively “the Parents”) oppose the making of that order.

[2]           The Director seeks the s. 17 order to access and to interview the following male children (collectively the “Children”) of the Parents:

[3]           The basis of the Director's application is its concerns founded upon reports received by the Director that Child M had inappropriately and sexually touched younger members of the extended family of the Parents and also had inappropriately touched his brother Child K.

[4]           The task of this court is to determine whether or not the Director has met the test to obtain an order under s. 17 and, if so, what terms or conditions, if any, should be attached to that order.

[5]           There are no previous Court proceedings or appearances in this matter prior to this hearing. This matter remains at the assessment stage by the Director which is part of a Family Development Response (“FDR”), as described in more detail below.

[6]           The Director's Application for an Order was filed on May 7, 2019, and came on for hearing on September 24, 2019. The decision in this matter has been reserved until today's date due in part to scheduling problems.

[7]           Evidence on behalf of the Director was provided viva voce by Cherise Johnson-Ferguson (the “Social Worker”), who is a child protection social worker and a delegate of the Director. The Social Worker has been involved with the family of the Parents (the “Family”) since January 2019. The Social Worker presently has conduct of this child protection file on behalf of the Ministry of Children and Family Development (“MCFD”).

[8]           In addition to Exhibit Number 1, which contains a number of documents and correspondence from the MCFD files, there is Exhibit Number 2, which is a copy of the MCFD “Child Protection Response Policies” Chapter 3 (last revised March 2018).

[9]           Evidence on behalf of the Parents was provided by the affidavit of the Mother sworn September 17, 2019, and filed September 23, 2019 (the “Mother's Affidavit”). In addition, the Mother provided viva voce evidence. The Father did not testify.

[10]        The Parents have been married for 16 years. The Mother is a registered nurse at [omitted for publication]. The Father is a journeyman carpenter and a site superintendent and contractor. The Parents and the Children all reside together in the same residence. As I understand it, the Children all attend the same [omitted for publication] school.

[11]        On January 9, 2019, the Parents were contacted by Constable Jody Pavesic, a member of the Saanich police (the “Police”) regarding a recently received report about Child M, then aged 13. The allegation was that Child M had touched the genitals of a three-year-old girl. Specifically, the allegation was that Child M had licked the vagina of the three-year-old during a family Christmas event (the “January Allegations”).

[12]        The Mother subsequently learned from a close relative that the three-year-old child was the cousin of Child M. The source of that information was the parent of the three-year-old child. The report to the Police was made by the Social Worker following receipt of a report by MCFD about the same January Allegations.

[13]        The Parents arranged to have Child M interviewed by the Police on January 16, 2019, in connection with the January Allegations. Child M was interviewed for at least two hours (the “Police Interview”). The Parents then learned from Constable Jody Pavesic that during the Police Interview, Child M denied that anything improper occurred and further denied that he touched the genitals of the three-year-old or that any clothing was removed.

[14]        In the meantime, as a result of MCFD's receipt of the report of the January Allegations, an MCFD incident report (“Incident Report Number 1”) was created, all of which then gave rise to the involvement of the Social Worker in her capacity as a protection social worker.

[15]        As I understand it, at the request of Constable Pavesic, the Director deferred their direct investigations of the January Allegations, and also deferred making contact with the Parents, in order to permit the Police investigation of the January Allegations to conclude.

[16]        As I further understand it, the usual procedure is actually for MCFD to contact parents after receiving these kinds of reports and after reporting such matters to the police. However, despite the lack of contact, MCFD did make further background inquiries at the request of the Police.

[17]        The Social Worker first contacted the Parents on or about February 7, 2019, about the January Allegations and indicated to them that she wanted to interview all three of the Children.

[18]        The Parents were initially opposed to that interview occurring, but thereafter, in or around March 5, 2019, they did consent to an interview with Child M, which was scheduled and conducted March 12, 2019, at the MCFD offices (the “March MCFD Interview”). The Parents continued to oppose the interview of Child K and Child A.

[19]        Prior to the March MCFD Interview, the Parents learned from the Police that no criminal charges were being pursued against Child M arising out of the January Allegations, and also learned that the Police file was being closed.

[20]        The MCFD Interview of Child M was conducted by the Social Worker without either Parent being present in the room. Another MCFD senior child protection social worker, Fionna Poole, was present and participated by taking the lead in the interview. Child M denied the January Allegations and maintained that nothing inappropriate had happened at the Christmas family event that had given rise to the January Allegations. That interview took about 30 minutes.

[21]        In cross‑examination, the Social Worker confirmed that there was no other evidence in support of the January Allegations, other than Incident Report Number 1 which was apparently based upon a disclosure made by the three‑year‑old child, being the alleged victim.

[22]        A brief reference was made in the Social Worker's evidence and in the Social Worker's MCFD file entry to the effect that during the March MCFD Interview, there was a change in the demeanour of Child M when he was being asked about the specifics of what had occurred when he and the three‑year‑old female cousin were alone in the bedroom; it was described as being a “prolonged pause and averted eye contact” before providing an answer denying the January Allegation.

[23]        Upon conclusion of the March MCFD Interview and on the same day, the Social Worker briefed the Parents on the interview with Child M. The Social Worker then met with and discussed the matter with her team leader and the other senior child protection social worker as to further required action.

[24]        On the next day, March 13, 2019, the Parents were told by the Social Worker that the Director would not be interviewing the other two Children and that the MCFD would not be taking any further action.

[25]        There was a suggestion in the Social Worker's file entry that there was a “slight discrepancy in the two interview information” provided by Child M, that being the Police Interview and the March MCFD Interview. However, it was not until March 21, 2019, that the Social Worker called Constable Bevington (who had replaced Constable Pavesic) and discussed the two interviews. However, according to the Social Worker's file note, it was characterized by Constable Bevington as “nothing overtly different” and apparently not sufficient to reopen the Police File.

[26]        In cross-examination, the Social Worker expressed the view that Incident Report Number 1 had been adequately dealt with by MCFD. Therefore, the determination made was that no further action was required by MCFD.

[27]        On March 22, 2019, a further report was received by MCFD about an allegation of inappropriate sexual touching by Child M against a seven-year-old female child at a family wedding rehearsal event, held on March 8, 2019 (the “March Allegations”). This gave rise to another MCFD incident report (the “Incident Report Number 2”). The Social Worker was re-assigned to deal with these new allegations.

[28]        As I understand it, the informant on the March Allegations was the same informant as on Incident Report Number 1 and the January Allegations.

[29]        This informant reported about information received from the parents of the seven‑year-old child. The March Allegations were that Child M was sexually touching younger children over clothing, in their genital areas, while in the course of playing a game of tag in the basement of a school gymnasium, where a family wedding event was taking place. The report included an allegation that Child K was one of the younger children who had been inappropriately touched by Child M.

[30]        The Social Worker reported the March Allegations to Constable Tara Bevington on March 29, 2019. As noted above, Constable Bevington had replaced Constable Pavesic on the Police unit that dealt with these type of allegations. As I understand it, Police inquiries were made of the parents of the seven-year-old child but they did not want that seven‑year‑old female child to be interviewed. Accordingly, Constable Bevington requested that the Social Worker “take the lead” on the matter.

[31]        The Parents had already learned about these March Allegations on March 17, 2019, from a senior member of the family who apparently had been informed of the March Allegations by another family member. That same day, the Parents spoke with Child M. He recalled playing tag with other children, both older and younger than him, at the family wedding event, but he did not recall any type of inappropriate touching taking place.

[32]        The Parents subsequently spoke with Child K, who denied either personally being inappropriately touched or witnessing any other person being inappropriately touched during the game of tag.

[33]        In the Mother's Affidavit and in her viva voce evidence, she indicated that in addition to a large number of children playing tag, there were also adults nearby and no one else reported seeing that anything inappropriate happened.

[34]        In the Social Worker's cross‑examination, she confirmed that the reported complaint giving rise to the March Allegations stated that Child M was targeting young girls' vaginas during the game of tag. The Social Worker testified, according to the reported complaint, that there were many children younger than Child M present in the school gymnasium at which the family event was taking place, and that numerous parents and adults were present at the family event. However, the reported complaint indicated that no parents or adults were in the gymnasium and therefore Child M was left unsupervised with younger children.

[35]        On March 27, 2019, the Social Worker contacted the Mother to discuss the March Allegations. The Social Worker indicated that as a result of the March Allegations, and in particular the alleged touching of Child K, that the Director would need to interview all three of the Children in her family.

[36]        The Mother did not specifically state that the Parents were opposed to the three Children being interviewed, but she informed the Social Worker that she would be contacting her lawyer and either she or her lawyer would be back in contact with the Social Worker.

[37]        On March 28, 2019, a letter was sent to the Parents from MCFD about the January Allegations and Incident Report Number 1 (the “March 28 MCFD Letter”). It also outlined available resources by way of counselling that the Parents could access for Child M, and about which they had previously inquired. It went on to indicate that based on the March Allegations that: “Work will continue with the family with MCFD and Saanich Police regarding this new report.”

[38]        On April 2, 2019, the Social Worker was informed by Constable Bevington that the Police would not be pursuing their investigations of the March Allegations any further and that their Police File would be concluded by being closed. Constable Bevington expressed the view that the Mother of Child M was taking the allegations seriously, which I take to mean, in part, that the Mother had obtained counselling for Child M.

[39]        In cross‑examination, the Social Worker confirmed that she learned that it was Constable Bevington's opinion, based upon the available evidence, that the March Allegations did not give rise to a criminal offence. The available evidence for the most part was the “third‑hand” evidence of the individual reporting the March Allegations. Constable Bevington had apparently spoken to the parent of the seven‑year‑old, but learned that the parent did not want the seven‑year‑old female child to be interviewed.

[40]        The Social Worker testified that she was not concerned about the reliability of the “third‑hand” information that formed the basis of the March Allegations. She too followed up with the mother of the seven-year-old child, who apparently resides in another province, along with that child. That parent also confirmed to the Social Worker that the parent did not want her child to be interviewed by MCFD. The Social Worker testified that she “respected that wish”, but did note that an MCFD interview of the seven‑year‑old child was, in any event, complicated by the fact that this child lived in another province.

[41]        The information provided by Constable Bevington to the Social Worker, that the Police File was being closed, was also conveyed by Constable Bevington to the Mother on the same date of April 2, 2019. However, on that same date, the Social Worker left a voice message for the Mother seeking to set up dates to conduct interviews of all three of the Children.

[42]        On April 5, 2019, Parents' legal counsel wrote to and faxed a letter to MCFD referencing a telephone discussion between the Social Worker and legal counsel which had occurred on April 3, 2019 (the “Lawyer's Letter”).

[43]        The Lawyer's Letter set out the Parents' position which may be summarized as follows:

[44]        On April 8, 2019 the Social Worker made a request by way of a voice message to the Parents in which she sought the names of two or three collaterals, being persons familiar with the Family and with which the Social Worker could speak to for the purposes of gathering information. That information regarding collaterals was not provided to MCFD by the Parents.

[45]        On the basis of the Parents' position as set out in the Lawyer's Letter, the Director made its application for a section 17 access order by way of the Application to Obtain an Order filed on May 7, 2019. The matter was set for hearing on September 24, 2019.

[46]        On June 24, 2019, a further letter was sent to the Parents from MCFD about the March Allegations and Incident Report Number 2 (the “June 24 MCFD Letter”). It put the Parents on notice about the Director's expectations as follows:

[47]        The June 24 MCFD Letter then referenced the learning resource available to the Parents about “stop signs”.

[48]        The Social Worker testified that there had been no further contact or communication, directly or indirectly, between the Director and the Parents since the June 24 MCFD Letter.

[49]        As I understand the evidence of the Social Worker, at this point and in connection with Incident Report Number 2, the Director is once again proceeding with what was described in her evidence as a “Family Development Response (FDR)”.

[50]        This process is described in Exhibit 2 and is part of the MCFD Child Welfare Policy namely: The Child Protection Response Policies - Chapter 3, Last Revised March 2018. I will refer to this above‑described portion of the MCFD Welfare Policy as “the Child Protection Response Policy”.

[51]        As I understand her evidence, the FDR process is preliminary to the MCFD proceeding with a “Child Protection Response”. The FDR process is a “collaborative and transparent process” involving contact with parents “before making contact with a child/youth or any other collaterals”. The parental contact exceptions occur when it is necessary to contact the police about safety concerns for family members or for child protections workers attending at the home, to ensure child safety or well‑being concerns pursuant to s. 79(a) or (a.1) of the CFCSA, or to contact other individuals to identify or locate a child/youth or his/her family members when that is supported by those same two sections.

[52]        As I understand it, during the FDR process the Director is seeking to collect information and to assess that information from a child protection perspective. I further understand from Exhibit 2 that the FDR process is a “primary pathway” and is used where “the circumstances do not involve severe physical abuse or severe neglect; and the parents(s) are able and willing to participate in collaborative assessment and planning” (see: page 7 of the Child Protection Response Policy entitled “Policy Statement”).

[53]        The Social Worker confirmed that this matter is still at the FDR stage. It has not yet reached the stage of a “Child Protection Response”, which is described in Exhibit 2 as the pathway to responding to the circumstances of child protection reports which meet the criteria of “severe physical abuse or severe neglect; the parent(s) are unable or unwilling to participate in the collaborative assessment and planning; or there is an open case on the family and at least one child/youth is out of the home due to protection reasons” (see: page 22 of the Child Protection Response Policy entitled “Policy Statement”).

[54]        The Social Worker confirmed in her testimony that this matter will remain at the FDR stage if a s.17 order is granted. It is also open to the MCFD to take further action if, for example, another concerning child protection report about the Parents' Family or the Children was received.

[55]        The Social Worker did indicate that where parents are being uncooperative, then in consultation with her team leader, the matter then moves from the FDR stage to the Child Protection Response stage, which is the investigation stage.

[56]        According to the Social Worker, the present goal of the Director is to interview the Children.

[57]        The Social Worker testified that it was necessary, in accordance with MCFD policy, to interview the Children in order to provide the Director with an opportunity to complete an assessment of the information obtained with respect to Incident Report Number 2.

[58]        Specifically, according to the evidence of the Social Worker, this interview is necessary to assist in the FDR process and to consider whether there are child protection concerns with respect to Child K, Child M, and possibly Child A.

[59]        According to the Social Worker, the MCFD concerns relating to Child M and the alleged inappropriate sexual behaviour towards the seven-year-old female may be summarized by the question: Where did that behaviour originate from or where is it being learned?

[60]        The Social Worker testified about the procedures utilized by the Director to preserve the privacy rights of children during the FDR process. It is privacy concerns that underlie the practice of conducting the interviews of children while at school, in a private room, and without drawing attention to the fact that the child is going to be subject of an interview.

[61]        In her cross‑examination, the Social Worker conceded that MCFD is the only organization which is presently conducting any investigations with respect to the March Allegations, because the Police have closed their Files relating to both the January Allegations and the March Allegations. The Social Worker noted that the focus of the Police investigation relates to criminal behaviour under the Criminal Code and the Director's focus is on child protection under the CFCSA.

[62]        The Social Worker did indicate that under s. 13 of CFCSA (being circumstances when a child needs protection), there are protection concerns based upon the March Allegations which followed shortly after the January Allegations. She further confirmed that there have been no further reports about the Parents' Children or about the Parents made to the Director.

[63]        In cross‑examination, the Social Worker was asked if she, as the protection social worker, was now proceeding on the belief that the March Allegations giving rise to Incident Report Number 2 were true. The response was somewhat equivocal. The Social Worker stated that her role as a child protection social worker is to assess reports that are received by MCFD as to whether or not they raise child protection concerns. However, she has not yet been able to make an assessment of what has been reported in the March Allegations, in order to determine if those allegations are truthful, or somewhat truthful or not accurate whatsoever.

[64]        She further testified that MCFD initially “goes on” what has been reported to them, but then must make a further assessment to thereby make an informed decision about whether or not there are child protection concerns.

[65]        The Social Worker also spoke in terms of approaching her work of assessing reports “with multiple hypotheses”, and through her assessment she will be able to make a conclusion about the safety and well-being of the Children.

[66]        She summarizes the necessary steps in that assessment process as “notifying the parents, interviewing children, and speaking to collaterals”. By gathering information in this fashion, she then makes a determination of whether or not the report is substantiated. But she says at present time, she has been unable to make such a conclusion in this matter.

[67]        As I understand it from the Social Worker's evidence, the present protection concern is whether or not the Parents are able to protect the Children, and more specifically Child K and Child A, from sexual abuse or exploitation by Child M. That is a Child protection concern under s. 13(1)(c) of the CFCSA.

[68]        The Social Worker further conceded that at the present time, MCFD only has very limited evidence in order to assess whether the Parents are able to protect the Children, indicating that she has been “blocked” by the Parents in completing her assessment.

[69]        Therefore, says the Social Worker, there is a necessity for a protection social worker to speak to the Children to determine the veracity of the March Allegations and because the Parents have blocked the Director's access to the Children.

[70]        In her cross‑examination, the Social Worker further confirmed that she has never requested an interview with either or both of the Parents, nor has she conducted a formal interview with either of the Parents as part of her assessment process. This lack of any formal interview of the Parents is the current status, notwithstanding the prior conversations that the Social Worker had with the Mother on February 7, 2019, about the January Allegations, and the subsequent conversations with the Mother and the briefing conversation following the March MCFD Interview of Child M. The Social Worker has only ever had a brief discussion with the Father.

[71]        The Social Worker further confirmed that the Child Protection Response Policy standards for a FDR and for a Child Protection Response both contemplate: contact with the Parents prior to contacting the child/youth (see: FDR Standard 3.2(1)), and in the case of a Child Protection Response, the conducting of an in‑person interview with the parent(s) and other adults living the family home and to make all reasonable efforts to the inform the parent(s) before seeing and interviewing a child/youth, but subject to the stated exception of where consultation “might jeopardize the child/youth's safety or the integrity of the investigation” (see: Child Protection Response 3.3(1) and 3.3(2)).

[72]        The Social Worker testified in cross‑examination to the effect that generally the representatives of the MCFD want to speak to Parents as part of a collaborative process under the FDR. However, she says in this case there have been issues about “cooperation with the Director” on the part of the Parents, which necessitated the interviewing of the Children in order to obtain necessary information. However, she did concede that neither of the Parents have stated that they were not prepared to meet with the Social Worker.

[73]        Therefore, the Social Worker suggests that the Parents' “lack of cooperation” about making the Children available to be interviewed by MCFD necessitates proceeding with those interviews without a meeting with the Parents, in accordance with the usual procedures under the Child Protection Response Policy.

[74]        The Social Worker stated in her cross‑examination that things coming out of the interview with the Children could thereafter be discussed with the Parents, including issues of safety planning for the Children. When asked if there could be a preliminary meeting with the Parents before an interview with the Children and then a subsequent meeting with the Parents following any interviews with any of the Children, she did not answer that question in a direct manner. Instead, she then went back to Incident Report Number 1 and spoke about the Mother's initial reluctance to have the Children interviewed, and then subsequently permitting Child M to be interviewed. In her cross‑examination, she did concede that there is no MCFD policy that says it is necessary to interview a child first, before a meeting with the Parents.

[75]        The Social Worker confirmed that although the Child Protection Response Policy permits the presence of a support worker during the course an interview of a child (which may be a parent, a lawyer, or another person being present), that such a request in this case was denied. Her explanation was that to obtain this accommodation, she would need the authorization of her Team Leader. The Social Worker testified that the important concern in granting that permission is to “preserve the integrity of the interview process”, given the nature of what may be discussed or may need to be discussed in the course of the interview.

[76]        In the experience of the Social Worker, the only time that such permission has been granted is where a child has a special needs diagnosis, in which case their own educational assistant is permitted to attend as a support person. The Social Worker testified that the Child Protection Response Policy contemplates an applicable standard for both the FDR, as well as the Child Protection Response, of a “private face-to-face conversation with each child/youth unless a supervisor grants an exception” (see: Policy 3.2(2) and Policy 3.3(3)).

[77]        In this situation, the Social Worker states that the concern is about the Parents of the Children and their ability to protect the Children. Therefore, she is of the view that having the Parents present would influence what is being shared by the Children with the Social Worker in her capacity as a child protection social worker. She further stated that at the time of the March Interview with Child M, as it related to the January Allegations, that the Mother asked Child M if he wished to have somebody present for the interview with him and he declined that opportunity.

[78]        The Social Worker summarized her evidence by saying that the Director now wishes to speak to the Children without first meeting with the Parents (which of course is not consistent with the Child Protection Response Policy), because of the lack of their cooperation. In addition, the Social Worker says that she has a sufficient level of concern, based upon the Initial Report Number 2, to meet the required test to obtain an order under s. 17 of the CFCSA, notwithstanding that she has not yet completed her assessment under the FDR. Thus, she says that at this stage, based upon the reported information, that there is a likelihood that a child protection incident has happened or there is a likelihood that it will occur.

[79]        In further cross‑examination, the Social Worker again agreed that she has not yet completed her own assessment nor reached her conclusions about Incident Report Number 2. She further agreed that the FDR is dealing with the March Allegations that gave rise to Initiating Report Number 2, that being inappropriate touching of a seven-year-old female child and Child K during a game of tag.

[80]        She further confirmed in her cross‑examination that there have been no specific reports about risks to Child A. However, she testified that the Director is investigating the risk to Child A because he is a younger sibling residing in the same home with his siblings and where there is an allegation that Child M inappropriately touched Child K. Based on both Incident Report Number 1 and Incident Report Number 2, the Social Worker says that the hypothesis that is presently being followed by MCFD is that there are protection concerns under s. 13(1)(c) about the Parents' lack of ability to protect all of the Children. I further understand that pursuit of this particular hypothesis is fully supported by the Social Worker's team leader, if not actually being directed by the team leader.

[81]        The Social Worker contended in her evidence, based on her conversations with the Mother in April 2019, that she was aware of the steps which were being taken by the Parents to make changes within the household to address any of the concerns raised by Initial Report Number 1 and the January Allegations. Since that time, there have be no further reports of any concerns regarding any risk or safety or child protection concerns about the Parents' home or the Family.

[82]        The Social Worker testified that the safety expectations of the Director for the Parents were set out in the June 24 MCFD Letter which was sent to the Parents. From the fact that the Director's expectations have been formally made known to the Parents and that there have been no further reports received by MCFD, I take it that it is open to me to reasonably infer that the Parents have been adhering to some level of compliance with those expectations.

[83]        The Mother's Affidavit indicates in paragraph 18, in part, about Child M as follows:

[84]        The Mother deposes in the Mother's Affidavit, and which was further confirmed in her viva voce evidence, that the primary concern of the Parents is that “all three of our boys are safe”.

[85]        In the Mother's viva voce evidence and in the Mother's Affidavit, she noted the steps that have been implemented by the Parents in their household immediately following the Initial Report Number 1 and the January Allegations.

[86]        These include: consistently ensuring that bedroom doors are left open when the Children are in a room; always having a Parent present in the home; not permitting Child M to babysit his younger siblings; withdrawing Child M from volunteering at summer camp; monitoring Child M's social media and internet usage; and providing him with resources that address physical maturity and sexuality.

[87]        In the Mother's evidence, she was very clear that she has concerns about the negative impact that the January Allegations and the March Allegations could have, both on Child M as well as the entire Family. She notes that at present time both the January Allegations and the March Allegations are mere allegations and, in the view of the Mother, there is no basis for these allegations. The January Allegations have been consistently denied by Child M, both to the Police and to MCFD. The March Allegations have been canvassed by the Parents with Child M and again he has denied those allegations to the Parents.

[88]        The concern for Child M is that if these unfounded allegations become public, there is a significant potential risk that Child M could be bullied and harassed, and that the entire Family may become ostracized within the community.

[89]        The Mother stated in her viva voce evidence that Child K and Child A do not understand the difference between facts and allegations, and that they do not understand the concept of confidentiality. Specifically, they do not understand that the information that they may obtain in any MCFD interview of each of them, about the January Allegations and the March Allegations, is not to be shared with others, such as their friends or while at their school. Thus, they do not understand about the consequences of these allegations becoming more broadly known within their Family's community and at their school.

[90]        The Mother denies that the Parents have “coached” the Children in any fashion to say certain things, other than to say to Child M to tell the truth during the two interviews that he has already undergone in connection with the January Allegations.

[91]        She also stated that following the Lawyer's Letter, the Children were told that they were not speak to anybody or to provide information if they were approached to do so. This was expressed to the Children as a follow-up to the position stated in the Lawyer's Letter that the Children were not to be interviewed at any time by MCFD while in the community or attending at school.

[92]        The Mother recounted her experience at the family event that gave rise to the March Allegations. She recalls that Child M was with her for a good portion of the evening. There were some 50 or 60 adults in attendance at this event on March 8, 2019. She discovered Child M was not beside her; she went to the lower portion of the gymnasium where there were a number of children, both older and younger, playing tag.

[93]        As I understand it, those children included Child M as well as Child K. She then had Child M return with her to the upstairs portion of the gymnasium. She stated that parents were frequently going from the reception to the lower portion where the game of tag was taking place, in order to check their children.

[94]        She indicated that she was only informed of the March Allegations following a further family event out of province. This information came from Child M's grandfather on March 17, 2019, who had received the information from the parents of the seven-year-old female child. Nobody at the out‑of‑province reception had made mention of these March Allegations to her. In the Mother's Affidavit, she deposed that the Parents spoke with Child M about the allegations just before they had returned to Victoria on March 17, 2019. In her Affidavit she deposes as follows:

[95]        The Mother further deposed in her Affidavit, and also confirmed in her viva voce evidence, that she spoke to Child K about the allegations of inappropriate tagging upon their return to Victoria. In her affidavit, she deposes as follows:

[96]        Based upon the information obtained from both Child M and Child K, the Mother and the Father are of the view that nothing untoward happened to give rise to the March Allegations. In the Mother's Affidavit, she deposes that the Parents talk to the Children about the this type of behaviour and they have never complained about “inappropriate touching by anyone”.

[97]        The Parents have never spoken to Child K about the March Allegations.

[98]        In the Mother's Affidavit in support of the position of the Parents, she deposes that:

[99]        In the final paragraph of the Mother's Affidavit, she frames a further concern about the MCFD handling of the entire matter:

[100]     The Mother further testified that the Parents have not received anything in the nature of resources that they had anticipated receiving from MCFD, other than the suggestion, contained in the June 24 MCFD Letter, to learn about teaching the Children “personal boundaries and what to do if someone tries to cross their boundaries”. The resource suggested was the Victoria Child Abuse Prevention and Counselling Centre.

[101]     The Mother testified that she did not feel comfortable with that suggestion because she was never informed that she was the subject of any concerns by MCFD, and specifically because she has never abused her Children. Accordingly, the Parents have sought private resources for Child M and themselves, and have engaged in a general educational program with their Children, within their family, about these issues.

[102]     Sections 2 and 4 of the CFCSA set out basic guiding principles underlying the Act:

[103]     Section 13(1) intersects when determining whether there are reasonable grounds to believe a child “needs protection” under s. 17(1)(a) of the CFCSA.

[104]     Section 13(1) sets out a number of circumstances in which a child would be deemed to be in need of protection:

[105]     Section 17 grants the Director access to a child for the purposes of determining if that child is in need of protection where the Director has previously been denied access to the child. It further provides:

[106]     The decision of Mr. Justice Neill Brown in British Columbia (Director of Child, Family & Community Service) v. O., 2009 BCSC 1370, [2009] B.C.J. No. 1975, 2009 CarswellBC 2661 (the “O. Decision”), provides the structural analysis and applicable evidentiary standard required by s. 17 of the CFCSA. I have followed that decision for those purposes in this case.

[107]     The O. Decision says that it has been established by the case authorities that the language of s. 17(1) is conjunctive.

[108]     Therefore, in order to obtain an order under that section, the Director must establish to the satisfaction of the court the three requirements s. 17(1)(a) to (c) inclusive, as follows:

[109]     The O. Decision says that to determine whether there are reasonable grounds to believe that a child “needs protection”, it is necessary to examine s. 13(1) of the CFCSA which sets out the circumstances in which a child would be deemed to be in need of protection.

[110]     Where the risk of harm to the child is a future risk of harm, s. 13 requires that the circumstances must be “likely” to occur.

[111]     The O. Decision follows the Court of Appeal decision in B.S. v. British Columbia (Director of Child, Family and Community Services) (1998), 1998 CanLII 5958 (BC CA), 160 D.L.R. (4th) 264; [1998] 8 W.W.R. 1 (B.C.C.A) (hereinafter the “B.S. Decision”), and holds that when assessing evidence for the risks of future harm under s. 13(1), “likely” to be harmed must be assessed on the “real possibility tests”. This is a higher test than “mere possibility”.

[112]     Therefore, where MCFD is concerned about a potential risk of harm to the child, it must demonstrate that it is a real possibility (see: the O. Decision at paragraphs 26 to 28).

[113]     The O. Decision concludes that the court should not require the Director to demonstrate parental culpability in order to find a child in need of protection under s. 13(1) for the purposes of a s. 17 application.

[114]     Reliance is placed upon the B.S. Decision that identified, even though the Director had not demonstrated to the requisite standard a circumstance described in one of the subparagraphs of s. 13(1), the “guiding principles” set out in s. 2 of the CFCSA are paramount when deciding if a child is in need of protection.

[115]     Therefore, as stated in the O. Decision at paragraph 34, regarding s. 13(1) of the CFCSA:

[116]     The O. Decision accepted the argument that a judge hearing a s. 17 application must weigh all factors when assessing whether a child is in need of protection. An important consideration can be the maintenance of the integrity of a loving and supportive family where evidence warrants it.

[117]     That conclusion was premised on s. 2(b) of the CFCSA which identifies the family as the “preferred environment for the care and upbringing of children”, and further indicates that “responsibility for the protection of children rests primarily with the parents”.

[118]     Reliance was also placed upon the principles enunciated in s. 4(1) which directs that “all relevant factors must be considered in determining the child's best interests”, including the “quality of the relationship the child has with that parent or other person and the effect of maintaining that relationship” (s. 4(1)(d)) (see: O. Decision at paragraphs 37 to 39).

[119]     The O. Decision addressed this question in the context of the argument that a hearing judge in a s. 17 application should factor in potential harms relating to the interview process.

[120]     At paragraph 43 of the O. Decision, and based upon a review of the comments made in dissent of McLachlin C.J.C. in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 , Justice Brown accepts the proposition that a judge must take a balanced approach to s. 13 and should consider the harms that may flow from an unwarranted state intrusion.

[121]     While acknowledging that ordering a parent to make their child available for an interview by the state‑appointed social worker may be a “comparatively modest state intrusion”, Justice Brown states at paragraph 43 as follows:

[122]     The conclusion reached in the O. Decision is that it is open to a judge to take into account the “evidence of a well-functioning family with loving parents who are capable, concerned and able to take steps to deal with their children's needs”.

[123]     While acknowledging these factors are not solely determinative, Justice Brown further states that it is also open to the judge to take into account these factors “in conjunction with the potential harm that could result from state intrusion into an already traumatized family – as long as the paramount consideration remained the protection of children”.

[124]     Therefore, it is open to the s. 17 hearing judge to “consider and weigh such factors when considering whether the Director has sufficiently proven reasonable grounds for believing that a child is in need of protection to warrant granting the application”. Justice Brown stated that it is unsupportable to accept the suggestion that a judge on a s. 17 hearing should consider harm to “the child exclusively in terms of the nature of the allegation”. Thus, a s. 17 hearing requires a more comprehensive assessment from the court than that limited assessment (see: O. Decision at paragraphs 44-46).

[125]     In the O. Decision, it was argued that the Director's burden of proof when assessing the risk of future harm to obtain a s. 17 order should be lowered where the nature of that harm is particularly serious.

[126]     Relying on paragraph 30 of the B.S. Decision, Justice Brown agreed that the burden showing likelihood is inversely proportional to the seriousness of the harm. He further noted that in the O. Decision, it involved allegations of sexual abuse of a very young child which was a “very serious matter”. Justice Brown therefore concluded that the “likelihood of it occurring should be relatively lower in order to justify a finding that a child needs protection” (see: O. Decision at paragraphs 47 to 48).

[127]     In the O. Decision, Justice Brown started his analysis of this question on the foundation that s. 17(1)(a) effectively qualifies the test under s. 13 with the phrase “reasonable grounds to believe”.

[128]     Therefore, under s. 17, the Director must show that there are “reasonable grounds to believe” that there is a real possibility that a Child may be harmed (see: O. Decision at paragraph 53).

[129]     The O. Decision then examined what amounts to “reasonable grounds to believe” and adopted the test of “credibly-based probability” as set out in Chapman v. Hamilton, 2005 ONCJ 158 at paragraphs 28 and 29, which concluded that “mere suspicion, conjecture, hypothesis or 'fishing expeditions'“ fall short of the minimally accepted standard (see: O. Decision at paragraphs 60-61).

[130]     It also requires more than “intuition or a hunch” (see: O. Decision at paragraph 62). It also requires “something more than a subjective belief” in order to “meet the evidentiary standard of 'reasonable grounds to believe'.” A subjective belief on its own is insufficient to meet that evidentiary standard, and the belief must be based on “reasonable grounds, measured on an objective basis” (see: the O. Decision at paragraphs 63 and 64).

[131]     In answer to the question what constitute “reasonable grounds to believe”, as per s. 17(1)(a), Justice Brown concludes as follows:

[132]     Through counsel, the Director submits that they have established the necessary grounds to obtain an order under s. 17 of the CFCSA to have access to the three Children.

[133]     They further submit and remind the court that they are not asking this court at this time to make a finding under s. 13 of the CFCSA that the Children are in need of protection.

[134]     The Director argues that based on the two “independent” and “unsolicited” reports received by the Director within a period of less than three months, both of which allege Child M's sexually‑inappropriate behaviour with “multiple children” who are younger in age than Child M, requires that the Director must make an assessment of those reports in order to determine if the reports can be substantiated.

[135]     If those reports are substantiated, then there exists s. 13 child protection concerns.

[136]     As I understand the Director's submission, at this particular stage, being the application for the order under s. 17, the Social Worker has a subjective belief, based on objectively reasonable grounds, that there may be a risk that would put the Children in need of protection. To put it another way, the Director is saying that there is some evidence to reasonably believe that the Children are in need of protection.

[137]     In order to complete the necessary assessment, the Director argues that it is necessary for the Children to be interviewed by the Director in accordance with the s. 17 order.

[138]     I further understand that the Director requires the interview to determine whether Child A and Child K are in need of protection arising from the alleged improper sexual behaviour of their sibling, Child M. Child M needs to be interviewed because of the Director's concerns about the “root cause” of his behaviour.

[139]     The Director suggests that it has attempted to use “less intrusive means” in order to complete its required analysis, but the Parents are not being cooperative, which then requires that the Director complete a “full assessment”, thus necessitating that they interviewing all three Children.

[140]     The Parents submit that at this particular stage, the Director has placed the “cart way in front of the horse” by way of their application under s. 17 of the CFCSA. The Parents' counsel urges this Court to refuse the s. 17 application.

[141]     Many of the same arguments outlined in the Lawyer's Letter form the basis of the Parents' submissions.

[142]     The Parents suggest that the Social Worker's own evidence indicates that she has not formulated an opinion that the Children are at risk. The Social Worker is still gathering information to substantiate Incident Report Number 1 and Incident Report Number 2.

[143]     There is no evidence that the Children are at risk, and neither the Incident Report Number 1 nor the Incident Report Number 2 provide a sufficient foundation to obtain the s. 17 order.

[144]     The Parents suggest that the Director is conflating the two separate Incident Reports and are not maintaining any sense of perspective about the nature of each of those two reports. On one hand, the January Allegations forming the basis of the Incident Report Number 1 are very serious. However, these January Allegations have been investigated by the Police, which, after making inquiries and interviewing Child M, the Police have not taken any action and have closed their File. In fact, MCFD followed suit and closed its own file arising from Incident Report Number 1.

[145]     On the other hand, the March Allegations which gave rise to the Incident Report Number 2 are alleged to have occurred during a game of tag in an open space with multiple children in attendance, and with their parents walking in and out of the alleged scene of the allegations.

[146]     The March Allegations were further investigated by the Police through inquiries with the parents of the seven‑year-old female alleged victim and no further action was taken, apparently based in part upon a conclusion that the new information, standing alone, did not constitute a criminal offence.

[147]     The Parents' counsel further submits that there is an absence of any evidence that the Parents themselves are a risk to the Children and such a suggestion is “baseless” and without any “substantiation”. Rather there is un-contradicted evidence about the positive steps the Parents have taken in order to protect their Children.

[148]     It is further submitted that the Director has not been following its own policies and has not been seeking an interview with the Parents, or at the very least talking to them. The Parents have not refused to engage in such an interview.

[149]     Parents' counsel further argues that Child M does not fall within the meaning in s. 13 of being a “child in need of protection”, but rather Child M is potentially at risk of being charged as a perpetrator of Criminal Code offences.

[150]     The Parents further submit that there is actually no evidence that Child A requires protection.

[151]     The Parents further submit that this court needs to balance the benefits of ordering an interview with the potential harm of such an interview, and be mindful of procedural safeguards which should be afforded to families in cases of where the government or its agencies seek to intrude.

[152]     What is very important in this case from a factual perspective            is the status, the extent, and the scope of the Director's investigation.

[153]     I note and find the following facts on the whole of the evidence before me:

[154]     Thus, the extent of the Director's investigations and inquiries have been almost solely reliant upon the Police investigations, discussions with the individual who made the January and March Allegations, some discussions with the respective parents of the three‑year‑old and the seven‑year‑old alleged victims, and a half‑hour interview with Child M.

[155]     It is not the function of this Court to provide instructions or advice to MCFD on how to conduct a child protection investigation. They are trained professionals. They have comprehensive policies to guide them.

[156]     However, given the fact that almost a year has passed since the January Allegations were received by MCFD, in my view, very little has apparently been done or accomplished in this matter by way of any investigations or inquiries by the Director.

[157]     Given the whole of the evidence before this Court that so very little has been done, this is surprising, especially given the apparent high level of credence and reliance that the Director has placed upon the serious January Allegations and the less serious, but still concerning, March Allegations. I state this with respect to the Director's apparent high degree of reliance upon those Allegations, notwithstanding the Social Worker's suggestions to the contrary when she submits that the Director initially “goes on” what has been reported and then continues to make further assessments of those reports. The scope of the Director's investigations and inquiries and its furtherance of them in this matter has been, at best, very limited.

[158]     The Director's investigations and inquiries have stalled themselves on the January Allegations and the March Allegations, notwithstanding that the Director apparently adequately dealt with the January Allegations and the Incident Report Number 1, and decided to take no action on them and to close its file.

[159]     I fully acknowledge and appreciate that protection social workers have a very difficult job and heavy caseloads. The CFCSA places considerable statutory requirements upon them, which the courts are expected and required to enforce.

[160]     The CFCSA also provides the Director with statutory powers and tools in order to fulfil its mandate. Some of these tools are blunter than others and some may be more impactful than others.

[161]     An order under s. 17 is not an insignificant tool that the Director may seek to obtain from the Court. It seems to me that it is not the only tool available to the Director, nor should it be relied upon as the only significant means of gathering information and evidence upon which the Director is relying in fulfilling its mandate.

[162]     In my view, courts must not grant a s. 17 order to enable “fishing expeditions” as referenced in Chapman v. Hamilton, supra. That approach can be far too intrusive.

[163]     As noted above, in the O. Decision, Mr. Justice Brown rejected the suggestion that a judge in a s. 17 hearing should consider harm to the child exclusively in terms of the nature of the allegation.

[164]     He then goes on to say as follows:

[165]     He then opines that a s. 17 application requires a more comprehensive assessment from the court (see: the O. Decision at paragraph 46).

[166]     The January Allegation is a very serious allegation, and the March Allegation is also serious, but this court must follow the direction in the O. Decision and undertake a comprehensive assessment before granting the order sought by the Director.

[167]     I have also taken the seriousness of these allegations into consideration when assessing the Director's burden of proof about the likelihood of future harm in the present context of seeking to obtain a s. 17 order.

[168]     Based upon the whole of the evidence before me, I have concluded and find as facts that:

[169]     I have also carefully considered, as I must do, the test outlined in the O. Decision of what constitutes “reasonable grounds to believe” as required by s. 17(1)(a) of the CFCSA, and I have viewed the whole of the evidence before this court through that lens.

[170]     In my view, based upon the whole of that evidence, the Director has simply not met the test enunciated in s. 17(1)(a), and has not demonstrated that it has a subjective belief based on objectively reasonable grounds that the Children, or any of them, need protection.

[171]     In my view, it is difficult on the whole of the evidence, and having regard to the limited steps taken to date by the Director, how it could even have a subjective belief that the Children, or any of them, are in need of protection.

[172]     I am of the view that, given the status of its investigation and inquiries, the Director remains at the “mere suspicion, conjecture, hypothesis stage” which falls short of the required test. The Social Worker stated in her evidence that her approach to assessing reports was to use “multiple hypothesis”. She further confirmed that the present hypothesis that is being followed by MCFD is that there are s. 13(1)(c) protection concerns. Thus, it is a very reasonable inference from this evidence for this court to conclude that it is at the hypothesis stage where MCFD currently remains.

[173]     If I am wrong in that conclusion, I find that I am still also not satisfied that access to the Children is necessary to determine if the Children, or any of them, need protection. That, of course, is the requirement of s. 17(1)(c). In my view, given all the circumstances in this case, there is a significant risk of harm to subject these Children to a Director's interview for the reasons proffered by the Parents.

[174]     Based on all of the foregoing, the Director's application for an order under s. 17 of the CFCSA is dismissed.

[175]     This concludes my reasons on this application.