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British Columbia (Child, Family and Community Service) v. H.D.C., 2020 BCPC 214 (CanLII)

Date:
2020-10-16
File number:
F-12477
Citation:
British Columbia (Child, Family and Community Service) v. H.D.C., 2020 BCPC 214 (CanLII), <https://canlii.ca/t/jbkqw>, retrieved on 2024-03-28

Citation:

British Columbia (Child, Family and Community Service) v. H.D.C.

 

2020 BCPC 214

Date:

20201016

File No:

F-12477

Registry:

Duncan

 

 

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:

 

M.O., born [omitted for publication]

 

 

BETWEEN:

 

DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE

APPLICANT

 

AND:

H.D.C., R.O., and R.H.

PARENTS

 

 

ORAL REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE J.P. MacCARTHY

 

 

 

Counsel for the Director:

L. Hawes, by teleconference

Counsel for the Parent H.D.C.:

M. Gorman, by teleconference

Counsel for the Parent R.O.:

D. Parsons, by teleconference

Place of Hearing:

Colwood, B.C.

Dates of Hearing:

August 26 and 27, 2020; September 2 and 9, 2020

Date of Judgment:

October 16, 2020


A Corrigendum was released by the Court on November 12, 2020. The corrections have been made to the text and the Corrigendum is appended to this document.

Introduction

[1]         THE COURT: The Director seeks an interim custody order under s. 35(2)(d) of the Child, Family and Community Service Act (hereinafter referred to as the "Act") with respect to the child, M.O. (date of birth [omitted for publication]), and hereinafter referred to as the "Child". This matter comes before this court at the presentation hearing stage.

[2]         The biological parents of the Child are H.D.H., now known as H.D.C. (hereinafter referred to as the “Mother”) and R.O. (hereinafter referred to as the “Father”). The Mother and the Father are collectively referred to as the “Parents”.

[3]         The Child was in the care and custody of the Mother when proceedings under the Act were initially commenced by the Director on November 9, 2018, in connection with the Child and the Mother’s other children, over domestic violence concerns, exposure of the Mother’s children to domestic violence, and the likelihood of being exposed to problematic substance misuse; all of these concerns arising from the Father reconnecting with the Mother and her children following his release from a provincial correctional facility in the fall of 2018.

[4]         The Parents oppose the order being sought by the Director. They seek the return of the Child to their care. At the time of the presentation hearing, the Parents were residing together.

[5]         An extensive amount of evidence has been presented at this contested presentation hearing which took place over the course of four days. Dale Walters, a Protection Social Worker and Team Leader with the Ministry of Children and Family Development (“MCFD”), provided the Director’s evidence by way of his affidavit filed July 27, 2020 (the “Walters’ Affidavit”) and by way of his viva voce evidence in chief and upon cross-examination by Parents’ counsel.

[6]         Both the Mother and the Father provided viva voce evidence and were also subject to cross-examination.

Nature of a Presentation Hearing

[7]         I must instruct myself that s. 33.3 of the Act provides that:

A presentation hearing is a summary hearing and must be concluded as soon as possible.

[8]         I must be very mindful that the procedure for a presentation hearing is different from that of protection hearing (see British Columbia (Director of Child, Family and Community Service) v. M.C., [2017] B.C.J. No. 2259, 2017 BCPC 327, at para. 34). In support of that principle, the Honourable Judge W.F.M. Jackson at para. 34 further notes as follows:

Paragraph 15 of B.S.R. v. The Director, 2016 BCSC 1369 states, "At the presentation stage, the issue is not whether the child needs to have protection and no such finding is required (citing BR v. KK, 2015 BCSC 1658).

[9]         Our Court of Appeal in B.(B.) v. British Columbia (Director of Child, Family and Community Service), 2005 BCCA 46, [2005] B.C.J. No. 124, provides further guidance regarding a presentation hearing (see specifically at pars. 12 to18), which guidance may be summarized in the following manner.

[10]      The issue at a presentation hearing is not whether the child is in need of protection. The presentation hearing is designed to ensure that a child is not arbitrarily taken into care. It is to be begin “no later than seven days after the day a child is removed” (see s. 34(1) of the Act).

[11]      At the presentation hearing, the Director is required to provide a written report that includes the circumstances causing the removal of the child, an interim plan of care for the child, and information about any less disruptive measures the Director considered before removing the child.

[12]      The essential issue that the court must deal with is: what is the best way to care for the child subject of the removal until there can be a full and complete examination at the protection hearing stage?

[13]      The Act prescribes a two-stage procedure for the presentation hearing. The first stage deals with whether the removal was justified under the Act; that is, were there reasonable grounds to believe that the child needed protection, was there immediate danger to the child's health or safety, and were there less disruptive measures available? If the court concludes that the removal was not justified (and hence arbitrary), then the child must be returned to the parents.

[14]      If removal was justified, then at the second stage the court considers the best way to care for the child pending the protection hearing (see R. v. M.S., [1998] B.C.J. No. 2204 (QL) (B.C. Prov. Ct.)). The court must be satisfied that there continues to be objectively reasonable grounds to believe the child is at risk of harm (see British Columbia (Director of Child, Family and Community Services) v. L.(G.M.), 2014 BCPC 284).

[15]      I must further instruct myself that the presentation hearing provides a hearing for both the parents and the Director. Viva voce evidence may be presented and there is a right of cross-examination, although the presentation of the evidence must be brief. Earlier decisions under the Act which had effectively denied a hearing to the parents have not been followed by later Supreme Court decisions.

[16]      The Director need only establish a prima facie case at the presentation hearing stage as to the appropriate interim custody order. Any conflict in the evidence on this issue is resolved in favour of the Director unless the facts that the Director seeks to establish are manifestly wrong, untrue, or unlikely to have occurred (see B.B. v. British Columbia (Director of Child, Family and Community Services), supra).

[17]      The court's function at this stage is not to make findings of credibility. Conflicting facts are left to a full determination at the protection hearing (see British Columbia (Director of Child, Family and Community Services) v. F.(R.); see Re: J.(A), 1997 Civ. L.D. 296 ( B.C. Prov. Court); British Columbia ( Director of Child, Family and Community Services v. Schneider appealed on other grounds; [1996] B.C.J. No. 2387 (QL) (S.C.), leave to appeal refused; 1996 CanLII 2251 (BCCA); and see B.B. v. British Columbia (Director of Child, Family and Community Services)).

[18]      I must further instruct myself that in assessing the evidence and whether it suggests a risk of harm to the child, the test is much lower than a balance of probabilities (see T.(K.M.) v. T.(J.D.), [1999] B.C.J. No. 822 (QL) (B.C. Prov. Ct.)).

[19]      British Columbia (Director of Child, Family and Community Services Act) v. H.(M.), 2008 BCSC 701, held that a judge presiding at a presentation hearing may order interim custody to the Director if satisfied:

One:

At the time of removal, there were objectively reasonable grounds to believe that the child was then in need of protection, and that either the child’s health or safety was in immediate danger, or no other less disruptive measure that was available was adequate to protect the child;

Two:

At the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the two essential] elements required by s. 30(1) continue to exist; and

Three:

In the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is of sufficient magnitude to require that the child be kept in the interim custody of the Director, pending a protection hearing.

[20]      I must further direct myself that the court must be sure to review whether there are no less disruptive measures when considering whether to make an interim custody order (see British Columbia (Director of Child, Family and Community Services) v. S.(L.D.), 2018 BCPC 6 (CanLII), 2018, B.C.P.C. 6). That case stands for the proposition that a court may find that the Director has not been "active and diligent" in attempting to find alternatives to removal.

[21]      In addition, I must further instruct myself that orders that may be made at the presentation hearing's conclusion may be as follows:

1)            an interim custody order in favour of the Director (see s. 35(2)(a)); or

2)            an interim order that the child be returned to or remain with the parent apparently entitled to custody under the supervision of the Director (see s. 35(2)(b)); or

3)            an order that the child be returned to or remain with the parent apparently entitled to custody (see s. 35(2)(c)); or

4)            an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person under the Director's supervision (see s. 35(2)(d)).

In this particular situation before this court, the Director is, as noted above, seeking an order under s. 35(2)(d), sometimes referred to as an "out-of-care order."

General Background Based on the Evidence

The Mother

[22]      The Mother is approximately age 42 and, in addition to the four-year-old Child being the subject of these proceedings, she has four other children ages 11 to 24.

[23]      Three of those children between the ages of 11 and 15 are the product of the union between the Mother and R.H. (collectively the “H. Children”).

[24]      The H. Children were initially subject of proceedings initiated by the Director, but on January 6, 2020, R.H. obtained an order under the Family Law Act (“FLA”) granting him primary residence of the H. Children and sole guardianship on an interim basis. That ended the Director’s involvement with the H. Children.

[25]      The Mother indicated that her divorce from R.H. was a high conflict proceeding. R.H. was paying child support to the Mother prior to the making of the January 6, 2020, FLA order. The child support terminated thereafter.

[26]      The eldest child of the Mother, J.G. (“J.G.”) is 24 years of age and is the product of a relationship when the Mother was a teenager. J.G. has struggled with drug addiction and substance misuse, including illicit heroin. Police records provided to MCFD indicate J.G. has a criminal record from 2014 for mischief and for failure to comply with an undertaking.

[27]      The Mother and J.G. have maintained a relationship such that he was in her family home at the same time as all of the Mother’s other children, but at the time of the presentation hearing, J.G. had his own residence. A number of police reports of incidences involving the Mother and J.G. have resulted in police interaction with the Mother and J.G. These interactions have been reported to MCFD and have resulted in contact between the MCFD and the Mother.

[28]      The Mother testified that she had a happy and positive childhood, but also indicated that, as a teenager, she was “hard to handle” and that she left her own family’s residence. Her own mother has passed away, but she maintains a relationship with her own father.

[29]      The Parents have been in an interrupted relationship for at least some five years starting when the Mother was residing in the Fraser Valley and prior to her moving with her children to the Cowichan Valley.

[30]      The Mother and the Father met in August of 2014 and started dating in January 2015. The Mother became pregnant with the Child in the spring of 2015. The Mother was aware of the Father’s history with drug use and with his criminal record when they started their relationship.

[31]      When they first met, the Father was not using illicit drugs at that time and was in a treatment centre. In or around July to August of 2016, some months after the birth of the Child, the Father relapsed into drug use which eventually led him to return to his criminal lifestyle and which led to further periods of incarceration. Because of that relapse and at the initiative of the Mother, the Parents separated. The Mother stated that she told the Father he would have to work on his drug issues. The Mother testified that that they did not speak for a considerable period of time, something approaching two years.

[32]      During the Parent’s time together in the Fraser Valley, the Parents came to the attention of MCFD and to the local police, as a result of reports of domestic violence.

[33]      Following separation, the Mother moved from the Fraser Valley to the Cowichan Valley in or around 2017 citing reasons in her evidence of “child safety”. She purchased a home in the Cowichan Valley (the “Family Home”) in which she, the Child, and the H. Children all resided.

[34]      It was during this period of time that the Mother and her children came to the further attention of the Duncan office of the MCFD. It was at the Family Home that a number of interactions between MCFD representatives and the Mother occurred. The Family Home also became the site of a number of bylaw complaints and investigations by municipal bylaw enforcement officers. There were also a number of related police attendances at the Family Home.

[35]      While still incarcerated, the Father reached out to the Mother. The Father was released from custody in or around September 2018. The Parents’ relationship started to rekindle, but according to the Mother, she wanted a “slow integration”. The Father moved to Vancouver Island following his release with the plan to enter programming provided by the John Howard Society starting in October of 2018. The rekindling of the Parents’ relationship became a matter of concern for MCFD and resulted in action being taken by the Director.

[36]      The Mother was unable to afford to maintain the Family Home after the making of the FLA order obtained by R.H. at which time she was no longer in receipt of child support from him and she was no longer in receipt of federal child benefits. The Family Home was sold out of foreclosure and the Mother gave up possession in April of 2020.

[37]      Since that time, the Mother has not had stable housing. At the time of the presentation hearing, she and the Father were residing in a fifth wheel RV trailer in the [omitted for publication] of Vancouver Island. They were in the midst of a dispute with their landlord which deprived them of water and electricity. The Mother testified that at present time they do not have any firm prospects as to where the RV unit can be relocated.

The Father

[38]      The Father is 36 years of age. He identifies as Métis. The Métis Commission is aware of these proceedings but has not actively participated.

[39]      The Father has an extensive criminal record. Between 2005 and 2018, it includes convictions for a number of violent offences including assault, assault with a weapon, assault causing bodily harm, forcible confinement, and uttering threats. He has a multiple number of convictions for: break and enter and possession of break-in instruments, theft and attempted theft, attempted fraud, possession of stolen property, a mischief conviction, and a conviction for theft of a motor vehicle, a conviction for driving while disqualified, four obstruction-of-a-police-officer convictions, and convictions for some eight breaches of probation orders, recognizances, or failures to attend court, plus a conviction for driving while disqualified. Apparently, the Father has no convictions for domestic assault.

[40]      At the time of the hearing, the Father was on judicial interim release conditions for the alleged domestic assault of the Mother in or around February of 2020. He apparently also faces breach charges for possession of a knife or a weapon and for a curfew breach under his release conditions.

[41]      The Father has struggled with drug use and addiction from age 15. He testified that he was high on crystal meth when he committed several of the offences for which he has been convicted.

The Child

[42]      At the date of the presentation hearing, the Child was approximately age four years. The evidence of Team Leader Walters indicates that the Child is “doing well”, “meeting milestones”, is “potty trained” and hence, out of diapers, and is missing her Parents.

[43]      As noted below, since the initial removal of the Child, the Child has been living with the Aunt on the BC Mainland. MCFD had approved supervised weekend visits by the Parents with the Child prior to the COVID-19 pandemic shutdown, but none actually occurred. That shutdown lasted from approximately February of 2020 to June of 2020, at which time MCFD policies changed to reinstitute in-person parenting time between children in care and their parents.

[44]      The Parents have had only one visit the Child in or around July 10, 2020, with financial assistance and ferry vouchers being provided by MCFD. However, the Parents have not availed themselves of other opportunities for visitation because of what the Parents say are other pressing personal and financial considerations, inconvenience factors for the Aunt, and the emotional stress caused both to them and the confusion to the Child when the Child cannot return home with them. The Parents testify that they have been in frequent telephone and FaceTime video conferencing with the Child on most days , from the outset of the Child’s removal and placement with the Aunt,

[45]      The Child is scheduled to start preschool this fall, but the COVID-19 pandemic has caused some uncertainty about that plan. There are ongoing discussions involving MCFD, the Parents, and the Aunt about that proposed preschool activity.

[46]      The Parents acknowledge in their evidence that the Child is well cared for, loved, and safe with the Aunt.

History of the CFCSA Proceeding With Respect to the Parents and the Child

[47]      The CFCSA proceedings with respect to the child and the Parents are not in dispute and can be summarized as follows:

a)            On November 9, 2018, the Director initiated proceedings under the CFCSA by filing a presentation form and report to court seeking an interim supervision order without removal.

b)            On January 18, 2019, the Honourable Judge Cutler granted an interim supervision order without removal pursuant to s. 33.3(2) of the Act (the “January 2019 Interim Supervision Order”).

c)            On February 26, 2019, the Director applied for a temporary supervision order. That application was opposed and the matter was subsequently adjourned for hearing.

d)            On October 10, 2019, the Mother and Father signed a Safety Plan which provided that the Child would stay with her maternal grandfather. This Safety Plan was renewed on October 11, 2019 (collectively the “Initial Safety Plan”).

e)            On October 15, 2019, the Mother and the Father agreed to a new safety plan (the “Second Safety Plan”) whereby the Child would reside with the paternal aunt, S.G., (the “Aunt”). The Child was placed with the Aunt on October 16, 2019. Thereafter, the Second Safety Plan was extended on October 30, 2019, and again on November 15, 2019. At all material times, the Aunt resided on the British Columbia Lower Mainland and the Parents were residing on Vancouver Island.

f)            On November 15, 2019, the Mother and the Father entered an Extended Family Program Agreement pursuant to s. 8 of the Act (the “EFP”) pursuant to which the Child was placed in the care of the Aunt and continued to reside on the British Columbia Lower Mainland.

g)            The January 2019 Interim Supervision Order expired on January 18, 2020, because of the operation of s. 44(3.1) of the Act which provides that supervision orders cannot exceed 12 months.

h)            On January 29, 2020, the Mother informed the Director that she was withdrawing her consent to the Extended Family Program Agreement.

i)            On January 29, 2020, the Director removed the Child from the care of the Mother and the Father and placed the child in the care of the Aunt (the “January 2020 Removal”). That removal was made by the Director pursuant to s. 30 of the Act. At no point during the period from January 18, 2020 to January 29, 2020, was the Child actually back in the care of the Parents.

j)            The matter was scheduled for a presentation hearing on February 28, 2020. At that time, the Director and the Mother agreed to proceed to mediation rather than a hearing and the presentation hearing was adjourned accordingly.

MCFD Involvement with the Mother and with the Father

[48]      The Director’s evidence indicates that the Director has been involved with the Mother as a parent since 1996. Between 1996 and 2016, there were 10 protection reports relating to domestic violence between the Mother and the Father, concerns about drug use by the Mother, behavioural issues with her son, J.G., including physical altercations and parent-teen conflict. There were also police reports of domestic violence between the Father and the Mother during the period between 2015 and 2016.

[49]      In August 2016, the RCMP were called to the Mother’s residence in the Fraser Valley in response to reports of the Mother screaming. The police arrested the Father for assaulting the Mother on the basis of the information received by the police from the Mother at that time. In her evidence during the presentation hearing, the Mother contends that she was “forced” by the police to make a statement accusing the Father of choking her and pushing her, all under threat of losing her children.

[50]      However, the Director’s evidence does indicate that the Mother did agree to a plan with MCFD in August 2016 whereby the Father was not to have access to the Child or the H. Children nor to be in their home unless approved by MCFD. Similarly, the Father was so informed of these restrictions and the need to make contact with MCFD for family planning to address child protection concerns.

[51]      In May 2018, the Duncan office of MCFD received reports about the Mother using illicit substances while parenting. The investigation concluded that there were no child protection concerns and the Mother’s urine sample showed negative for illicit substances.

[52]      On October 25, 2018, the Director received two reports regarding the Mother. One report expressed concerns about the Mother using drugs, but after inquiries, that report was coded “non-protection”. However, the other report was to the effect that the Mother had expressed concerns to the informant caller that she had let the Father back into the Family Home, that he previously assaulted her and some of the children and that the Mother considered the Father to be a “violent criminal”, that he “beat the shit out of her” and was a “monster and terrifying”. Furthermore, the Mother was fearful that the Father would show up at the Family Home and “kill them all”, that the Mother was considering suicide and, furthermore, that Child R. (being one of the H. Children) was fearful of returning to the Family Home because of the presence of the Father.

[53]      As a result of that report to MCFD, Protection Social Worker Lasota attended at the Family Home with police presence. The Mother denied that the Father had been in the Family Home following his release from custody, but then had to admit that he had been in the Family Home once the social worker had received disclosure to that effect from the Mother’s children, namely the H. Children.

[54]      At the request of the social worker, the Mother entered a safety plan agreeing that the Father was not to have access to the children until further assessment and agreement with the Father and MCFD.

[55]      In the course of the investigation of this report, the Director learned that the Father had been released from custody in September 2018 after serving time for drug-related charges and assault of a police officer.

[56]      In the Mother’s evidence during the presentation hearing, she minimized the extent of the contact between the Mother and the Father, his contact with the children, and the Father’s presence in the Family Home. She further contended that the individual who made that second report was confused and had misunderstood her and, in fact, she was speaking not about herself but about a friend of hers who was in a violent and dysfunctional relationship.

[57]      The Director initiated proceedings, as previously noted, and sought and obtained the January 2019 Interim Supervision Order.

[58]      The terms of the January 2019 Interim Supervision Order named not only the Mother and the Father, but also R.H. who was a guardian of the H. Children. Those terms are as follows, reading in [as read in]:

This court orders pursuant to s. 33.2(2) of the Act that the Director supervise the Children's care until further order on the following terms and conditions:

1.         H.D.H., R.O., and R.H. must allow the Director or the Director's Agents to visit and inspect their respective homes and meet directly and privately with D.H., C.H., R.H. and M.O. (the "Children") at any time whether scheduled in advance or not for purposes of determining whether R.O. is in the home or to assess a new protection report.

2.         H.D.H., R.O., and R.H. will ensure that the Children are not in the presence of anybody who is under the influence of alcohol or illicit substances.

3.         H.D.H, R.O., and R.H. will ensure that the children are not exposed to persons engaged in criminal activities or environments where illicit substances are present.

4.         R.O. will submit to random drug and alcohol testing as required and requested by the Director.

5.         R.O. will have access to the Children at the discretion of the Director and supervised at the discretion of the Director and in consultation with H.D.H. and R.H.

6.         H.D.H., R.O., and R.H. will not willingly allow the Children to be exposed to any incidents of direct or indirect physical or verbal violence. Should the Children be exposed to any incidents of physical or verbal violence, H.D.H., R.O., and R.H. will immediately contact RCMP and MCFD to report the incident.

7.         R.O. will attend and successfully complete a Family Violence Program as agreed to between R.O. and the Director.

8.         H.D.H. will attend regularly scheduled meetings with the Social Worker.

9.         H.D.H., R.O., and R.H. will work cooperatively with the Director and consent to the release of confidential information as required by the Director.

10.      Should the above-noted terms be breached, the Director may remove the Children and/or consider a Protective Intervention Order pursuant to s. 28 of the Child, Family and Community Service Act.

January 2019 Interim Supervision Order further directed that the protection hearing was to commence on February 27, 2019, to determine whether the children needed protection.

[59]      Subsequent to the making of the January 2019 Interim Supervision Order, further reports were received by MCFD and further inquiries were made by the Director including the following:

a)            A report from a restoration company that drug paraphernalia and drugs were present in the Family Home which then led to a visit by Social Worker McCrea accompanied by the RCMP. The Mother denied the existence of drugs, became escalated, and she denied entry into the Family Home. That led to the Director’s application for a temporary supervision order on February 26, 2019.

b)            Receipt on May 1, 2019, of information from the RCMP pursuant to an application made by the Director to the police as permitted by s. 96 of the Act. The application requested information about police contacts with the Mother and the Father. That disclosed separate incidences:

                                          i.   on October 19, 2017, involving the Mother’s screaming confrontation with her eldest child (J.G.) about his drug habit;

                                       ii.   on January 3, 2018, an abandoned 911 call at the Family Home and a refusal by a male and the Mother to permit police entry, resulting in the police forcing their way into the Family Home, but finding nothing other than the presence of an infant, (being the Child) thereby resulting in a report to MCFD;

                                       iii.   a March 31, 2018, report about a heated argument between the Mother and a male who was seen walking away from the Family Home;

                                       iv.   an incident on May 13, 2018, whereby the police received a report of a fire at the Family Home, firefighters being obstructed from putting the fire out, the Mother reportedly aggressively yelling at the police officers and preventing the officers from entering the Family Home, resulting in her arrest for obstruction and a reported observation that the Mother appeared to be high on drugs;

                                       v.   information about the extensive number of criminal convictions of the Father and the violent nature of some of those convictions.

c)            Information received on July 26, 2019, and on August 12, 2019, regarding the Father’s lack of attendance at two out of five scheduled counselling sessions for domestic violence prevention, with counsellor, Patricia Nasmyth. Those sessions had been arranged for him by MCFD.

d)            An August 12, 2019, police report of an alleged incident of the Father driving the Mother’s car and hitting a homeless man riding a bike, which then led to further observations of the Mother and the Father being in each other’s presence, including at the time the arrest of the Father for assault with a weapon and leaving the scene of the accident; police concerns about the Father being in possession of drug paraphernalia; reports of earlier observed interactions in April of 2019 between the Mother and a known/suspected drug dealer at 3 a.m. in the morning; and the denial to police by the Mother that she was purchasing drugs; police observations and concerns that the Mother’s physical appearance suggested she was unhealthy and looked like someone who used drugs/opioids.

e)            Information received by Social Worker McPherson from the Mother that she had hired two men to help chop firewood at the Family Home which she intended to offer for sale and that the Father had attended at the Family Home to assist with the chopping, but that he remained outside of the Family Home. According to the information received from the Mother, the Father had observed one of the hired men leaving with her property and that “something happened” and later the Father was arrested.

[60]      As a result of these reports and the receipt of this information, the Director had concerns that the terms of the January 2019 Interim Supervision Order were being breached because of the Father having access to the children, which had not been approved by MCFD, the children being in the presence of persons under the influence of alcohol or illicit substances, and the children being exposed to persons engaged in criminal activities or environments where illicit substances were present.

[61]      A meeting was arranged and took place at the MCFD offices on August 13, 2019, involving the Mother and the Father and Social Worker McPherson. A number of matters were discussed. The Mother and the Father provided further explanations of the events that had occurred in the previous days. The Mother indicated that the children wanted the Father in the home, denied that there was any drug use or that there had been any violence in their relationship. She also expressed concerns about the Father’s continuing participation in counselling with Patricia Nasmyth, which was opposed by the Mother. The Mother left the meeting before the conclusion of the meeting, but called on August 22, 2019, to apologize for leaving the meeting. Further meetings were arranged to interview the children and the social worker’s home visit was completed on September 17, 2019, at which time it was noted the Family Home was cluttered, but fairly clean, and no safety concerns were observed.

[62]      On October 10, 2019, the Director received another report concerning the Mother and the Family Home. It was generated by the RCMP and related to their concerns about their multiple attendances at the Family Home to ensure the safety of bylaw enforcement officers, who had apparently been called to the Family Home some 30 to 40 times since the Mother had moved into that property in 2017. The RCMP report stated that the adults at this property “have a history of violence and aggression” towards police and bylaw officers. There was an expression of concern about the safety of the children living in the Family Home based upon the appearance of the property. A number of concerns were enumerated, including safety concerns regarding what was described as an open pool, electrical and fire hazards, and broken glass and sharp objects. There was also a concern about decomposing dead animals that appeared to be “roadkill” which had been brought onto the property.

[63]      In response to that information, Social Worker McCrea attended at the Family Home that day around 3:30 p.m. to make her own observations about the safety hazards and also to observe a large amount of refuse about the property. Social Worker McCrea was permitted limited access to the Family Home by the Mother and did make observations of some of the children including the Child. However, Social Worker McCrea also observed burnt tinfoil on the ground outside of the door which raised concerns about drug use in the Family Home. Social Worker McCrea also observed that the Mother “appeared to be scattered, had a one-inch wound on her chin and appeared thinner than usual”. The Mother was in the process of leaving to go grocery shopping. Social Worker McCrea then departed from the Family Home.

[64]      As a result of these observations, an MCFD team meeting was convened and the decision was made for Social Workers McCrea and Craig to return to the Family Home, that same day, at approximately 6:40 p.m. with RCMP presence. J.G. was present, but the Mother was still away purchasing groceries, but she was informed by way of text that the social workers sought entry into the Family Home and wanted to speak to the children and wanted to discuss the January 2019 Interim Supervision Order with the Mother. Shortly after the Mother’s return to the Family Home, the social workers were admitted into the residence.

[65]      According to the Director’s evidence, the Mother started screaming and yelling at the social workers and the RCMP in front of the children. Ultimately, the RCMP member in attendance was required to physically restrain the Mother when she moved aggressively towards Social Worker McCrea. This then led to the Mother kicking the RCMP officer which then led to the Mother’s arrest for obstruction of a peace officer. She was taken to the local detachment of the RCMP. Charges of assault of Social Worker McCrea were apparently considered. As I understand it, no criminal charges were ultimately pursued against the Mother.

[66]      As a result of the incidences on October 10, 2019, the Director had concerns about the Mother’s mental health and possible substance use as well as concerns about the observed state of the Family Home.

[67]      Short-term safety plans were put in place between October 10 and November 15, 2019, and ultimately the H. Children went to live with their Father and the Child was placed with the Aunt. The Mother contends that she signed all of these safety plans under duress and at the insistence of MCFD and because of her fear of losing the children.

[68]      The Parents entered into an Extended Family Program Agreement pursuant to s. 8 of the Act on November 15, 2019, which led to the Child being placed in the care of the Aunt.

[69]      The Parents refused to sign a family plan prepared for them by Social Worker McCrea on December 2, 2019. It appeared that neither Parent was engaged in services to address the protection concerns of the Director.

[70]      On January 29, 2020, Team Leader Walters and the Mother spoke by telephone, at which point, the Mother indicated she was withdrawing her consent to the Extended Family Program Agreement.

[71]      The Director’s evidence indicates that at the time of the withdrawal of that consent there were still outstanding protection concerns including:

a)            concerns about the Mother’s mental health and/or substance use;

b)            unaddressed concerns about domestic violence in the Parents' relationship;

c)            concerns about the Father’s substance use; and

d)            concerns about the state of the Family Home.

[72]      It was the Director's view that there were no less disruptive measures than removal after the Mother had revoked her consent to the EFP and thereby to less intrusive planning and protection for the children, all in connection with the concerns identified by the Director and which had still not been addressed.

[73]      The Child was therefore removed on January 29, 2020, and a new Presentation Form and Form A Report to Court were filed on January 29, 2020.

[74]      Instead of proceeding to the presentation hearing on February 28, 2020, the Mother and the Director agreed to mediate. The Father did not participate as he was in custody on the day of the mediation.

[75]      The Director and the Mother thereby agreed as follows:

a)            the Mother would permit the Director to complete a home visit in her new residence once it was secured;

b)            the Mother would participate in a mental health assessment with a professional pre-approved by the Director;

c)            the Mother would self-refer to a drug and alcohol counsellor, pre-approved by the Director, to address her alleged drug use;

d)            the Director would provide the Mother with a letter outlining their concerns regarding the Mother’s mental health and alleged drug use, which letter was to be provided to the above-referenced professional.; That occurred by way of a letter dated March 9, 2020, from Team Leader Walters;

e)            the Mother was to provide a written consent for the above-referenced professionals to provide information to the Director about the Mother’s participation in services and her follow-through; and

f)            the Mother was to follow through with the reasonable recommendations of the above-referenced professionals.

[76]      The evidence of the Director is that these remain the expectations for the Mother. The Director’s further evidence is that their expectations for the Father are as follows:

a)            for the Father to engage with a drug and alcohol counsellor pre-approved by the Director to address his drug use and to follow through on any recommendations of that counsellor; and

b)            the Father will attend and successfully complete a Family Violence Program as agreed to between the Father and the Director.

[77]      On March 9, 2020, the Director received a report that on February 27, 2020, the Mother had called the RCMP and reported that she had been assaulted by the Father the previous week of February 20, 2020. This led to the arrest of the Father. The police reported that the Family Home was in complete disarray when they attended there on February 27, 2020, to clear the Family Home of the Father and other individuals believed to be the Father’s friends.

[78]      Parenthetically, the Mother subsequently recanted that assault allegation both to the police and in her evidence at the presentation hearing.

[79]      The Director’s evidence contained in the Walters’ Affidavit is that the Director has not been informed of the Mother or the Father engaging in any services to address the protection concerns other than the Father partially completing the Patricia Nasmyth’s Domestic Violence Program. The Director’s further evidence is that there remains concerns about the Mother’s mental health and/or substance use, the Father’s substance use, and domestic violence in the relationship between the Parents. The Director has not been called by the Parents to conduct and to complete a home inspection.

[80]      It is noteworthy that subsequent to making the Walters’ Affidavit on July 22, 2020, Team Leader Walters did speak to a Dr. Lea who has seen both the Father as well as the Mother for various issues. Dr. Lea is apparently a medical doctor, but is not a psychiatrist, but does deal with substance abuse and related behavioural matters.

[81]      In his viva voce evidence, Team Leader Walters confirmed that he was informed by Dr. Lea that Dr. Lea last saw the Mother on August 12, 2020, for the purpose of a drug test. It was negative other than for cannabis. It is Dr. Lea’s belief that the Mother does not struggle with a drug issue. Dr. Lea noted the possibility that the Mother suffered from an “adjustment disorder” and further noted that the Mother’s behavioural issues may be somewhat “situational” when dealing with high stress situations. There are no observable signs of psychosis. However, the Mother has feelings of persecution and was apparently diagnosed as a child with “oppositional defiance disorder”. Dr. Lea expressed the view that the Mother has PTSD symptoms and that these symptoms can be quite similar to a personality disorder. The PTSD is thought to arise from her difficult experiences as a child.

[82]      Dr. Lea recommended that the Mother received counselling to improve her functionality. There was a strong recommendation that the Mother self-refer to Nanaimo Mental Health at Brooks Landing and take counselling to deal with relationship and domestic violence issues.

[83]      Team Leader Walters also spoke with Dr. Lea about the Father. Dr. Lea had been consulted by the Father regarding the Father’s substance abuse issues. There is a notation that the Father had apparently relapsed in February of this past year. The suggestion made by Dr. Lea is that, based on the Father’s comments to Dr. Lea, the Father has limited support for his recovery than he experienced on the Mainland. The further suggestion is that the Father seeks to continue to receive care in order to deal not only with his substance abuse issue but also with domestic violence concerns. According to Dr. Lea, the Father does not believe that domestic violence has been an issue for him, but he expressed a willingness to participate in counselling with Patricia Nasmyth.

Summary of the Mother's Evidence Relating to the Director's Concerns

[84]      The Mother provided extensive evidence about a number of the matters which have been identified as protection concerns for the Director.

[85]      In summary, the Mother denies that there has been a pattern of domestic violence between herself and the Father. She suggests that on more than one occasion she has been pressured by the police or by MCFD into making domestic violence allegations against the Father. She has what she considers to be a series of highly conflicted relationships with the police, MCFD, bylaw enforcement officers, and a multitude of neighbours and acquaintances. There is no doubt, based upon her evidence, that she feels frequently harassed, persecuted, and bullied by these various groups and particularly by MCFD since the Father’s release from jail and the Parents’ recent attempts to reconcile and to reunite the family. However, the Mother denies that she is threatening or aggressive to these individuals, but rather seems to suggest that it is their behaviour towards her that is threatening and aggressive.

[86]      She testified that she had installed 12 outside cameras around the Family Home to record interactions with police, bylaw officers, and social workers. She makes it a common practice to record all of her interactions with these individuals during meetings or during other encounters.

[87]      She provided various explanations for what were apparently viewed by the various authorities as being hazardous things in the Family Home, stating that many of these were part of her multitude of projects that she undertakes with the children.

[88]      The Mother also testified that rather than being a drug user herself, she has assisted many people including her son, J.G., and his girlfriend in successfully dealing with their drug addiction issues. She denies the allegations that J.G. was high on hard drugs during any of the interactions with the social workers or the police, but did concede that he may have utilized cannabis or its derivatives to the point that he was high.

[89]      The Mother further testified that she has never had mental health concerns, but does acknowledge that the apparent diagnosis of Dr. Lea of her having PTSD may be because of the loss of her children as a result of the Director’s actions. She takes some comfort that she expects she can recover from the PTSD and that she does not have a personality disorder.

[90]      The Mother conceded that she has not yet self-referred nor sought counselling treatment at Brooks Landing citing problems with her present landlord. She says she intends to do so, but has not figured out “how it works”.

[91]      She stated that she is coping “incredibly well” even in the face of all that she has lost. She explained that this was the cause of her frequent and at times uncontrollable emotions during the course of this presentation hearing.

[92]      The Mother says that the Father has not engaged in drug use since December 2018, but did acknowledge that the Father did have a drug relapse in February 2020. This caused her to move out of the Family Home temporarily and to move in with a friend. There was an emotional exchange between the Mother and the Father at that time, but she suggests that no assault occurred. She says that during this period she had to clear the Family Home for a real estate inspection. She contacted the RCMP. The RCMP indicated that they would not assist her in doing so unless the Father was arrestable. Accordingly, she made the allegation about the assault simply to have the Father removed from the Family Home and then recanted the allegation thereafter.

[93]      The loss of the Family Home was particularly devastating on the Mother and for her children. She paints a picture of having “lost all of her things” which were thrown into a dumpster when she ultimately had to move out and give up vacant possession. She blames this loss on the Director’s intervention.

[94]      The Mother denies that there has been any domestic violence in the Parents’ relationship. She further denies that the Father has assaulted her or the children or that he has ever assaulted or raised his voice to any of the children. She has not taken any programming about domestic violence, but states she understands how it can impact children, noting that she has helped many acquaintances and friends extricate themselves from abusive domestic situations.

[95]      The Mother further denies that the Father was breaching one of the terms of the January 2019 Interim Supervision Order or any other condition of the Director about not to have contact with the children without the Director’s consent.

[96]      She acknowledges that at present time she is not in a position to call for a home inspection nor to have the Child return to live with her because she does not have a safe and suitable location for her RV unit, but she is actively seeking to establish that. She further indicated that had the Child been returned to her in January of 2020, she could have then made arrangements with family members to have a suitable home for the Child.

Summary of the Father's Evidence Relating to the Director's Concerns

[97]      The Father also provided a significant amount of evidence in response to several of the protection concerns raised by the Director. The Father said that he made a choice while he was still incarcerated that he did not want to be part and parcel of the life of the Mother and the Child unless he could make appropriate changes in his life.

[98]      Accordingly, he said that was a focus during his period of incarceration which finished in or around September of 2018. The Father admits that he did relapse into drug use in February 2020 because of the high stress of the situation. He does not make an excuse for that and accepts responsibility.

[99]      It was during the period of time of his relapse that he and the Mother had an emotional confrontation, but he denies that there was any physical violence between them.

[100]   In or around August 2020, the Father made contact with Dr. Lea, who had previously treated the Mother. He had a consultation with her. It is his intention to continue with Dr. Lea and to follow her advice and recommendations regarding drug abstinence. He also says that he intends to follow up with regular drug testing. None of this has yet occurred.

[101]   The Father indicated that he does not attend Narcotics Anonymous meetings or any other similar support group programs. He conceded that he has very little in the way of a drug abstinence network on Vancouver Island other than the support he receives from the Mother. He states that he has a substance use relapse prevention plan, but says he has never shared it within a social worker because he was never requested to provide it.

[102]   He explained that he took a number of domestic violence prevention courses while he was incarcerated, but he terminated counselling with Patricia Nasmyth because he felt she was trying to get him to admit domestic violence in his relationship with the Mother which did not exist. He has started some other programs, but did not complete them. He does not recall having been referred to other programs by any representative of the Director or by any of their resources.

[103]   The Father denies that he was breaching any of the restrictions on his access to the children that had been imposed upon him by court order or required by the Director.

The Issues to be Decided by this Court

[104]   Both Director’s counsel and Parents’ counsel agree that in dealing with the two-stage procedure at a presentation hearing under s. 35 of the Act the issues for the court to determine at this time are as follows:

1)            Has the Director established a prima facie case that, at the time of the removal of the Child, being January 29, 2020, there were reasonable grounds to believe the Child was in need of protection and that:

a)            the Child’s health or safety was in immediate danger; or

b)            no other less disruptive measures were available to adequately protect the Child; and

2)            What order under s. 35(2) of the Act provides appropriate care arrangements for the Child until a protection hearing can take place?

The Director's Submissions and the Order Sought

[105]   The Director seeks an order pursuant to s. 35(2)(d) of the Act placing the Child in the interim custody of the Aunt under the supervision of the Director. The precise terms of the order sought are set out below.

[106]   The Director submits that they have established the prima face case required by the first step. In that regard, the Director relies upon the evidence of historical interactions with the Parents and reports received by the Director relating to the following:

a)            the Father’s illicit drug use;

b)            conflict in the relationship between the Parents;

c)            domestic violence between the Parents;

d)            unsafe conditions in the Family Home;

e)            the Mother’s mental health or possible drug use observable in the conflict and in her escalating and heightened presentation during her multiple interactions with the MCFD social workers, municipal bylaw officers, and police officers, all of which culminated in the events of October 10, 2019, and her arrest for the alleged assault of the social worker, during the second of the two home visits by the social workers in the accompaniment of the RCMP on that date;

f)            the preceding lack of engagement and a lack of availing of accessible services by both the Mother and the Father to deal with historical child protection concerns of the Director and which were intended to be addressed by the January 2019 Interim Supervision Order and more specifically:

                             i)               the Father’s failure to engage in domestic violence prevention programming and drug relapse prevention;

                           ii)               the state of the Family Home and identified safety concerns; and

                           iii)               the Mother’s failure to engage in professional advice to address Mother’s mental health or possible drug use.

[107]   The Director further relies upon the evidence of:

a)            the Mother’s lack of cooperation with MCFD by withdrawing her consent on January 29, 2020, to her continued participation in the Extended Family Plan previously put in place to deal with child protection concerns that had been identified by the Director in order to avoid removal of the Child;

b)            the Mother’s report of being subject to a domestic assault at the hands of the Father in February 2020 and her subsequent recanting of that allegation;

c)            the Father’s continuing and present lack of engagement and lack of availing of or refusal to participate in existing services with respect to domestic violence prevention since January 29, 2020, notwithstanding an agreement made with Team Leader Walters on June 9th, 2020, to re-engage specifically with Patricia Nasmyth on domestic violence prevention;

d)            the Father’s admission of relapsing into illicit drug use in or around February 2020;

e)            the Father’s continuing lack of engagement and lack of availing himself of drug relapse prevention programs other than one meeting with Dr. Lea and his failure to follow up with drug testing prescribed by Dr. Lea;

f)            the Mother’s failure to follow through with mental health counselling as recommended by Dr. Lea through the Brooks Landing offices of Nanaimo Mental Health and Addiction Services.

[108]   The Director goes on to submit that for all of these reasons that existed on January 29, 2020, being the date of removal of the Child, and the Mother’s further admissions in her cross-examination that she was unable to care for the Child at that time because she was in the process of losing the Family Home, the Director says that there were no less disruptive measures available to adequately protect the Child.

[109]   The Director then further submits and relies upon the circumstances and the events that have taken place or continued since the January 29, 2020, date of removal of the Child and, specifically, the admission on the part of the Parents that there is presently a lack of a known and safe location for their fifth wheel RV trailer. At the date of the presentation hearing, they do not have access to electricity or to water for that RV unit. Accordingly, in their evidence, the Parents agree that until they have established that safe location, the RV unit is not a suitable residence for the Child.

[110]   Fundamental to the Director’s submission is that this is not a case of one clear protection concern, but a whole series of reports about a multitude of protection concerns preceding the January 29, 2020, removal including:

a)            concerns about a lack of stable and safe housing;

b)            concerns about substance use relapse by the Father;

c)            strong indications of illicit drug use in and around the Family Home;

d)            high conflict within the relationship of the Mother and the Father;

e)            failure on the part of the Mother and the Father to comply with the terms of the January 2019 Interim Supervision Order;

f)            failure on the part of the Parents to work in a cooperative ongoing fashion with the Director.

[111]   Since the January 2020 Removal of the Child, it is the Director’s submission that the evidence shows that there has been no improvement or progress made on any of these protection concerns, but rather all of these matters and the protection concerns have been further amplified.

[112]   In the Director’s submissions, it is noted that under s. 35(2) of the Act there is no specific reference to consideration of the best interests of the child. Any references in the Act to “best interests of the child” requires consideration of all relevant factors including those described in s. 4 of the Act.

[113]   However, the Director further submits, and I agree, that Bill C-92: An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (“Bill C-92”) applies to these proceedings because of the Child’s Métis heritage.

[114]   Section 10(1) of Bill C-92 requires that the best interests of the child must be a primary consideration in the making decisions or taking of actions in the context of the provision of child and family services in relation to an Indigenous child. Furthermore, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration. Section 10(3) sets out all of the factors to be considered in determining the best interests of an Indigenous child. Section 10(2) establishes that the primary consideration when considering the factors set out in s. 10(3) is to be the child’s physical, emotional, and psychological safety, security, and well-being, as well as to the importance for the child of having an ongoing relationship with his or her family and with the Indigenous group, community, or people to which he or she belongs and of preserving the child’s connection to his or her culture.

[115]   Again, the Director submits, and I further agree, that the "best interests of the child" consideration set out in Bill C-92 are not inconsistent with the “best interests of the child” provisions found in s. 4 of the Act.

[116]   Therefore, the Director says that the continuing placement of the Child with the Aunt is in the best interests of the Child and is justified for the following reasons:

a)            the Child has been with the Aunt since October 2019 in accordance with the third safety plan;

b)            the Parents get along with the Aunt;

c)            there is a good relationship between the Child and the Aunt;

d)            the placement of the Child with the Aunt is supported by the Parents;

e)            the placement permits the Parents to have frequent and generous access to the Child if the Parents choose to pursue the access;

f)            the Aunt shares Métis heritage with both the Father and the Child;

g)            the placement with the Aunt protects the Child from the conflict and instability of the Parents' relationship and the instability of their present lifestyle and permits the Parents to address the various child protection issues that have been identified by the Director, as are supported by the evidence; and

h)            due to the child protection concerns, the placement with the Aunt is consistent with the priority of placement of an Indigenous child as set out in Bill C-92 under s. 16(1)(b) and (c).

[117]   Therefore, the Director seeks an order pursuant to s. 35(2)(d) of the Act placing the Child in the interim custody of the Aunt and under the supervision of the Director with the following terms and conditions of supervision:

1)            the Aunt must allow the Director direct and private access to the Child whether scheduled in advance or not and as often as the Director deems necessary to ensure the safety and wellbeing of the Child;

2)            the Aunt must only allow the Mother and the Father access to the Child as pre-approved by the Director; and

3)            if the Aunt does not comply with these terms and conditions, the Director may remove the Child.

The Mother's Submissions and the Order Sought

[118]   The Mother submits that the Director has failed to meet the required standard of establishing a prima facie case at the presentation hearing and, as I understand it, the removal of the Child was therefore arbitrary.

[119]   As I understand the position being advanced by the Mother, there is not an adequate factual basis for the protection concerns being advanced by the Director. No evidence has been introduced to demonstrate that the Child is at risk.

[120]   Rather, as I understand the submission, the Mother does not interact well with authority figures, but she has been placed in such a position for an extended duration, since October 10, 2019, (which the Mother says is really the effective removal date of the Child) of having to deal with the Director’s social workers and with their unsubstantiated protection concerns.

[121]   It is further submitted that there is no evidence to support a contention that the Mother was incapable of dealing with the needs and caring for the children. All care was being provided in accordance with community standards.

[122]   The unnecessary involvement of the MCFD in the lives of the Mother, the Father, and all children, including the Child, has resulted in the Mother losing the Family Home and destabilizing her ability to resume care of the Child.

[123]   If the Director does have concerns about the Mother’s mental health issues, those have been explained by way of the PTSD diagnosis and are being addressed by way of the advice and recommendations of Dr. Lea.

[124]   Similarly, the Director’s concerns about domestic violence and substance abuse can also be addressed by counselling and through Nanaimo Mental Health as has been suggested by Dr. Lee.

[125]   Therefore, the Mother seeks a return of the Child without supervision. Alternatively, if the court is of a view that there is a need for some supervision, that supervision should be limited to the ability of the Director to inspect the home, see and speak privately to the Child, and a direction that the Mother and Father engage with Dr. Lea and follow up on the reasonable recommendations of Dr. Lea.

[126]   It is acknowledged that at present time, the Parents have a lack of stable housing and a home inspection has not taken place. It is submitted that this may take a short period of time to rectify and, therefore, it is suggested that it is open to this court to make an order for return of the Child to the Parents but that return could be adjourned until such time as the stable housing and inspection by the Director has occurred.

The Father's Submissions and the Order Sought

[127]   In submissions, the Father also agreed that the effective date of the removal of the Child was October 10, 2019.

[128]   As at that day, the Father says that there were no child protection concerns except for the one day of high conflict on October 10, 2019, between the Mother and the attending social workers.

[129]   It is submitted that there was a continuing burden placed upon the Mother of constant and unnecessary visits to the Family Home by MCFD which, due to their frequency, amounted to harassment. No criminal charges ever arose out of that October 10, 2019 emotional interaction.

[130]   It is submitted that, with the advantage of hindsight, the safety plan should not have been instituted and the children should have been returned the next day to the Mother. However, events then cascaded in such a fashion to the point that the Mother was subsequently in the process of losing her Family Home and was then unable to assume care of the children.

[131]   It is submitted that there is no evidence of child protection concerns as at the January 29, 2020, date of removal.

[132]   The allegations that were made by the Mother of domestic violence on two occasions were recanted. The allegations were precipitated by the Father’s relapses into substance abuse which the Mother reacted against because of her concerns about the children and the impact on her family.

[133]   In other words, as I understand the submission, the Mother was actually demonstrating her concern for the safety of the children by calling the police and making the allegations which were subsequently recanted. It also demonstrates that she will take necessary protective steps for the Child if the Father relapses in the future.

[134]   In the Father’s submissions, the only real risk of concern is the possibility of his substance use relapse. As I understand it, the submission is that the Father recognizes that risk, he has a relapse prevention plan and has started an engagement with Dr. Lea to prevent that relapse. Given his history, he is presently “doing quite well”.

[135]   It is submitted that the Father has not breached the terms of the January 2019 Interim Supervision Order. With respect to domestic violence counselling, it is submitted that he has not been properly referred to a “family violence program” as contemplated by Term 7 of that order. It is argued that Patricia Nasmyth is not a “family violence program”. Term 7 also requires agreement as between the Father and the Director and that the requirement of an agreement has not been satisfied. Rather, the Director has insisted on continuation with Patricia Nasmyth notwithstanding the concerns expressed by the Father and the Mother.

[136]   The Father submits that both he and the Mother have started their follow-up with Dr. Lea and have testified that they will continue with that engagement to address any domestic violence concerns of the Director, notwithstanding that they say that there are no real concerns even in light of the reports in August 2016, 2018, and February 2020.

[137]   Therefore, the Father agrees with the submissions of the Mother and concurs with the orders for the return of the Child being sought by the Mother.

Analysis of the Issues and Conclusions in Light of the Evidence

[138]   I agree with the approach of the Honourable Judge Barrett described in her February 4, 2020, unreported decision: British Columbia (Child, Family and Community Service) v. A.R., K.G. and T.J. (Duncan Registry File 12360) in which she says as follows, in reference to determining whether the Director has established a prima facie case, and as to what interim order the court make:

33.      In determining both issues, I have considered the specific circumstances surrounding the Children’s removal within the context of the history of the Ministry's involvement with this family.

34.      It is wrong, in my view, to do otherwise and simply isolate the evidence to the specific circumstances of the removal. That approach, in my view, would result in relevant and valuable information being excluded from the court's consideration and therefore would not enable the court to make properly informed decisions on the issues in this hearing.

35.      The historical involvement of these parties as well as the litigation history is vital to provide context to the Director's decision-making at the time of the Children's removal and to provide the court with valuable information when determining what interim order to make at the conclusion of this hearing.

Issue Number One: Has the Director Established a "Prima Facie" Case?

[139]   On the whole of the evidence before me, I am satisfied that the Director has established a prima facie case. I am satisfied that the removal of the Child on January 29, 2020, was justified under the Act.

[140]   I find that there were reasonable grounds on the part of the Director to believe the Child needed protection. I also find that there were no less disruptive measures available at the time of removal.

[141]   I agree with the proposition of the Director that, at the time the Mother withdrew her consent from the EFP, there is sufficient evidence that there were outstanding protection concerns including:

a)            concerns about the Mother’s mental health and possible substance use;

b)            unaddressed concerns about domestic violence in the Mother and Father’s relationship;

c)            concerns about the Father’s substance use and possible relapse;

d)            concerns about the state of the Family Home; and

e)            an apparent lack of cooperation and engagement on the part of both the Mother and the Father to engage in services to address these child protection concerns.

[142]   I am mindful that I have before me contradictory evidence provided by the Mother and the Father on several of these concerns. However, their evidence does not meet the threshold at this stage of establishing that the Director’s concerns are manifestly wrong, untrue, or unlikely to have occurred. Therefore, any conflict in the evidence on these issues is resolved in favour of the Director.

[143]   I have absolutely no doubt that the Mother and the Father have great love for the Child, care about her welfare, and believe that they are capable of fulfilling their parental responsibilities for the Child.

[144]   However, that is not the test that I must consider at this stage.

[145]   Given how life events have unfolded for the Parents since January of 2020, it is clear to me that the Parents have a number of personal, financial, and relationship challenges in front of them.

[146]   The protection concerns identified by the Director will no doubt need to be re-examined by the Parents going forward, notwithstanding the apparent attitude of the Parents to MCFD.

Issue Number Two: What Order under Section 35(2) of the CFCSA Provides Appropriate Care Arrangements for the Child until a Protection Hearing Can Take Place?

[147]   Any removal of any child by the Director will be disruptive. In this case because of the prior existing care arrangements that were in place with the Aunt, that disruption has been minimized. At this stage, the continuation of that arrangement meets any applicable test of being in the best interests of the Child.

[148]   Given all of the evidence before me, I have concluded that the orders sought by the Parents for the return of the Child to them are, in my view, inadequate and not appropriate in the circumstances.

[149]   Similarly, given all of the evidence before me and for the various reasons outlined by the Director in submissions, I am of the view that the order sought by the Director is the appropriate order to be granted at this time until a protection hearing can take place.

[150]   There will be an order accordingly.

(DISCUSSION RE DATE TO RETURN)

[151]   THE COURT: November 25, 2020, at 9:30 a.m. on the regular family remand list, is that correct?

[152]   MS. HAWES: Yes, Your Honour, correct.

[153]   THE COURT: All right. Any other things that counsel wish to raise with me at this point?

[154]   MR. PARSONS: Simply, Your Honour, it is Darryl Parsons, the issue of an access order.

[155]   THE COURT: I am prepared to hear submissions on that.

(SUBMISSIONS RE ACCESS ORDER)

[156]   MR. PARSONS: Can you confirm that it would be reasonable access supervised at the Director’s discretion, Ms. Hawes?

[157]   MS. HAWES: I can confirm that that is exactly what I said, a s. 55 order and the standard terms.

[158]   THE COURT: Yes, Ms. Hawes says the s. 55 order on the standard terms is what will be in place.

[159]   MS. HAWES: Yes, so reasonable access provided at the discretion of the Director.

[160]   THE COURT: I think that is already set out in the form of order you asked for, is it not?

[161]   MS. HAWES: That is accurate, yes.

[162]   THE COURT: Yes, all right. Did you hear that Mr. Parsons?

[163]   MR. PARSONS: Yes.

[164]   THE COURT: Thank you. Mr. Gorman, any questions from you?

[165]   MR. GORMAN: No, Your Honour.

[166]   THE COURT: All right. I note for the benefit of counsel that the Parents withdrew from the courtroom prior to me finishing my reasons for judgment.

[167]   MR. PARSONS: Yes, Your Honour.

[168]   THE COURT: All right. I do intend to order a transcript of the reasons so that they can be available, if necessary or if useful, for any further proceedings.

[169]   MS. HAWES: Thank you, Your Honour, and I will just note for the record that that s. 55 access order, it encompass both parents [indiscernible/teleconference].

[170]   THE COURT: Ms. Hawes wanted to clarify that the s. 55 order will be in favour of both the Mother and the Father.

[171]   MR. PARSONS: Yes, thank you.

[172]   THE COURT: Thank you. All right. Ms. Hawes will draft the form of the order?

[173]   MS. HAWES: Yes, Your Honour.

[174]   THE COURT: Thank you.

(REASONS FOR JUDGMENT CONCLUDED)

CORRIGENDUM - Released November 12, 2020

In the Oral Reasons for Judgment dated October 16, 2020, the following change has been made:

[1]         In paragraph 59 d), April of 2919 should be April of 2019.

[2]         Paragraph 59 d) should now read:

An August 12, 2019, police report of an alleged incident of the Father driving the Mother’s car and hitting a homeless man riding a bike, which then led to further observations of the Mother and the Father being in each other’s presence, including at the time the arrest of the Father for assault with a weapon and leaving the scene of the accident; police concerns about the Father being in possession of drug paraphernalia; reports of earlier observed interactions in April of 2019 between the Mother and a known/suspected drug dealer at 3 a.m. in the morning; and the denial to police by the Mother that she was purchasing drugs; police observations and concerns that the Mother’s physical appearance suggested she was unhealthy and looked like someone who used drugs/opioids.

 

 

___________________________________

The Honourable Judge J.P. MacCarthy

Provincial Court of British Columbia