IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The issue in this case is the future of A.K. (“A”), who is now 6 years of age.

[2]           At present, A’s sole guardian is the Director of Child, Family & Community Service, by virtue of a continuing custody order made by Her Honour Judge Crockett of this Court on March 23, 2017. Mr. K, A’s biological father, applies to set aside that order.

[3]           It is not clear that Mr. K would become A’s guardian if the continuing custody order were set aside. A biological parent is a guardian if and only if the biological parent “regularly cared for the child”: Family Law Act SBC 2011, c. 25, s 39. As discussed below, Mr. K has never had day-to-day care of A, and so is not her guardian. There is no application before the Court to appoint Mr. K (or anyone else) to be A’s guardian.

[4]           Mr. K’s application was opposed by Ms. F, A’s biological mother. Sadly, however, Ms. F died of a drug overdose in March, 2019, and so was unable to participate in the hearing.

[5]           The Director opposes the application.

[6]           Three First Nations participated in the hearing, the Homalco and Klahoose First Nations (of which Ms. F was a member) and the Wuikinuxv First Nation, of which Mr. K is a member.

[7]           On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: (i) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and (ii) if so, whether cancellation of the continuing custody order is in the child’s best interest: Director of Child, Family & Community Service v. A.I., 2005 BCPC 620; [2005] BCJ No. 2976 @ paragraph 3. I am prepared to assume that there has been a significant change in circumstances since the continuing custody order was made. However, I am of the opinion that A’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason. The balance of these reasons for judgment are concerned with the question of A’s best interests.

[8]           The factual matrix of this case is complex. An overview may assist the reader:

[9]           There are two applicable statutes. Until January, 2020, child protection issues for all children in British Columbia were governed by the Child, Family & Community Service Act, RSBC 1996 c. 46 (“the Provincial Statute”). A new federal statute came into effect on January 1, 2020: An Act Respecting First Nations, Inuit and Metis Children, Youth and Families SC 2019, c 24 (“The Federal Statute”).

[10]        A constitutional challenge to the Federal Statute is now pending before the Quebec Court of Appeal. However, no constitutional issue was raised in this case.

[11]        The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody and protection. I am informed that none of the Wuikinuxv, Klahoose and Homalco First Nations First Nations have exercised that right.

[12]        The factors which I am to consider are set out in sections 2 - 4 of the Provincial Statute and sections 8 – 17 of the Federal Statute. I find no inconsistency between the two statutes which is pertinent to the issues in this case. For that reason, I need not consider the doctrine of federal paramountcy, as described in Alberta (Attorney-General) v. Moloney, 2015 SCC 51 (CanLII), [2015] 3 SCR 327 @ paragraphs 14 – 29.

[13]        Section 2 of the Provincial Statute and section 10(1) of the Federal Statute each provides that A’s safety and well-being are to be the “paramount considerations” in my deliberations. One significant difference between the statutes is that section 16(1) of the Federal Statute provides that “… to the extent that it is consistent with the best interests of the child…”, A is to be placed (in order of preference) with Mr. K, another family member or a member of her indigenous community. No similar provision appears in the Provincial Statute. I construe the direction in the Federal Statute to mean that I should form an opinion as to A’s best interests, and then consider whether placement with Mr. K would be consistent with those interests. If not, I should place A with a member of her extended family or a member of one of the First Nations to which she belongs (Homalco, Klahoose or Wuikinuxv). The placement proposed by the Director is with A’s mother’s cousin, Mr. P, who is the elected Chief of the Klahoose First Nation.

[14]        The following are pertinent extracts from the reasons for judgment rendered by Her Honour Judge Crockett when she made the continuing custody order on March 23, 2017:

[15]        Ms. F was A’s biological mother. As noted above, she died of a drug overdose in March, 2019. Ms. F’s father is a member of the Klahoose First Nation and her mother was a member of the Homalco First Nation. The central community of the Klahoose First Nation is on Cortes Island. The central community of the Homalco First Nation is in Campbell River.

[16]        Mr. K was born in Bella Bella, which provides the closest hospital to Rivers Inlet. He spent the first 4 years of his life at Rivers Inlet. His parents moved to Haida Gwaii (about 500 kilometres northwest of Rivers Inlet), when he was four, and then to Vancouver when he was 10. He entered the workforce at age 17, and is now employed in the logging industry. He is a highly-skilled worker, and is regularly employed and well-paid. He has some knowledge of the Wuikinuxv language and culture, but acknowledges that it is “limited”. He said:

[17]        Mr. K’s extended family live in Campbell River and Port Hardy.

[18]        Mr. K acknowledges that he and Ms. F were active users of heroin and cocaine before A was born, and that A tested positive for those substances at birth. He has availed himself of counselling opportunities made available to him, and says that he is now clean and sober. He abused steroids as a young man. He now takes them by prescription. He attributes some of his anger management challenges to abuse of steroids.

[19]        Mr. K has two sons (ages 12 and 17) from an earlier relationship. In April, 2019, they came to live with Mr. K, his present spouse, Ms. M, and her two sons (ages 11 and 14) in Gold River. Ms. M is Caucasian. Before that, Mr. K’s sons were in the custody of their biological mother, by whom they were grossly neglected. Before they came to live with Mr. K and Ms. M, the boys were malnourished, housed in unsanitary conditions and not enrolled in school.

[20]        Mr. K is a dignified, articulate, resolute man, who has worked hard to overcome a very unfortunate personal history. However, he is also a very angry man. While he controlled his temper admirably in the courtroom, his anger was manifest in his presentation.

[21]        A was born on [omitted for publication]. She was born addicted to opiates and was held in hospital until October 4, 2013, when she and Ms. F moved to a maternity foster home funded by MCFD. In the spring of 2014, Ms. F and A moved into their own accommodation under the terms of a supervision order. On September 19, 2014, MCFD removed A from her mother’s care and placed her in a foster home on Quadra Island. Her foster parents were [names omitted for publication]. [The foster parents] are Caucasian. [The foster parents] were approaching retirement age, and so declined to put themselves forward as adoptive parents. Mr. P and Ms. S offered to provide a permanent home for A, and she moved to their home on Cortes Island in May, 2018. She has resided there since May, 2018.

[22]        Mr. P is Ms. F’s cousin and the elected chief of the Klahoose First Nation. He serves, ex officio, as a director of the Klahoose corporations which conduct aquaculture and forestry operations in Klahoose traditional territory. Those ventures are commercially successful. His wife, Ms. S was born in Wales. She holds dual British and American citizenship and is a permanent resident of Canada. She is also an adopted member of the South Dakota Sioux First Nation. They live on Cortes Island.

[23]        A’s social worker reports that A remains strongly attached to the [foster parents], and visits them often on Quadra Island. The social worker describes A as a happy, intelligent child who is meeting all of her developmental milestones. She visits frequently with her maternal grandfather, from whom she has learned the language and traditional songs and dances of the Homalco and Klahoose people.

[24]        A spends much of her time engaged in traditional food-gathering tasks of the Klahoose people and in preparing and preserving the foods so gathered. Her after-school activities, and some of her classes in school, are conducted in the language of the Klahoose and Homalco people.

[25]        A has a half-sister, now age 16, Ms. F’s daughter from a previous relationship, who lives in the Yukon Territory but visits Cortes Island every summer.

[26]        A also has extended family (aunts, uncles, cousins, etc.), most of whom live on Cortes Island. Of particular importance among that group is her maternal grandfather, whom she visits often.

[27]        Ms. Grauer is a clinical counsellor in practice on Cortes Island. Ms. S referred A to Ms. Grauer to assist A in coping with her grief when Ms. F died. Ms. Grauer is an experienced and well-qualified clinical counsellor. I would have accepted her as qualified to give opinion evidence if she had been tendered for that purpose. Unfortunately, the Director did not give notice of opinion evidence, as required by s. 11 of the Evidence Act, RSBC 1996, c 124. As a result, she was called only for the purpose of giving evidence of objective facts.

[28]        Mr. K lives in Gold River, British Columbia, with Ms. M, her two sons and Mr. K’s two sons (A’s half-brothers). Gold River lies in the traditional territory of the Mowachat/Muchatlaht First Nation.

[29]        Mr. K is a member of the Wuikinuxv First Nation. The traditional territory of the Wuikinuxv First Nation is on the shores of Rivers Inlet.

[30]        Quadra Island is part of the traditional territory of the Homalco First Nation. Cortes Island is part of the traditional territory of the Klahoose First Nation.

[31]        These facts give rise to some geographical challenges when one attempts to provide A with meaningful opportunities to engage in the cultural life of the Homalco, Klahoose and Wuikinuxv First Nations.

[32]        The population figures provided below are those recorded by Statistics Canada in the 2016 census. Campbell River is a small city, with a population of just over 35,000. Gold River is a village approximately 80 km west of Campbell River, with a population of about 1200. Cortes Island is about 50 km east of Campbell River, and has a population just over 1000. Quadra Island lies between Campbell River and Cortes Island. Port Hardy is a village approximately 250 km northwest of Campbell River, with a population just over 3600. Rivers Inlet is a remote area 112 nautical miles northwest of Port Hardy.

[33]        There are good all-weather roads between Campbell River and Gold River (about an hour’s drive), and between Campbell River and Port Hardy (about 3 hours’ drive).

[34]        Access to Cortes Island is provided by two ferries, the first from Campbell River to Quadra Island and the second from Quadra Island to Cortes Island. Each ferry trip takes about 20 minutes. When one adds in the time necessary to drive across Quadra Island and the inevitable waits at the ferry terminals, the journey takes one to two hours.

[35]        Access to Rivers Inlet may be by boat from Port Hardy (about 4 hours) or by float plane from Campbell River (about 90 minutes). Float plane travel is very expensive.

[36]        It will be apparent from this brief description that it is relatively easy for A to participate in the cultural life of the Klahoose and Homalco First Nations if she lives on Quadra Island or Cortes Island, which are separated only by a 20-minute ferry ride. Chief Blaney of the Homalco First Nation told me that:

[37]        Whether she lives in Gold River, as Mr. K proposes, or on Cortes Island, as the Director intends, A’s access to the cultural life of the Wuikinuxv First Nation will be much more difficult. Chief Johnson of the Wuikinuxv First Nation informed me that the language of the Wuikinuxv people shares a few common words with the languages of the Klahoose and Homalco people, but is a distinct language. There about 300 members of the Wuikinuxv Nation, of whom about 60 live at Rivers Inlet. I asked about opportunities for those who live away from Rivers Inlet to participate in the cultural life of the Nation. He replied:

[38]        Mr. K’s two sons (A’s half-brothers) attend school in Gold River, where they participate in classes on the subjects of indigenous language and culture. However, the language and culture taught in those classes are those of the Mowachat/Muchatlaht First Nation, which are distinct from those of the Homalco, Klahoose and Wuikinuxv First Nations.

[39]        Mr. K was the aggressor in two incidents of family violence which share certain common characteristics. In each case, the victim was Mr. K’s intimate partner. In each case, Mr. K struck and choked the victim to the point of unconsciousness. Mr. K’s two sons were present during, and witnessed, the first incident, in which their mother was the victim. A was present during, and witnessed, the second incident, in which Ms. F was the victim.

[40]        The first incident occurred on June 22, 2010. On June 24, 2010, Mr. K entered a guilty plea to a charge of assault causing bodily harm and received a sentence of 9 months’ jail and 18 months’ probation.

[41]        The second incident occurred on March 2, 2015. Her Honour Judge Crockett described the incident in the following terms in her reasons for judgment:

[42]        A third incident occurred at Mr. K’s home in Gold River in June, 2019. Conflicting accounts of the event were offered in evidence before me, but the essential facts are not in dispute. Mr. K was living in the house with his two sons, Ms. M, and Ms. M’s two sons. Mr. K and Ms. M had an argument, which culminated in Mr. K throwing a number of her belongings around and out of the house. The boys were present, and witnessed the altercation. Ms. M fled the house with her two sons and called 911 to report the event and to express her concern that Mr. K might be suicidal. Mr. K and Ms. M reconciled soon thereafter. Ms. M and her sons returned to live with Mr. K and his two sons.

[43]        Mr. K has clearly made significant progress with his substance abuse and anger-management issues. Mr. K’s addictions are now in remission, but there is always a risk of relapse with every recovering addict. Mr. K has a history of violent behaviours. I am not in a position to quantify the risk of future family violence initiated by Mr. K, but I consider it to be a real risk, which should not be ignored.

[44]        Each of the governing statutes emphasizes the importance of fostering A’s connection to, and participation in, the cultures of the First Nations of which she is a member.

[45]        A has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully-integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation. She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day-to-day life.

[46]        A has had some exposure to the language and culture of the Wuikinuxv First Nation. One of the after-school programs in which she participates (the “Wolf Pack”) is led by a Wuikinuxv woman who grew up on Rivers Inlet and is fluent in Wuikinuxv language and culture. A has learned several Wuikinuxv songs from her. Several other Wuikinuxv people have married members of the Klahoose First Nation and live on Cortes Island. A has met them, and so gained some exposure to the language and culture. One of A’s favourite activities are the “Tribal Journeys” undertaken by children from the Klahoose community several times each year. The children, supported by adult caregivers, paddle traditional canoes down the coast to visit other First Nations who live between Port Hardy and Seattle. Ms. S accompanies A on these journeys, and Mr. P joins them when his obligations as Chief permit. One highlight of the gatherings with other First Nations is the presentation by each Nation of a “protocol”; i.e. a performance of the traditional songs and dances of each Nation, each in its own language. Ms. S and A always participate in the Klahoose protocol and attend the Wuikinuxv protocol, affording A some exposure to Wuikinuxv language and culture.

[47]        Mr. K says that A should learn the Wuikinuxv language and culture, but proposes no practical program to achieve that objective. He is unable to teach her himself because (through no fault of his own) he lacks the necessary knowledge. He points out that he has extended family in Campbell River and Port Hardy, and that the Wuikinuxv First Nation holds community gatherings several times each year in Port Hardy and Rivers Inlet. He suggests that those would offer opportunities for A to participate in Wuikinuxv culture and to learn the language, and says that, if A is transferred to his care, he will ensure that she is exposed to those opportunities. Given the difficulties of geography, described above, it is likely that those opportunities will be limited to a few visits, each of a week or less in duration, over the course of each year. There is no evidence of the cultural fluency of Mr. K’s extended family. If it is similar to his own, visits with them will not expand A’s cultural horizons.

[48]        One way of assessing A’s chances of a meaningful connection to the Wuikinuxv culture, if she were placed in the care of Mr. K, is to look at the experience of Mr. K’s two sons, her half-brothers. They attend school in Gold River, which includes classes in the language of the Mowachat/Muchatlaht First Nation. That language and culture are distinct from those of the Klahoose, Homalco and Wuikinuxv. Ms. M said that, for the boys to learn the Wuikinuxv language:

[49]        Mr. Busch referred me to, and urged me to accept, the views expressed in “Rethinking Racine v. Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved in Child Protection” Canadian Journal of Law & Society (2019) Vol. 34, No. 1, pages 55 – 78 (“the Racine Paper”). At paragraph 74, the learned authors say:

[50]        I conclude that A’s opportunities to learn about and participate in Wuikinuxv culture are at least as good, and probably better, on Cortes Island than they would be in Gold River.

[51]        Thanks to [the foster parents], Mr. P and Ms. S, A is fluent in the languages of the Homalco and Klahoose First Nations and participates actively in their culture every day. If she moves to Mr. K’s house in Gold River, it will take her more than 2 hours to travel to a place where she can speak the Homalco/Klahoose language and participate in the culture. She will cease to be immersed in that culture and will become an occasional visitor.

[52]        In short, if I were to accede to Mr. K’s application, A would lose one culture and not gain another to replace it.

[53]        Some might say that it would be unfair to deprive Mr. K of the opportunity to parent A because he was a victim of colonial cultural imperialism. Fairness to each of the parties is, of course, an imperative for every court in every case. However, each of the governing statutes expressly provides that A’s best interests are the over-riding consideration on this application. The statutes do not allow me to prefer Mr. K’s interests at the expense of A’s.

[54]        Each of the statutes mandates a consideration of the significance of continuity in A’s life. “Continuity” may be approached in either of two different ways. As a matter of common sense and general knowledge: (i) significant changes in a child’s life can produce a feeling of insecurity; and (ii) separation from significant people in a child’s life can be very distressing. As a matter of science, there exists a body of scholarly research on the subject, which is commonly described as “attachment theory”.

[55]        I am mindful of the limitations upon my knowledge of the science of attachment. I lack the scientific education necessary to enable me to read the scholarly literature with a sufficiently critical eye. I pointed out to counsel that some opinion evidence from a qualified expert would be helpful. No such evidence was offered, but both counsel invited me to consider the scholarly literature when assessing A’s interests.

[56]        In the Racine Paper, the learned authors advance their case for the proposition that Racine v. Woods 1983 CanLII 27 (SCC), [1983] 2 SCR 173 should be reconsidered in light of current developments in the science of attachment. Among other scholarly sources, the learned authors refer to The Cultural Nature of Attachment: Contextualizing Relationships & Development MIT Press, 2018 (“The MIT Text”). 

[57]        Even to my untutored eye, two points emerge clearly from the Racine Paper and the MIT Text:

[58]        In response, Mr. Armstrong referred me to my own decision in Director v. A.M. and A.L.D. 2017 BCPC 271; [2017] BCJ No. 1854 @ paragraph 25. In that case, I quoted the following passage from "Clinical application of attachment theory in permanency planning for children in foster care: the importance of continuity of care" Infant Mental Health Journal (2004) Vol. 25(4), pages 379 – 396 (“the Montreal Paper”). Under the heading "Conclusions", the learned authors wrote:

[59]        The most significant evidence on the subject of A’s attachments was given by Ms. Grauer. The following are pertinent extracts from her evidence (underlining added):

[60]        I conclude that A’s primary attachment is to Ms. S.

[61]        I am prepared, for the purposes of this case, to assume that the Racine Paper, advanced by Mr. Busch on behalf of Mr. K, is the correct approach to consideration of attachment issues in relation to indigenous children. On that premise, the best placement for A is with Mr. P and Ms. S on Cortes Island. In that placement, she engages daily with other members of her First Nation, including members of her extended family, and incorporates the language and culture as integral parts of her day-to-day life. If she moves to Mr. K’s home, she will be isolated as a member of Mr. K’s nuclear family, with only rare opportunities to speak her indigenous language, engage in her indigenous culture and participate in the cultural life of her extended family and other members of her First Nation.

[62]        Ms. Grauer and Ms. S inform me that A knows nothing about these court proceedings, and is not aware that a judge is considering whether to order that she be placed in the care of Mr. K.

[63]        The following exchange transpired between Ms. Grauer and me at the conclusion of Ms. Grauer’s evidence (underlining added):

[64]        Counsel declined my invitation to ask any further questions consequent on the exchange quoted in paragraph 63, above. Acting on Ms. Grauer’s advice, I have refrained from making any inquiry, directly or through an intermediary, to ascertain A’s views.

[65]        Section 16(1) of the Federal Statute provides that the biological parents of children in care are to be the first-choice caregivers “… to the extent that it is consistent with the best interests of the child”. I conclude that placement with Mr. K would not be consistent with A’s best interest, and that her best interests will be best served by remaining in the care of Mr. P and Ms. S.

[66]        The application is dismissed.