IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: S. W. (S.) is 18 months old today. When S. was born, her parents, Ms. D. (R.D.) and Mr. W. (D.W.), worked cooperatively with the Director. On October 23, 2018, an interim supervision order was agreed to. On December 4, 2018, a six-month supervision order was made. In March 2019, it was alleged that there was a breach of the supervision order and S. remained in care until January 7, 2020, when another supervision order allowed S. to return to her mother's care.

[2]           On March 10, 2020, S. was once again removed from her mother's care due to alleged breaches of the supervision order. A presentation hearing proceeded April 9, 2020. The social worker, Ms. Hammond, and Ms. D. testified. The [redacted for publication] Nation did not call evidence, but made submissions. Mr. W. did not participate in the hearing.

[3]           The last paragraph of the Form A Report to Court describes what is alleged to have occurred on March 10, 2020. It reads as follows:

[4]           The Director submits that there are significant and serious concerns about the violence in Ms. D. and Mr. W.'s relationship such that the supervision order no longer adequately protects S., and she is in need of protection. The Director further submits that if Ms. D.'s testimony is accepted, then there is another breach of the supervision order because Ms. D. allowed S. to be supervised by an individual without the Director's approval. That is contrary to Term 10 of the supervision order, which reads that, "The mother must ensure that the child is always under the supervision of a responsible adult approved of by the Director."

[5]           The Nation also takes the position that due to the significant and serious concerns about the violence in S.'s parents' relationship that the supervision order no longer adequately protects S. and she should remain in the interim custody of the Director.

[6]           Ms. D. acknowledges that there was a breach of the order because she allowed S. to be cared for by a person without first obtaining the Director's approval. She submits, however, that is not a sufficient reason to keep S. in the Director's care. With respect to the allegations of family violence, Ms. D. submits that S. was not home on March 10, 2020 during the argument and there has been no physical violence or other arguments between her and Mr. W. between January 7, 2020, and March 10, 2020.

[7]           One; there is a significant conflict in the testimony. The Director alleges, although has no direct evidence, that S. was at home when her parents were arguing. This would be a breach of Term 11 of the order, which reads: “that the mother must not expose the child to any violent behaviour, either physical or verbal, and she must immediately remove the child from any situation where conflict between any adults, including herself and the father, can potentially escalate to the point of violence.” Ms. D. testified that she asked the person who was staying with her to take S. to the store prior to the argument with Mr. W., thereby complying with Term 11, but breaching Term 10 because that person was not approved of by the Director.

[8]           Two; pursuant to s. 42(6) of the Child, Family and Community Service Act, at the conclusion of the presentation hearing, the court in this case has only two options: (a) order that S. be in the interim custody of the Director; or (b) return S. to Ms. D.'s care under the Director's supervision and order that the January 7, 2020 supervision order continue to apply. The issue that therefore arises is what is the test at this presentation hearing?

[9]           At a presentation hearing, the practice is to resolve any conflict in the evidence in favour of the Director and to not make any findings of credibility, leaving the resolution of such conflicts to the protection hearing unless the facts the Director seeks to establish are manifestly wrong or untrue or unlikely to have occurred; see B.B. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46, at paragraph 14.

[10]        The Form A Report suggests that S. was present during the argument between her parents on March 10, 2020. There is no issue that this breaches Term 11 of the supervision order. However, Ms. D. testified that S. was not present and was with another adult. That person did not testify and, accordingly, the Director submits I should draw a negative inference from that and therefore not accept Ms. D.'s testimony.

[11]        I do not agree. Presentation hearings are to be summary in nature. Ms. D. testified S. was not home during the argument. There was a delay in police arriving at Ms. D.'s home because they stopped Mr. W. a short distance from the home and spoke with him. When police got to Ms. D.'s home, S. was there. That does not mean she was present for the argument. S. could very well have returned after the argument. Ms. D. testified S. was not present during the argument. She was cross-examined. There is no direct evidence S. was at home during the argument. I am really being asked to assume S. was home. I find that on this point the fact that S. was home is untrue. I accept Ms. D.'s testimony. I am not satisfied S. was present during the argument.

[12]        However, Ms. D. testified that there has not been ongoing conflict in her home, including verbal arguments, yelling, screaming, crying, and smashing sounds. That information was provided to the Director and is contained in the Form A Report to Court. The Director submits that S. would have been present for some, if not all, of those violent episodes. There is a history of disputes and violence in S.'s parents' relationship. I find that this conflict in the evidence must be resolved in favour of the Director. There is insufficient evidence for me to conclude that these allegations are manifestly wrong, or untrue, or unlikely to have occurred.

[13]        In my view, the test at a presentation hearing pursuant to s. 42.1(5) of the Child, Family and Community Service Act is the same as the test at a presentation hearing pursuant to s. 35(1) of the Child, Family and Community Service Act. The wording of the sections is similar and, in my view, the purpose is the same. The issue in both instances is not whether the child is in need of protection. The question, rather, is whether it would be in the best interests of the child for the Director to have interim custody of the child pending a protection hearing. Therefore, the decisive issue in this case is the degree or extent of the risk that S. will be harmed in some way defined in s. 13(1) of the Child, Family and Community Service Act if she is returned to her mother in the interim; see Director, Child, Family and Community Service Act v. H., 2008 BCSC 701, at paragraph 34.

[14]        To be clear, in my view, I am not required to grant interim custody to the Director where there is admissible evidence at the presentation hearing which if believed by the protection hearing judge could lead to a finding that a child is in need of protection. That is the test for whether or not a protection hearing should be ordered following a presentation hearing; see Director, Child, Family and Community Service Act v. H. at paragraph 39. At paragraph 40 of that decision, Justice Halfyard notes:

[15]        There is no issue that Ms. D. breached the supervision order when she permitted another adult who had not been approved of by the Director to supervise and care for S. However, if that were the only breach, it is my judgment that the risk to S. if she was returned to Ms. D. would not be of sufficient magnitude to require S. to be kept in care pending a protection hearing. That said, I have determined that Ms. D. breached the supervision order by exposing S. to the violent behaviour described in the Form A Report to Court. As previously noted, that portion of the report reads:

[16]        The Form A Report to Court states that the caller had heard ongoing conflict in the home, including verbal arguments, yelling, screaming, crying, and smashing sounds coming from the residence. This violates Term 11 of the supervision order, which says that Ms. D. must not expose the child to any violent behaviour, either physical or verbal, and she must immediately remove the child from any situation where conflict between any adults, including herself and the father, can potentially escalate to the point of violence.

[17]        It is my judgment that the portion of the Form A Report to Court that I read out (paragraph 3) constitutes admissible evidence which, if believed, could lead to a finding that S. is in need of protection and, consequently, I order that there should be a protection hearing following this presentation hearing.

[18]        With respect to whether S. should be kept in the interim custody of the Director, I find that on March 10, 2020, the Director had reasonable grounds for believing that S. was in need of protection, that Ms. D. had breached the supervision order, and that S. was in immediate danger because her mother was exposing her to the ongoing conflict described in the last paragraph of the Form A Report to Court, thereby exposing S. to violent behaviour. I am further satisfied that at the time of the presentation hearing, those concerns continued to exist because on March 1, 2020, S.'s parents became engaged. Mr. W. was and will continue to spend more time at Ms. D.'s home. Ms. W. is not prepared to work with the Director and there is an entrenched history of family violence.

[19]        That said, there is no question that Ms. D. has worked so very hard, and that is why S. was returned to her mother's care in January 2020. Ms. D. has and continues to abstain from drugs. She has worked with the social worker and the Family Preservation Worker. She had been attending for counselling. She had her own residence and a safety plan. She was not as committed in her relationship with Mr. W. Most importantly, she was being a protective parent.

[20]        Regrettably, I find that since January 2020 things have changed. Ms. D. and Mr. W. are now engaged. She told the social worker that they plan to move to Nanaimo. Pursuant to s. 13(1)(a)(ii), a child needs protection if a child is emotionally harmed by living in a situation where there is domestic violence towards a person with whom a child resides. S. is only 18 months old. She needs to be protected. She should not be exposed to family violence.

[21]        I know it is so very hard for Ms. D. to break the cycle of family violence, but this has to stop for S.'s wellbeing. I accept that S. will suffer and has suffered emotional harm because of the level of violence described in the Form A Report to Court. The January 7, 2020, supervision order terms were put in place to address the situation of Ms. D. having her own home and not being in as committed a relationship as she now is in with D. W.

[22]        The history of family violence is such that I have concluded that the risk to S. is of such a magnitude that S. must be kept in the interim care of the Director pending the protection hearing. Consequently, I make an interim order pursuant to s. 42.1(6)(a) that S. be in the custody of the Director pending the protection hearing.