IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           K.S. and C.B., are the biological parents of three children: J.B., who is eight years old, K.B. who is five [omitted for publication], and D.B., now three. K.S. and C.B. have been in a relationship for 18 years. They live in [omitted for publication], BC, a small rural community in the [omitted for publication], approximately [omitted for publication] from Williams Lake, BC. The Children’s paternal grandparents and maternal grandfather also reside in or near [omitted for publication]; their uncle and cousin live in the neighbouring community of [omitted for publication].

[2]           In the past four years, K.S. and C.B. began to experience some marital discord as a result of K.S. “partying a bit,” using alcohol and drugs, albeit not consistently and not in the presence of the Children. K.S.’s behaviour spawned two incidents of family violence which came to the attention of the Ministry of Child and Family Development (“MCFD”). The first incident occurred in or around June 2016, and the second in August 2019. MCFD social workers investigated the incidents, referred the parents to counselling, assisted them in formulating a family plan, and closed their file. There are no previous proceedings under the CFCSA involving the B. Children.

[3]           On February 27, 2020, while in the care of his maternal grandfather, D.B. was injured on an elliptical trainer exercise machine the grandfather kept in his living room. Initially, the attending physician suspected D.B. a victim of child abuse and notified the RCMP who engaged MCFD social workers. D.B. was transferred by air ambulance to the Child Protection Service Unit at the BC Children’s Hospital in Vancouver, BC for assessment. On February 28, 2020, the Director of Child, Family and Community Service (the “Director”) removed D.B., K.B., and J.B. from their parents’ care and placed them in a foster home in Williams Lake. On March 2, 2020, Dr. Michelle Clarke, a paediatrician with the Child Protection Service Unit, concluded that D.B.’s significant injuries were accidental, although she had a lingering question as to the origins of a facial bruise which the mother subsequently said occurred prior to the accident when D.B. was roughhousing with his sister. The Director refused to return the Children to their parents’ care, although neither were present at the time of D.B.’s accident. The Director now seeks interim custody of the Children on the basis they have been or will likely be physically harmed by their parents, either intentionally or through neglect.

[4]           This matter came before me on May 1 and 4, 2020, for a presentation hearing pursuant to s. 35 of the Child, Family and Community Service Act (the “CFCSA”). The Director seeks an interim order for custody of all the Children, which the parents oppose. The questions I have to decide are as follows:

[5]           At the presentation hearing, I received and considered the following materials:

[6]           Counsel provided the Court with the following case law:

[7]           I have also reviewed:

[8]           The parents’ affidavits, although filed, are unsworn. On April 15, 2020, as a result of the COVID-19 pandemic, the Chief Judge has advised the Provincial Court registries that material filed in support of urgent family hearings need not be sworn or affirmed. CFCSA presentation hearings are urgent. As the application judge I can attach whatever weight I consider appropriate to unsworn or unaffirmed documents. As the parents’ materials were prepared and filed by Ms. Renée Fougère, of the Williams Lake Parents Legal Centre, I am confident that she has taken care to impress upon the affiants the information contained in their affidavits must be true. Moreover K.S. and C.B. affirmed the truth of the contents of their affidavit at the presentation hearing after identifying any information they felt was inaccurate.

[9]           At the hearing I heard oral evidence from Trish Patterson, K.S., and C.B. and submissions of Ms. Atchinson, counsel for the Director and Ms. Fougère, counsel for K.S. and from C.B. on his own behalf. At the Pre-Trial Conference on April 23, 2020, Ms. Atchinson advised the Court she did not require the grandparents to attend the hearing to be cross-examined on their affidavits.

[10]        The affidavits filed by both parties were defective in various ways to varying degrees. In Kennedy, a decision which the Director’s counsel provided to the Court, Justice Ross discusses the improper content of affidavit evidence, which includes: (a) double hearsay or hearsay based on hearsay; (b) unidentified hearsay or unidentified witnesses; (c) inadmissible opinion; (d) irrelevance; (e) adjectival descriptions; (f) subjective descriptions of reaction; (g) opinions regarding motives; or (e) argument.

[11]        The affidavits filed by the parents contain subjective descriptions of reaction about the Director’s decision to remove the Children. Still, for the most part, these affidavits contain eye witness accounts of the events described. Also problematic is the Director’s sole affidavit filed in support of its application. The current social worker assigned to this matter is Patricia Patterson (“SW Patterson”). She became involved with the B. Children on April 3, 2020, which is 32 days after their removal. SW Patterson prepared an affidavit which is rife with hearsay, some of which is unidentified and some which is hearsay on hearsay or “double hearsay.”

[12]        A presentation hearing is an interlocutory summary process to be heard as soon as possible: s. 33.3 CFCSA. Section 68(2)(a) of the CFCSA permits the Court to admit any hearsay evidence the Court considers reliable and under s. 68(2)(b) any oral or written statement or report the Court considers relevant. As SW Patterson did not append original RCMP or MCFD records to her affidavit, the only document the Director produced which I can properly consider under s. 68(2)(b) is Dr. Clarke’s medical consultant report.

[13]        Double hearsay and unidentified hearsay are generally inadmissible, even in an interlocutory summary proceeding, even if not disputed by the opposing party: B.S.R. v. British Columbia (Child, Family and Community Service), 2016 BCSC 1369; Canadian Western Bank v 353806 B.C. Ltd., 2017 BCSC 1072 (CanLII). I have found a threshold level of reliability to much of the objectionable material in SW Patterson’s affidavit where it is corroborated by other witnesses or Dr. Clarke’s medical consultation report. Still, there are some statements in SW Patterson’s affidavit which are simply inadmissible, therefore not evidence.

[14]        At the conclusion of the hearing on May 4, 2020, I reserved my decision. These are my reasons for judgment. I apologize for their length and repetitiveness however, as is often the case, if I had more time, I would be briefer.

[15]        In my reasons, I will generally refer to the lay witnesses by their first names. In doing so, I mean no disrespect or undue familiarity. I do so in order to clearly distinguish them from each other given the similar surnames.

[16]        The respondents, K.S. and C.B., are the parents of three children: J.B., born [omitted for publication] (age 8), K.B., born [omitted for publication] (as of [omitted for publication], age 5), and D.B., born [omitted for publication], (age 3). I will refer to J.B., K.B., and D.B. collectively as “the Children.”

[17]        The B. family ordinarily resides in [omitted for publication], BC, a small rural community in the [omitted for publication], approximately [omitted for publication] from Williams Lake, BC. The Children’s paternal grandparents and maternal grandfather also reside in or near [omitted for publication]. C.B.’s parents, Mr. B.B and Mrs. C.B., live two kilometres away from where the Children ordinarily reside. K.S.’s father, Mr. M.S., lives one and one-half kilometres away. K.S. is Mr. M.S.’s only child and they are very close.

[18]        Mr. B.B, Mrs. C.B, and Mr. M.S. are supportive grandparents and very involved with C.B., K.S., and the Children. Prior to the Director removing the Children, Mr. B.B. and Mrs. C.B. saw K.S. and the Children several times per week.

[19]        C.B. and K.S. describe their children as very active, “always running, roughhousing and playing.” Unlike many children, J.B., K.B., and D.B. are not permitted to spend hours each day sitting inside playing electronic games.

[20]        C.B. works in the mining industry. Up until the end of May 2019, he worked for [omitted for publication] mines in the [omitted for publication]. At the end of November 2019, he began working for [omitted for publication], which operates a remote dry mining camp in the Yukon on a rotating shift. Until recently, his shifts were two weeks on and two weeks off. In response to the COVID-19 pandemic, C.B.’s shifts are now four weeks on with four weeks off, two of which have to be spent in social isolation.

[21]        C.B. has the option of suspending his employment until such time as his employer can reinstate the two week on / two week off shifts. Although he is the only breadwinner for his family, C.B. says he will elect to suspend his employment if that is what must be done to secure the Children’s return to the parents’ care.

[22]        C.B. rarely drinks alcohol and does not use drugs. His employer enforces its abstention rules with mandatory drug testing.

[23]        K.S. does not drive and has to rely on others for transportation.

[24]        Four years ago K.S. and C.B. began to experience marital difficulties arising from K.S. “going out and doing drugs and drinking alcohol on weekends.” C.B. disapproved of her behaviour for obvious reasons, including the fact they could not afford this lifestyle. On one occasion, when K.S. withdrew money from their bank account to purchase some drugs (cocaine), C.B. became angry and slapped her while they were sitting in their vehicle with their children (J.B. and K.B.). C.B. and K.S. agree this was the first and last incidence of family violence C.B. visited upon K.S. or witnessed by the Children.

[25]        K.S. told her father about the incident who reported it to the Royal Canadian Mounted Police (“RCMP”). The RCMP, in turn reported the incident to the the Director. The assigned social worker referred C.B. and K.S. and the Children to counselling and closed its file. No criminal charges were laid as a result of this incident.

[26]        In the early summer of 2019, C.B. and K.S. separated. C.B., who was not working at the time, remained in the family home with the Children. K.S. lived in a trailer a few hundred meters away. They remained amicable and continued to co-parent the Children.

[27]        In August 2019, C.B. found what he thought was some crystal methamphetamine in K.S.’s purse. He and K.S. became embroiled in a heated argument over her having the drug. K.S. picked up a knife and told C.B. to “get out of my face.” C.B. took the knife from her and took the Children (who were playing outside) to his parents’ residence. C.B. reported the incident to the police who arrested K.S. and took her to the Cariboo Memorial hospital in Williams Lake for a psychological assessment. The psychiatrist determined K.S. was not unstable and she was not detained under the Mental Health Act, but did have to spend the night in jail. This incident came to the attention of MCFD. K.S. met with the social workers. She consented to drug screen tests, regular meetings with her doctor, and the extended family agreed to care for the Children if K.S. needed a break or support. The Children were not present during this incident and no criminal charges were ever laid against K.S. Also, C.B. was between jobs and also a full-time caregiver.

[28]        The family plan which K.S. entered into with MCFD included Mr. B.B and Mrs. C.B., and Mr. M.S. who agreed to provide respite child care if K.S. needed a break.

[29]        K.S. maintains she has not used any non-prescription drugs since this incident and has voluntarily provided clean drug screen tests verifying her continued abstinence. Some of K.S.’s drug screen tests are attached as Exhibit “B” to her April 21, 2020 affidavit. K.S. also receives counselling services from Gail Zowly, a Mental Health and Substance Use Clinician in the employ of Interior Health: see Exhibit “C” to K.S.’s Affidavit.

[30]        On Thursday, February 27, 2020, the two younger Children were in the care of their grandfather Mr. M.S., at his home in [omitted for publication]. K.S. had gone to the bus stop to pick up J.B. after school. K.B. was playing on Mr. M.S.’s exercise machine (an elliptical trainer) which is in his living room, and D.B. was sitting on a stool nearby. Mr. M.S. heard D.B. cry out. Mr. M.S. turned around to see that D.B. had been injured. D.B. jammed his leg between a bar and the exercise machine and then fell backwards. Mr. M.S. attached to his affidavit a photograph of the exercise machine and placed a pool noodle in the area of where D.B.’s leg was jammed.

[31]        Mr. M.S. placed D.B. on the couch to stabilize him, then called Mrs. C.B. for assistance. As Mrs. C.B. was ill, Mr. B.B. came to Mr. M.S.’s house. Mr. B.B. arrived within five minutes and called the ambulance. Mr. M.S. says the [omitted for publication] first responders arrived 30 minutes after they were called and the Williams Lake ambulance arrived one hour after they were called.

[32]        Mr. M.S. also called K.S. and told her about the D.B.’s accident. K.S. arrived before the ambulance. She could see D.B.’s leg was clearly broken. Both K.S. and Mr. M.S. were panicking and distraught so Mr. B.B. took control of the situation.

[33]        Initially K.S. went with D.B. in the ambulance, but when the attendants told her they would likely transfer D.B. to Vancouver, Kamloops, or Kelowna, K.S. asked they return to Mr. M.S.’s house so she could go to the hospital with her father and daughters. At this point, the ambulance was only five minutes away from Mr. M.S.’s residence. Mr. M.S. drove K.S., J.B., and K.B. to the Cariboo Memorial hospital following closely behind the ambulance.

[34]        When he arrived at the hospital, D.B. was assessed by the emergency room physician, Dr. Caroline Walker. Dr. Walker had concerns D.B.’s injuries were not accidental and notified the RCMP who notified MCFD.

[35]        Corporal Nakatsu attended the hospital on behalf of the Williams Lake RCMP detachment and Team Leader Jennifer Bates attended on behalf of MCFD. While K.S. and Mr. M.S. were at the hospital Corporal Nakatsu and TL Bates accused them of being under the influence of drugs or alcohol, which they both denied. K.S. asked to be drug tested to prove her sobriety, but this did not occur.

[36]        D.B. was treated at Cariboo Memorial hospital and then sent by air ambulance to the Child Protection Service Unit at BC Children’s Hospital for further evaluation. On February 29, 2020, paediatrician, Dr. Michelle Clarke examined D.B. Upon further consultation with the RCMP and MCFD social workers, Dr. Michelle Clarke concluded D.B.’s significant injuries were consistent with the report that he had fallen on the exercise equipment. In other words, his injuries were accidental.

[37]        On March 2, 2020, Dr. Clarke provided an oral report of her findings to Williams Lake Constable K.S. Jakobaski, MCFD social worker Susanne Nelson, and MCFD Team Leader Jolene Brolund. Dr. Clarke also provided a written medical consultation report which the Williams Lake MCFD received on March 27, 2020, and attached as an exhibit to SW Patterson’s and K.S.’s affidavits.

[38]        Dr. Clarke states in her report the RCMP Constable had interviewed D.B.’s grandfather and sisters over the weekend. Dr. Clarke learned that D.B. and K.B. were playing on “a piece of exercise equipment with pedals and moving bars.” K.B. was on the exercise equipment pedalling very fast and playing with the buttons. Mr. M.S. was in another room washing his hands. D.B. was sitting on a purple stool next to the machine. D.B. somehow got his leg crunched between a bar and the machine and fell backward. K.B. also told the officer that she and D.B. fight a lot.

[39]        Dr. Clarke describes D.B. as “well-grown.” As to the provenance of D.B.’s injuries, she writes in her report:

[40]        Dr. Clarke went on to say that the medical team had not arranged for any follow-up of D.B. but she would be happy to answer any further questions or concerns as they arise. I have not been made aware of any further communications with Dr. Clarke with respect to this matter by the social workers, police, or the parents.

[41]        K.S. explained that D.B. sustained the bruise on the side of his face prior to February 27, 2020. She says D.B. was running down the hall looking backwards at his sister who was chasing him. He ran into the door jamb and bruised his cheek.

[42]        At 6:00 a.m. on February 28, 2020, C.B. learned from his brother, Mr. D.B., over social media, that D.B. had been injured. C.B. immediately caught a flight home and arrived in Kamloops later that day.

[43]        Meanwhile at 10:00 a.m. on February 28, 2020, the Director removed all the Children from C.B. and K.S.’s care and placed them in foster care with A.H. and B.H. in Williams Lake, BC. The H.s were strangers to the Children. Moreover, because the H.s lived in Williams Lake, J.B. had to be removed from her school in [omitted for publication].

[44]        While at the hospital, K.S. provided SW Bates with consents to speak to Dr. Walker about D.B. and to have J.B. and K.B. medically examined. Dr. Walker conducted a medical exam of the two girls and found “nothing remarkable”: see Presentation Form, paras. 16 and 23. Both K.S. and Mr. M.S. provided statements to the RCMP and SW Bates on the evening of February 27, 2020.

[45]        There were no criminal charges laid as a result of the D.B.’s accident.

[46]        The MCFD social workers asked and received K.S.’s permission to remove the Children for the night so they could facilitate D.B.’s medical treatment and question the girls. K.S. understood the Children would be returned the following day. This did not happen. The next day a social worker called K.S. and asked her for the Children’s health care card numbers. At that point K.S. realized MCFD was not going to return the Children. No one would tell her where the Children were or with whom they were living.

[47]        The Children were interviewed by both the RCMP and MCFD social workers. In her oral evidence SW Patterson said the results of those interviews did not support the Directors’ application for removal or interim custody of the Children.

[48]        When C.B. returned from camp he too was unable to obtain any information about the Children. He called MCFD but no one would tell him the Children’s whereabouts or why he could not go and get them.

[49]        In the afternoon of March 2, 2020, K.S. and C.B. met with SW Nelson. Even though the police and Child Protection Service Unit have determined D.B.’s significant injuries were accidental, MCFD refused to return the Children to the parents’ care and highly restricted their access. C.B. does not recall, and SW Patterson’s affidavit does indicate, that SW Nelson or anyone from MCFD, let the parents know Dr. Clarke had ruled D.B. substantive injuries were accidental.

[50]        On March 3, 2020, Team Leader Keri Trinder accompanied D.B. back to Williams Lake from the BC Children’s hospital. She placed him with J.B. and K.B. in the foster home of A.H. and B.H.

[51]        K.S. took drug screen tests at the [omitted for publication] Medical Clinic and provided copies to MCFD. She also consented to MCFD social workers obtaining this information directly from the clinic. K.S.’s drug screen tests taken since September 12, 2019, are attached as Exhibit “B” to her affidavit.

[52]        In order to obtain drug screen tests, K.S. had to travel to Williams Lake, which takes the better part of the day. Because she doesn’t drive, she had to arrange for a friend or family member to transport her.

[53]        Commencing March 3, 2020, K.S. and C.B. were permitted one hour visits with the Children at the Williams Lake MCFD offices. After a week or two these were expanded to include access for three to four hours per day in the community but the parents were prohibited from bringing the Children home to [omitted for publication].

[54]        K.S. and C.B. ask MCFD for a list of concerns and why the Children were not returned to their care. SW Monika Sadja agreed to provide such a list but did not do so before C.B. had to return to his job in the Yukon two or three weeks later.

[55]        On March 2, 2020, Mrs. C.B. contacted MCFD and offered to care for the Children. Mrs. C.B. had been a homecare worker for 28 years until she retired in the summer of 2019. She was also one of the persons who provided respite care to K.S. under the family plan invoked in the fall of 2019. No social worker would give her any information about the Children but did advise her she would need to get a criminal record check. Mrs. C.B. also provided MCFD with references.

[56]        Mrs. C.B. called MCFD on numerous occasions to see if the social workers had completed her criminal record check or consulted with her references. SW Sadja, the social worker with whom she was dealing, refused to return her calls. After three weeks Mrs. C.B. drove to the Williams Lake RCMP detachment to conduct her own criminal record check. Mrs. C.B. says that although she was in the office SW Sadja refused to see her, but did call once Mrs. C.B. was in the MCFD parking lot.

[57]        On March 24, 2020, MCFD placed the Children in Mrs. C.B. and Mr. B.B.’s care. SW Sadja delivered the Children to Mrs. C.B. and Mr. B.B.’s residence. She advised Mrs. C.B. the parents were not allowed to visit the Children more than four hours per day, and their access had to be supervised at all times. SW Sadja also advised Mrs. C.B. the Children were not allowed to go to their parents’ home.

[58]        On April 3, 2020, after receiving a positive report from Mrs. C.B. about K.S.’s visits with the Children, TL Trinder extended the parents’ access to the Children from four to eight hours per day. Still, the parents’ access had to be continually supervised.

[59]        Since the Director removed the Children there have been seven social workers assigned to this matter including: (a) Team leader Jennifer Bates; (b) Social Worker Susanne Nelson; (c) Social Worker Monika Sadja; (d) Team Leader Jolene Brolund; (e) Team Leader Trinder; (f) Social Worker Jacquelyn Wise; and (g) Social Worker Trish Patterson. None of the social workers involved in removing the Children testified at the presentation hearing.

[60]        The parents and grandparents say the Children have been traumatized by their removal and placement in a foster home. The parents are clearly frustrated at the number of social workers involved in this matter and MCFD’s lack of timely response to their questions or concerns. It must be noted, however, that two weeks after removing the Children, the Province declared a state of emergency as a result of the COVID-19 pandemic.

[61]        In the Presentation Report filed on March 3, 2020, the Director’s delegate, SW Susanne Nelson states at para. 29:

[62]        In her affidavit of April 17, 2020, SW Patterson says at para. 13:

[63]        In paragraph 15 of her affidavit, SW Patterson says that SW Susanne Nelson was assigned the file on March 2, 2020. She met with K.S. and C.B. and identified the following concerns that led to the removal of the Children:

[64]        On March 5, 2020, SW Nelson met with parents again and told them MCFD’s protection concerns for the Children included general neglect, lack of supervision, substance misuse, the parent’s relationship issues, and K.S.’s grief over the death of her mother.

[65]        SW Nelson, in her Presentation Report attributes the Children’s removal to the significance of D.B.’s injuries, his need for medical transport and the seriousness of the allegations with no plausible explanation. SW Nelson’s only reference to any other issues is in the first two paragraphs of the section setting out the circumstances that caused the Director to remove the Children (the “Circumstances”):

[66]        In my view the reason the Director removed the Children from C.B. and K.S.’s care was as SW Nelson indicates in the concluding para. 29 of the Circumstances.

[67]        Although on March 2, 2020, SW Nelson learned Dr. Clarke had determined D.B.’s more significant injuries were accidental, on March 3, 2020, she filed in court the Presentation Report omitting this vital information. SW Nelson also omitted the fact that K.S. was not present at the time of the accident.

[68]        Since receiving Dr. Clarke’s report, the Director has re-envisioned the reasons for the Children’s removal, although the Presentation Form remains unchanged. Nevertheless, I will address the Director’s “enhanced reasons” for removing the Children.

[69]        In her April 17, 2020 affidavit, SW Patterson says there has been a history of the Director’s involvement with the parents dating back to 2016 pertaining to the Children. SW Patterson references five MCFD file entries concerning the B. family:

[70]        K.S. and C.B. acknowledge two incidents of family violence, one in 2016, when C.B. slapped K.S. in the vehicle, and the second in August 2019, when K.S. was holding a knife while arguing with C.B. The Children were only present at the time of the 2016 incident. K.S., C.B., Mr. B.B., Mrs. C.B., and Mr. M.S. all deny observing K.S. under the influence of drugs or alcohol while caring for the Children. The parents deny neglecting the Children or leaving them in a vehicle overnight or K.S. using drugs or alcohol when she was pregnant (Incident #1). C.B. doesn’t use drugs and rarely drinks alcohol (Incident #1). Neither parent has any knowledge of the reports made in April 2019 (Incident #3) nor July 2019 (Incident #4). Both C.B. and K.S. say she only started using substances in August 2019.

[71]        With respect to Incident #5, which occurred in August 2019, K.S. says she was under the influence of drugs and alcohol at the time. She was not holding a knife when C.B. returned from dropping the Children off at their grandparents’ home and she was not suicidal. C.B. agrees K.S. was not threatening suicide but recalls her holding a knife. C.B. called the police because he wanted K.S. thrown in jail to scare her. The RCMP took K.S. to the hospital where she underwent a psychological assessment. K.S. was not detained under the Mental Health Act and not diagnosed as suffering from any mental illness. The psychiatrist said K.S. was not mentally unstable and discharged her to the RCMP who took her to the detachment, lodged her in the cells for the evening, and released her the following morning. K.S. maintains that since that experience, she has been clean and sober and taking counselling.

[72]        In her Presentation Report to Court SW Nelson states at para. 22, that SW Bates told K.S. at the hospital on the evening of February 27, 2020, “her file was closed, and has been for some time.” Nevertheless, since Dr. Clarke ruled D.B.’s significant injuries accidental, Incidents #1 to #5, have been resurrected and revitalized to justify the Children’s removal. I will address each in turn.

[73]        At the time of the accident, D.B. and K.B. were in the care of their maternal grandfather while K.S. was picking up J.B. at the bus stop after school. When D.B. was injured, Mr. M.S. immediately called Mrs. C.B. and Mr. B.B. and K.S. Mr. B.B. came at once and called the Williams Lake ambulance. K.S. arrived shortly thereafter. Although Mr. M.S. ought to have supervised K.B. and D.B. a little more closely when they were on or around the exercise machine, it is not clear to me how this accident rendered the Children’s parents and paternal grandparents, none of whom were present at the time, inappropriate caregivers.

[74]        There is no evidence to suggest Mr. M.S. was not ordinarily an appropriate caregiver. Mr. M.S. says that prior to the accident he spent a lot of time with K.S. and her Children. He is extremely sorry D.B. fell and broke his leg while in his care and that he was very upset his grandchildren were apprehended because of it. He says, “It had nothing to do with neglect or abuse. I love those children dearly and my heart is broken they have not been returned to their parents’ care.”

[75]        Mr. M.S., like Mrs. C.B., was part of the “family plan” created in August 2019. The Children have been with Mr. B.B. and Mrs. C.B. since March 24, 2020, and they supervise K.S. and C.B.’s access to the Children. They speak positively of K.S. and C.B.’s parenting of the Children, they deny having witnessed either K.S. or C.B. neglect or abuse the Children and state specifically they had not seen K.S. under the influence of alcohol or drugs in the presence of the Children. In her affidavit SW Patterson (at para. 16) states on March 3, 2020, SW Nelson “began the process of screening the paternal grandparents of the B. children, Mrs. C.B. and Mr. B.B., in order to assess their home for placement of the children.”

[76]        K.S. said a few days after the Director removed the Children, she provided SW Monika Sadja with the names of four persons (S.P. and A.P., D.M., and N.B.) who, in addition to C.B., Mr. M.S., Mrs. C.B., and Mr. B.B., could attest to her and C.B.’s parenting capacity. K.S. and C.B. have recently inquired with these references, who say they have never been contacted by MCFD social workers.

[77]        Except for Mr. M.S.’s moment of inattention at the time of D.B.’s accident, the Director has not provided any evidence the Children lacked supervision or appropriate caregivers.

[78]        I cannot find anywhere in Dr. Clarke’s medical report a reference to “bruises in various stages of healing” all over D.B.’s body. Certainly she describes bruising, but in the end opines they could have been sustained at the time of the accident. The most concerning comment from Dr. Clarke was her statement, “It will be important for investigators to determine whether the facial bruises were present prior to this accident or not.”

[79]        At para. 17 of her affidavit SW Patterson describes a meeting TL Brolund and SW Nelson had with Dr. Clarke on March 2, 2020. SW Patterson writes that Dr. Clarke told TL Brolund and SW Nelson that D.B.’s broken leg was consistent with the story presented and ruled it accidental. Dr. Clarke confirms in her medical report she presented the social workers with her opinion orally on March 2, 2020. What I do not accept as admissible evidence is SW Patterson following comments :

[80]        This information was not contained in Dr. Clarke’s written medical report and SW Patterson was not present at the March 2, 2020 meeting. Having said that, K.S. did address Dr. Clarke’s concern to bruising on the left side of D.B.’s face. K.S. said D.B. sustained the bruise before the accident when he ran into a door jamb while running away from his sister who was chasing him. K.S. says she has no idea how D.B. bruised his finger.

[81]        The Director has had two months since the Children’s removal and in that time neither sought nor obtained any further medical evidence with respect to the bruise on D.B.’s face or finger. Although Dr. Clarke invited further consultation if required, there is no evidence anyone on behalf of the Director asked her to opine on the plausibility of K.S.’s explanation for D.B.’s facial bruise. It is noteworthy that Dr. Walker had examined J.B. and K.B. on December 27, 2020, and found “nothing remarkable.”

[82]        Dr. E. of the [omitted for publication] Medical Centre has been K.S. and the Children’s family doctor for the past eight years. He provided a medical certificate in which he states:

[83]        K.S. gave this letter to SW Patterson on April 21, 2020. SW Patterson says she has concerns about what Dr. E. means “until now” she hasn’t seen any signs of child abuse or neglect. It is clear to me by the placement of the comma Dr. E. means she has seen the Children in the past up until the present day and has not seen signs of any abuse or neglect. If SW Patterson or anyone else at MCFD were genuinely confused as to what she meant I would expect they would have simply called Dr. E. and asked for clarification. No one at MCFD has done so. I pause to mention that ss. 13 and 14 of the CFCSA, compels any person who has reason to believe that a child is in need of protection under must promptly report the matter to a Director. This includes physicians, which is likely why Dr. Walker contacted the RCMP to voice her concerns that D.B.’s injuries appeared non-accidental. SW Patterson has not suggested Dr. E. made any such report.

[84]        In her affidavit, when recounting SW Nelson’s meeting with the parents on March 2, 2020, SW Patterson states:

[85]        At that time, SW Nelson would have known that much of the bruising on D.B.’s body was sustained in his accident. The Director seems dismissive of K.S. and C.B.’s explanation that D.B., K.B., and J.B. are rough and tumble children, even though K.B. told the RCMP officers she always fights with D.B. In the absence of any contradicting evidence, I see no reason to reject K.S. and C.B.’s depiction of their Children’s activity level. In fact in para. 28 of her April 17, 2020 affidavit, SW Patterson notes K.S. mentioning D.B. may need his leg reset because he was walking around too much on his cast.

[86]        I find the Director has no admissible evidence that any of D.B.’s injuries were the result of child abuse or that any of the Children have been physically harmed by the parents before or after their removal.

[87]        According to SW Nelson, both K.S. and Mr. M.S. told the police and SW Bates D.B. sustained the injuries on the elliptical trainer while at Mr. M.S.’s house. I am mystified as to what constitutes the inconsistency. It bears repeating that K.S. was not present at the time of the injury. Her absence is corroborated by Mr. M.S., Mr. B.B., J.B., and K.B. Accordingly, K.S. could not have known the precise details of what happened. Mr. M.S. was in another room. He only saw what had happened after hearing D.B. cry out. When the police interviewed K.B. she said Mr. M.S. was in another room washing his hands when D.B. “somehow got his leg crunched between the bar of the machine and fell backward.” When he was interviewed, Mr. M.S. consistently said that K.B. and D.B. were playing on the exercise machine. K.S. writes in her affidavit (at para. 28), that Dr. Caroline Walker drafted a report stating the child had fallen on an exercise bicycle.

[88]        In para. 10 of her affidavit SW Patterson states that Paramedic B.R. expressed concern that K.S.’s explanation for D.B.’s broken leg “was provided in three different versions.” SW Patterson does not say to whom Paramedic B.R. made this statement. Certainly, it was not to SW Patterson who wasn’t at the hospital or even involved in this matter at the time. The Director has neither put into evidence the BC Ambulance Report nor particularized these “three different versions.” According to Dr. Clarke, SW Nelson told her that K.S. had not been at the grandfather’s home when the accident occurred. If K.S.’s inconsistent versions of the accident was a significant factor in the Director’s decision to remove the Children, I would have expected the Director to put before the Court admissible evidence. Instead the Court was given double hearsay of a conclusionary remark without the underpinning details.

[89]        I am not satisfied the Director has adduced any admissible evidence of K.S. providing inconsistent statements as to how the accident occurred and even if she had, I do not see how it has or could cause physical harm to the Children.

[90]        I glean from the Form “A” report, K.S.’s erratic behaviour on the evening of February 27, 2020, consisted of:

[91]        K.S. says that upon finding D.B. injured on February 27, 2020, she was distraught and not thinking clearly. She states:

[92]        Mr. B.B. confirms that when K.S. saw D.B.’s broken leg she appeared “emotionally distraught.” The Presentation Report states that SW Bates met with K.S. in the waiting room at the hospital. At 1:15 a.m. she presented as much more coherent and agreed to an overnight Voluntary Care agreement for the Children.

[93]        I accept that K.S. was behaving “erratically,” but she just learned her three-year-old son was badly injured and she was suspected of abusing him. I am prepared to take judicial notice that people under acute stress can also behave erratically. In any event, it is not clear to me how this erratic behaviour physically harmed or was likely to physically harm the Children.

[94]        K.S. admits to using cocaine and alcohol in June 2016, which gave rise to the first incident of family violence. She also admits to using alcohol about twice a week in August 2019. The only drug she used besides alcohol was methamphetamines and that was only once at the time of the second incident of family violence in August 2019.

[95]        On February 27, 2020, K.S. denied being under the influence of drugs and offered to take a drug test which was never done. All the drug tests K.S. did provide since September 2019, were clean. Her drug tests of March 3, 2020, tested negative for amphetamines, benzodiazepines, cocaine, and opiates.

[96]        After the August 2019 incident, K.S. was prescribed anti-anxiety drugs but weaned herself off of those drugs long before D.B.’s accident.

[97]        Because they live close to them, Mr. B.B. and Mrs. C.B. would see K.S. often and unexpectedly. Mr. B.B. and Mrs. C.B. acknowledge that last year, K.S. did go out “partying” a bit, however, they never observed her under the influence of alcohol or drugs while in the presence of the Children.

[98]        In SW Nelson’s Presentation Report, she states at para. 22 that SW Bates saw Mr. M.S. stumble backwards and nearly fall into the garbage and then observed him holding on the bed rail to steady himself. Mr. M.S. says he did fall when he leaned on a table with rollers. The table moved and he lost his footing and fell. Mr. M.S. told the social worker he had smoked a marijuana cigarette earlier that day, but was “not under the influence” at the hospital.

[99]        With respect to Mr. M.S. and K.S.’s suspected drug consumption on February 27, 2020, the Director has adduced hearsay opinion evidence of unqualified experts. Nevertheless, side stepping the obvious issues of admissibility and reliability, the Director has no other evidence whatsoever that K.S. was consuming street drugs or alcohol since MCFD closed its file on the August 2019 incident (Incident #5). SW Bates view that K.S. was under the influence of a non-alcoholic intoxicating substance on February 27, 2020, is the only incident of its kind. As with K.S.’s explanation for the bruise on D.B.’s face, the Director seems to be entirely dismissive of her contradicting evidence that she was not on any intoxicating substance, but simply extremely distraught. K.S.’s assertion that she had been prescribed anti-anxiety drugs in the fall of 2019 and in March 2020, after the Children’s removal is not in dispute.

[100]     K.S. has been making her way to Williams Lake Atwood Medical Clinic to take drug tests from September 2019 until March 2020. K.S. stopped drug testing when SW Sadja told her she no longer had to do so given the COVID-19 crisis. K.S. provided the Director with her written consent to obtain these tests results directly from the clinic and SW Nelson acknowledges to K.S. she had received one or more of the tests.

[101]     I do not accept the Director has adduced persuasive evidence that K.S. was using non-prescription drugs since it closed its files in August 2019. As to Mr. M.S. consuming a marijuana cigarette, it is now legal and marginally relevant to the issues before the Court.

[102]     C.B. ordinarily works in a remote camp in the Yukon. Yet, as soon as heard of D.B.’s accident, he flew home. He tried immediately to get in touch with MCFD and on March 2, 2020, met with TL Brolund and SW Nelson.

[103]     Although C.B. had nothing whatsoever to do with the accident which precipitated the Children’s removal, the Director has severely restricted his access. C.B. and K.S. went to live with Mr. D.B. and his family in [omitted for publication] so they would be closer to the Children who were now living in a foster home in Williams Lake. The parents took advantage of such access to the Children the Director would permit.

[104]     C.B. says he works hard to support his family and make sure the Children are doing well. He regards both K.S. and himself as loving and nurturing parents and would not leave the Children in K.S.’s care if he did not think she was able to parent them. C.B. maintains that if he had any concerns regarding K.S.’s parenting he would get a local, lower paying job so he could care for the Children.

[105]     C.B. continues to work in the Yukon camp. He has limited cell service and it is difficult for him to make or receive calls. Still, he speaks to his family every night. Although self-represented he has actively participated in this Presentation Hearing.

[106]     I accept that C.B. is limited in what support he can provide to K.S. while working, however, she has the benefit of an extended family who are ready and willing to assist her. This is affirmed by the fact the Director has placed the Children in Mr. B.B. and Mrs. C.B.’s care.

[107]     Section 2 of the CFCSA sets out the guiding principles for its interpretation and administration. It states, in part:

[108]     The Director removed the Children pursuant to s. 30(1) and 30(1)(b) of the CFCSA which states:

[109]     The Director says that pursuant to s. 13(1) (a) and (d), the Children need protection because they have been or are likely to be, physically harmed by their parents or the Children have been, or are likely to be, physically harmed because of neglect by their parents.

[110]     The Director maintains that there were no less disruptive measures short of removal that was available as adequate to protect Children because of the severity of D.B.’s injuries and “the inconsistent story and medical opinion.”

[111]     At the presentation stage of the proceedings I must first determine under s. 30(1) of the CFCSA the Director had reasonable grounds to believe the Children needed protection. I need not determine whether the Children were actually in need of protection but whether there is some evidence, which, if believed, could result in a finding they were. I must take the Director’s case at its highest and resolve any factual disputes in the Director’s favour unless the facts presented by the Director are manifestly wrong, untrue, or unlikely to have occurred”: B.B. v. British Columbia (Director of Family, Child and Community Services), 2005 BCCA 46.

[112]     The Director has to establish a real risk of harm to the Children, which is a “much lower” standard than a balance of probabilities. As the presentation hearing judge, my duty is to scrutinize the Director’s actions to ensure they were appropriate, made in good faith, the least intrusive, and based on evidence which, at the very least, is capable of being believed. The paramount concern of the presentation hearing is the protection of the child. However, as set out in the Director v. C.P. and R.L., 2015 BCPC 360, at para. 81, the presentation hearing is designed to ensure that Children are not removed arbitrarily and that the removal was necessary based on s. 30 of the Act. A judge at a presentation hearing is not a passive bureaucrat tasked with rubber stamping any removal the Director presents to the Court. Such a role would run contrary to the spirit of s. 2 of the CFCSA, which contemplates a family is the best environment for children and that families are to be supported.

[113]     What is the evidence supporting the Director’s claim the Children have been or were likely to be physically harmed by the child’s parent either intentionally or passively through neglect? D.B. was the only child showing any sign of physical injury. Given K.S. and Mr. M.S.’s interaction with the RCMP and SW Bates on the evening of February 27, 2020, the Director knew that neither K.S. nor C.B. were present at the time of the accident. K.S. told CW Bates that C.B. was in camp. Still, the social workers were presented with a badly injured three-year-old boy in the hospital. The emergency room doctor was sufficiently concerned the injuries were non-accidental she reported the matter to the police and had D.B. transferred by air ambulance to the Child Protection Service Unit of the BC Children’s Hospital in Vancouver, BC. This is corroborated by K.S. in para. 15 of her affidavit, who states, “On February 28, 2020, Dr. Caroline Walker drafted a report that D.B.’s fracture was a result of child abuse.”

[114]     I am satisfied at the time of the removal, namely February 28, 2020, the Director had reasonable grounds to believe the Children were in need of protection based on Dr. Walker’s opinion. However, it is now May 6, 2020, and the Director has not returned the Children to their parents although there has been a sea change of information within days of the Children’s removal.

[115]     On March 2, 2020, the day the Director filed the Presentation Report, the police concluded their investigations into how the accident occurred and Dr. Clarke determined D.B.’s substantive injuries were accidental. Dr. Clarke advised the social workers of her findings on March 2, 2020. Nevertheless, the following day, on March 3, 2020, the Director filed a Presentation Report omitting this crucial information. Also omitted was the significant fact that K.S. was not present at Mr. M.S.’s house at the time of the accident.

[116]     This is a unique case because the grounds which justified the Director removing the Children on February 28, 2020, no longer existed on March 2, 2020. In my view, when Dr. Clarke informed the Director D.B.’s substantive injuries were accidental, the Director had no justification for continuing to keep the Children in foster care. I cannot accept the historical incidents where the Director took no action or otherwise resolved the protection concerns can be resuscitated to justify an interim custody order long after the file was closed.

[117]     When the Director removed the Children, D.B. was at the BC Children’s Hospital. The Director had a number of options short of removal to ensure the Children’s safety while the Child Protection Service Unit and the RCMP concluded their investigations. It was only three days after his removal when Dr. Clarke determined D.B.’s substantive injuries were accidental. Although Dr. Clarke had wondered about the bruising on the left side of D.B.’s face, the Director has taken no further steps to have D.B. further medically assessed. K.S.’s explanation as to the origins of that bruise is uncontested.

[118]     On February 27, 2020, K.S. consented to a Voluntary Care Agreement placing the Children in foster care overnight. Throughout the evening she had cooperated with the medical staff, social workers, and police. She talked to the police, she agreed to Dr. Walker examining the girls, she consented to the social worker speaking to the doctor, and offered to take a drug test. K.S. agreed to the Voluntary Care Agreement so the social workers could question the girls and facilitate D.B.’s medical treatment. There is no reason to believe K.S. would not continue to cooperate with MCFD until the investigation had concluded.

[119]      Part 2 of the CFCSA provides the Director with a variety of service options, which include: (a) a safety plan setting out how the Children will be cared for during a child protection investigation; (b) a family plan setting out how the Children’s needs will be met while MCFD is involved with the family; (c) support service agreement setting out services K.S. might need to help her care for the Children; (d) the voluntary care agreement permitting the Children to be in foster care for a limited time; (e) an extended family program agreement placing the Children in the care of a friend or family member for a limited time.

[120]     In the Presentation Report, the Director says:

[121]     The Presentation Report was filed on March 3, 2020. At that time the Director knew the Child Protection Service Unit had determined D.B.’s injuries were accidental. The Director has proffered no admissible evidence of an “inconsistent story” and even so, by March 3, 2020, the RCMP had interviewed K.B. and learned D.B. fell on the exercise machine while she was pedalling and Mr. M.S. was washing his hands in another room.

[122]     In this regard, I have not heard a satisfactory explanation as to why the Director’s interim protection concerns could not be addressed by either C.B. or his parents filling the role of primary care giver. I do not accept the Children had to be placed in a foster home with strangers who live [omitted for publication] from their home community for one month before they could be placed with Mr. B.B. and Mrs. C.B.

[123]     I am not persuaded the removal of the Children from both parents was the least disruptive available measure to adequately protect the Children. The Director has not identified any significant or pressing concerns about C.B.’s parenting skills. He does not drink or use drugs. Although he works in remote camps, he has the support of his parents who are willing, appropriate, and loving caregivers. Moreover, C.B. says that if necessary, he will get a job locally.

[124]     Even if the circumstances warranted the Children’s removal on February 28, 2020, they had changed markedly by March 2, 2020, when the Director learned D.B.’s substantive injuries were accidental and C.B. had returned from his camp and was available to care for his family.

[125]     Section 33 permits the Director to return the Children before an order is made at the presentation hearing in certain circumstances. It states:

[126]     In her April 17, 2020 affidavit, SW Patterson states at para. 7 that on April 8, 2020, K.S. called TL Trinder and asked why the Children were still in the Director’s care. TL Trinder told her “MCFD was still assessing whether substance use is an issue” in her life. The Director has no evidence of K.S. using street drugs since August 2019. The Director seeks to rely on Constable Nakatsu and TL Bates’ observations of K.S. on the evening of February 27, 2020. Even if I were to accept their suspicions she was on some “substance,” it does not mean K.S. was using non-prescription drugs. As to prescription drugs, SW Nelson purportedly told K.S., “she needed to continue her Dr. prescribed medication until Dr. E. advises otherwise” (SW Patterson’s affidavit, para. 19).

[127]     On April 15, 2020, K.S. asked SW Patterson why the Children could not be returned. SW Patterson said that C.B. needed to attend counselling and K.S. needed to attend the “Confident Parent, Thriving Kids program.” K.S. agreed to speak to Dr. E. about the following day. K.S. also signed consents for SW Patterson to speak to her Mental Health and Substance Use Counsellor, Gail Zowty. Ms. Zowty provided a report on April 17, 2020, which is attached as Exhibit “C” to K.S.’s affidavit.

[128]     In paragraphs 31, SW Patterson sets out the new goal posts the parents have to reach before the Director will consider the child protection concerns mitigated:

[129]     Finally C.B. and K.S. must work with the Director to complete a family plan (which may include extended family) that ensures the Children are supervised by a clean and sober caregiver at all times, with appropriate supervision that accounts for the Children’s developmental needs.

[130]     Given the COVID-19 crisis, I cannot fathom how long the Children would have to be in the Director’s custody before this list of expectations could be satisfied. In any event, K.S. has provided the social workers with whatever information they requested. She has given them clean drug tests, access to her counsellor and medical service providers, and parenting references. There is no evidence all the Children were traumatized by D.B.’s injury beyond the fact it caused the Director to remove them from their home and community and school and place them in a foster home with strangers. J.B. wasn’t even present at the time of the accident. There is no evidence that D.B. is failing to reach his “emotional and developmental milestones.” K.S. and C.B. are now separated, but consider themselves co-parents and support one another. C.B. said that he and K.S. agreed when separating they would never use the Children against the other. From the evidence before me, K.S. and C.B. have addressed their “historical discord.” Other than the slapping incident from 2016, the Director has not provided any evidence that C.B. is not a fit parent. I have no doubt counselling can benefit troubled souls, but I do not believe it was the intent of the legislators that the Director maintain custody of Children until they and their parents are counselled into perfection, in the event that is even possible or desirable.

[131]     Section 35(2) of the Act provides me with four options at the conclusion of the presentation hearing:

[132]     The Director seeks interim custody of the Children, failing which, the Director asks the Children be returned to the parents under a supervision order with the following terms:

[133]     I do not see any justification for such a highly intrusive supervision order. In my view the appropriate disposition of this presentation hearing is to return the Children to their parents’ care, and I so order.