IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         These reasons arise from a “presentation hearing” conducted under the authority of section 35 of the Child, Family & Community Service Act RSBC 1996, c 46 (“the CFCSA”).  The Director of Child, Family & Community Services (“the Director”) applies for an order that A.G.H., who will celebrate her second birthday at the end of May, remain in the care of the Director until a protection hearing can be held under the authority of section 40 of the CFCSA.  Ms. V., A.G.H.’s mother, opposes the application and asks that I order that A.G.H. be immediately returned to her care.  Mr. H., A.G.H.’s father, took no part in the proceedings.

[2]         A.G.H. was removed from Ms. V.’s care by the Director on October 19, 2022.

[3]         Mr. Monier-Williams, for the Director, points out that the issue on this application is not whether A.G.H. is in need of protection - that is the issue to be adjudicated at a protection hearing – but rather whether she should be returned to her mother’s care pending the protection hearing.  The nature of the decision which I must make was described by my colleague, the Honourable Judge Barrett, in the following terms (underlining added):

[4]         The challenge in this case is that most of the information upon which the Director relies consists of double hearsay or hearsay from anonymous sources.  I raised that issue with Mr. Monier-Williams during the hearing, but he expressed himself to be content with the “evidence” which he tendered.

[5]         Section 35(1) of the CFCSA provides:

[6]         The report presented by the Director in this case makes the following material assertions:

[7]         The Director’s report also makes the following allegation.

[8]         Ms. V. acknowledges that she has been charged with assault, arising from an incident which occurred on a [omitted for publication] street corner on October 14, 2022.  She is awaiting trial on that charge.  She says that she and A.G.H. were standing on the sidewalk, waiting to cross the street.  Her attention was diverted from A.G.H. for a few moments.  When she looked back at A.G.H., a man whom she did not know was offering A.G.H. a bite from his half-eaten hamburger.  She struck the man in the face.  She explains that A.G.H. has food allergies and that she reacted instinctively to repel the man.

[9]         Ms. V. acknowledges that she engaged in an argument with A.G.H.’s father at a bus stop on October 18, 2022.  Documents from the file of the [omitted for publication] Police Department indicate that the police received a telephone call from someone who said that she had witnessed the argument and that Ms. V. had punched A.G.H.’s father.  The police have been unable to identify or interview the caller.  Ms. V. says that she did not strike A.G.H.’s father.  She says that, in frustration, she struck the sign at the bus stop.  No charges have been laid as a result of this incident.  Ms. Orentes Duran, the social worker with conduct of A.G.H.’S file, says that this incident was the triggering event which caused the Director to remove A.G.H. from her mother’s care.

[10]      Ms. Orentes Duran, says that, on more than one occasion, when interviewed by social workers, Ms. V. has lost her temper and shouted at the social workers.  Ms. Orentes Duran has personally witnessed that behaviour.

[11]      As noted in paragraph 6, above, there is no evidence at all to support the other concerns articulated in the Director’s report to the court.  The author of the report to the court was not identified.  The evidence does not disclose the basis for that person’s “concerns”.  For example, the evidence does not disclose whether that person had personal knowledge of Ms. V.’s substance use or housekeeping practices.

[12]      Only three of the allegations in the Director’s report to court are supported by any evidence.  They are: (i) the assault on the street corner, which Ms. V. admits; (ii) the argument at the bus stop, which Ms. V. admits, although she denies striking A.G.H.’s father; and (iii) shouting at social workers during meetings, at which Ms. Orentes Duran was present.  It is to be noted that A,G.H. was present at the first of these events, but not at the second or third.

[13]      The question at a presentation hearing is whether the Director has provided admissible evidence which, if accepted, could lead to a conclusion that a child is in need of protection.  Put another way, the question is whether the Director has provided admissible evidence that one of more of the circumstances enumerated in section 13 of the CFCSA pertains.  The only two such circumstances for which the evidence in this case provides any support are subsections 13(1)(a) and 13(1)(e); i.e. whether the evidence is capable of supporting a conclusion that A.G.H. is in need of protection because of Ms. V.’s propensity for loud arguments, accompanied in one case by violence.

[14]      In considering that question, it is important to note that Ms. V.’s wrath was not directed toward A.G.H. in any of the three incidents of which there is evidence.  During the first incident, Ms. V. was attempting to protect A.G.H. from advances by a strange man.  Ms. V. may or may not have gone too far, but A.G.H. was not at risk.  A.G.H. was not present during the second or third incidents.

[15]      There may be cases in which a parent’s pattern of behaviour indicates a lack of self-control which may pose a risk to children in that parents’ care.  However, the evidence in this case does not rise to that level.

[16]      I am required to make one of the orders described in section 35 of the CFCSA.  I do not think that I should order A.G.H. to remain in the custody of the Director because the Director has not led evidence sufficient to discharge the Director’s onus, as described in paragraph 3.  I do not think that I should simply order the Director to return A.G.H. to Ms. V.’s care.  I am concerned by Ms. V.’s presentation in the courtroom and by the nature of the allegations against her.  In the circumstances, the best I can do is to order that AG.H. be returned to Ms. V.’s care under the supervision of the Director.  If the parties are unable to agree on the terms of supervision, they are at liberty to apply.