Citation:	British Columbia (Children and Family Development) v. M.K.C.
	2024 BCPC 55
Date:		20240408
File No:		19153
Registry:		[omitted for publication]

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

IN THE MATTER OF

THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46

AND THE CHILD:

 

R.M.C., born [OMITTED FOR PUBLICATION]

 

 

BETWEEN:

 

DIRECTOR OF MINISTRY OF CHILDREN AND FAMILY DEVELOPMENT

 

APPLICANT

AND:

M.K.C.

PARENT

AND:

A.W.

PARENT

     

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE M.J.BRECKNELL

 

 

Counsel for the Director:	J. Yuen
Counsel for M.K.C.	G. Rivard
Counsel for A.W.	R. Nielsen
Place of Hearing:	[omitted for publication], B.C.
Date of Hearing:	March 28, 2024
Date of Judgment:	April 8, 2024

 

INTRODUCTION

RELATIONSHIP HISTORY

a)   Her relationship with M.C. began in January 2016.  They were both living in [omitted for publication], each in their own parent’s home.  She spent time in both her father’s home and M.C.’s parents’ home from time to time but they did not live together;

b)   Her relationship with M.C. had its highs and lows.  They would argue.  M.C. assaulted her many times and she fought back.  He would punch her and throw her around in his room in his parents’ home several times a month.  Sometimes she would be left with black eyes.  M.C.’s parents would only intervene to the extent to tell them to quiet down;

c)   She discovered her pregnancy in July 2016.  After that the physical assaults by M.C. diminished but the verbal abuse continued with M.C. accusing her of infidelity and calling her derogatory names.  She believed M.C. was abusing drugs and alcohol at that time but she never saw him consuming those items;

d)   In December 2016, M.C. assaulted her again.  (Court records show he was charged,  placed on bail with no contact with A.W., and on August 10, 2017 was convicted and received a suspended sentence and probation for 12 months with no contact with A.W.);

e)   When the Child was born she was living at her father’s home with the Child and M.C. was living at his parents’ home.  She and the Child spent up to three days a week at M.C.’s parents’ home.  There was a bassinette at M.C.’s home and a crib at her home;

f)     The relationship with M.C. was strained but she tried to make things work because she wanted the Child to have a relationship with M.C. and to not come from a broken home.  However, in August 2017 M.C. once again accused her of infidelity and kicked her in the face while she was sitting down and holding the Child.  Soon after that she moved with the Child from [omitted for publication] staying briefly with an uncle in Burnaby before living with her siblings, mother and other family members in Surrey from January 2018 to July 2020;

g)   After she left [omitted for publication] M.C. had very limited contact with her and the Child.  He came to Surrey once and spent 10 minutes with the Child and rarely messaged her asking about the Child;

h)   While she lived in Surrey the Child had daily contact with her mother, R.W. and they have a good loving bond with R.W. helping to raise the Child;

i)     She returned to [omitted for publication] on average once per year between 2017 and 2020 but M.C. made little effort to spend time with the Child although the Child did spend time with M.C.’s parents and sister;

j)     In July 2020, she returned to live with her father in [omitted for publication].  M.C. was still residing with his parents.  She hoped she and M.C. could make things work but they were not successful.  At that time M.C had some visits with the Child;

k)   In September 2020, M.C. moved to Terrace where he continues to reside.  Between September and December 2020 M.C. had some visits with the Child in [omitted for publication] but there were also times where she would see M.C. in [omitted for publication] but he did not ask to visit the Child;

l)     In 2021, M.C. had several visits with the Child in [omitted for publication] sometimes for up to seven or eight hours.  She and M.C. agreed to try a couple of overnight visits but the Child became distressed and M.C. returned him home.  M.C. was making some efforts to see the Child;

m)  In 2022, M.C.’s contact with the Child was based around M.C.’s schedule and commencing in September the Child’s attendance in Kindergarten.  M.C. had some visits in [omitted for publication] or Terrace during the day and on a couple of occasions overnight weekend visits in Terrace;

n)   In 2023, up until May M.C. had visits with the Child including some overnight weekend visits.  M.C. was working in a camp on a rotating schedule.  It was during one of his weekend overnight visits in Terrace that M.C. alleged she had assaulted the Child.  Soon after that she moved from [omitted for publication] to Langley and then to Prince George.

CRIMINAL CHARGES, MCFD INVOLVEMENT AND FLA LITIGATION

TRIAL EVIDENCE

Director’s Evidence

a)   He has over nine years’ experience as an MCFD social worker.  He assumed conduct of this file in July 2023;

b)   M.C. assumed care of the Child in May 2023 after the allegations against A.W. were raised.  When M.C. was working in camp his parents would care for the Child in their home in [omitted for publication].  MCFD has no child protections concerns with M.C. or his parents;

c)   After A.W. retook care of the Child in July 2023 things had improved in her situation so a safety plan was put in place for R.W. to supervise A.W.’s time with the Child;

d)   After the Information was sworn in August 2023 and A.W.’s Undertaking eliminated her contact with the Child again MCFD considered the safety plan to be insufficient because R.W. was not properly supervising A.W.’s time with the Child so a supervision order was sought but dismissed by the Court;

e)   Between July 21, 2023 and September 5, 2023, M.C. tried to get the Child back into his care.  He went to Surrey and engaged the assistance of the RCMP but the Child and R.W. could not be located;

f)     The Child has been with R.W. since July 2023.  MCFD had no position on where the Child would live; M.C. or R.W.;

g)   MCFD has some protection concerns about A.W. which are addressed in the terms of the supervision order it now seeks.  These include;

                                    I.        The alleged physical assault of the Child;

                                   II.        Counselling for the Child which was commenced in the fall of 2023 by R.W. because the Child was exhibiting distress at A.W.’s absence;

                                 III.        A.W. needing anger management counselling;

h)   MCFD would like to see access between the Child and M.C.;

i)     In addition to R.W. the Child has an aunt in Metro Vancouver who acted as an advocate for a while;

j)     The Director is now satisfied that A.W. has addressed its concerns such that the Child can be returned to her under supervision.  There are still some services they would like A.W. to take including an in person parenting program;

k)   If the Child was returned to M.C., the Director would most likely seek supervision for the time A.W. spends with the Child;

l)     It is MCFD’s customary practice to only return a child to a guardian.  The only evidence it has that M.C. is a guardian is his say so.  They have conflicting information on M.C’s involvement with the Child since his birth;

m)  MCFD recognized that the Child has made statements to his counsellor about being coached by M.C. but those allegations and other information from the counsellor came late in the process and did not change MCFD’s decision to seek a supervision order return to A.W.  The likelihood of A.W. moving with the Child to Surrey was part of the process in deciding to seek a supervision order.

a)   After the assault allegations the Band was not consulted about placing the Child with M.C. before it occurred.  The Chief objected to the plan stating that M.C. had rarely had contact with the Child who lived with A.W. for almost seven years.  The Chief demanded the Child be immediately returned to [omitted for publication] but MCFD did not comply;

b)   In meetings with MCFD, the Chief and elders insisted that MCFD’s actions were based on colonial constructs and that the Director should respect the WILP system on where the Child would reside.  The Child should reside with A.W. or members of the maternal family and not with M.C. or members of the paternal family;

c)   The distance between Surrey and [omitted for publication] is much greater than the distance between Terrace and [omitted for publication] for ensuring that the Child can attend community activities;

d)   The Band said they would organize a decision-making process with both sides of the Child’s family with a view to have the Child reside with his maternal relatives and present it to MCFD.  Such a plan was never presented.

A.W.’s Evidence

a)   On July 21, 2023, before retrieving the Child from M.C.’s family members she checked with MCFD and the RCMP and was assured that there were no legal impediments to her taking the Child into her care;

b)   She and family members went to M.C.’s parents’ home at about 10 pm and she demanded the Child be returned to her but she did not swear at anyone.  The Child and some of his cousins left on a vacation with their grandfather a couple of days later;

c)   As a result of the August 2023 release conditions she moved initially to a family member’s home in Langley and shortly after to Prince George to live with other family.  She had absolutely no contact with the Child, either in person or electronically from August 2023 to January 2024; 

d)   she denies the allegations raised by M.C. including:

                           I.        she did not assault the Child at any time;

                          II.        the Child was riding his bike and broke his tablet on May 9;

                        III.        she has no knowledge of any alleged injuries to the Child;

                        IV.        the Child had a minor skin condition on his nose; and

                        V.        the Child has subsequently disclosed to his counsellor that he made up the allegations with M.C.’s influence and encouragement.

e)   She would like to move to Surrey because the Child likes his school, friends and activities and there would be in regular contact with R.W.;

f)     She hopes M.C. can maintain contact with the Child.  There are geographic issues but they can be worked on;

g)   She knows of M.C.’s partner, S.M., and did see her at a store in Terrace when she was shopping with the Child.

THE LAW

Guiding principles

a) 2  This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles:

(a) children are entitled to be protected from abuse, neglect and harm or threat of harm;

(b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents;

(b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children;

(c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided;

(d) the child's views should be taken into account when decisions relating to a child are made;

(e) kinship ties and a child's attachment to the extended family should be preserved if possible;

(f) Indigenous children are entitled to

(i) learn about and practise their Indigenous traditions, customs and languages, and

(ii) belong to their Indigenous communities;

(g) decisions relating to children should be made and implemented in a timely manner.

Service delivery principles

b) 3  The following principles apply to the provision of services under this Act:

(a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them;

(b) in the planning and delivery of services to Indigenous children and families, there should be consultation and cooperation with Indigenous peoples and Indigenous governing bodies;

(b.1) services should be planned and provided in ways that prevent discrimination prohibited by the Human Rights Code and that promote substantive equality, respect for rights and culture and, in the case of Indigenous children, cultural continuity;

(c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services;

(c.1) the impact of residential schools on Indigenous children, families and communities should be considered in the planning and delivery of services to Indigenous children and families;

(d) services should be integrated, wherever possible and appropriate, with services provided by government ministries, community agencies and Community Living British Columbia established under the Community Living Authority Act;

(d.1) services to Indigenous children and families should be provided in a coordinated manner with Indigenous child and family services provided by Indigenous authorities;

(e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children.

Best interests of child

c) 4  (1)Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example:

(a) the child's safety;

(b) the child's physical and emotional needs and level of development;

(c) the importance of continuity in the child's care;

(d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;

(e) the child's cultural, racial, linguistic and religious heritage;

(f) the child's views;

(g) the effect on the child if there is delay in making a decision.

(2) If the child is an Indigenous child, in addition to the relevant factors that must be considered under subsection (1), the following factors must be considered in determining the child's best interests:

(a) the importance of the child being able to learn about and practise the child's Indigenous traditions, customs and language;

(b) the importance of the child belonging to the child's Indigenous community.

…

When protection is needed

d) 13  (1) A child needs protection in the following circumstances:

(a) if the child has been, or is likely to be, physically harmed by the child's parent; ….

 (d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent;

(e) if the child is emotionally harmed by

(i) the parent's conduct, or

(ii) living in a situation where there is domestic violence by or towards a person with whom the child resides;

(f) if the child is deprived of necessary health care;…

 

Finding out if a child needs protection

e) 16  (1) On receiving a report about a child under section 14, 15 or 27, a director must determine whether to refer the report

(a) to another director, or

(b) if the child is an Indigenous child, to an applicable Indigenous authority.

(1.1) The director must not make a determination to refer the report as set out in subsection (1) (b) unless the Indigenous authority confirms that an Indigenous law applies to the child and that the Indigenous authority will assess the information in the report.

…

If a supervision order is needed

f) 29.1  (1) A director may apply to the court for an order that the director supervise a child's care if the director has reasonable grounds to believe that

(a) the child needs protection, and

(b) a supervision order would be adequate to protect the child.

Removal of child

g) 30  (1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that

(a) the child's health or safety is in immediate danger, or

(b) no other less disruptive measure that is available is adequate to protect the child. ….

Presentation hearing and orders

h) 35  (1) At a presentation hearing relating to the removal of a child under section 30, the director must present to the court a written report that includes

(a) the circumstances that caused the director to remove the child,

(b) an interim plan of care for the child, including, in the case of an Indigenous child, the steps to be taken to support the child to learn about and practise the child's Indigenous traditions, customs and language and to belong to the child's Indigenous community, and

(c) information about any less disruptive measures considered by the director before removing the child.

(2) At the conclusion of the hearing, the court must make

(a) an interim order that the child be in the custody of the director,

(b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the director,

(c) an order that the child be returned to or remain with the parent apparently entitled to custody, or

(d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision.

Orders made at protection hearing

i) 41  (1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child's best interests:

(a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director's supervision for a specified period of up to 6 months;

(b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision, for a specified period in accordance with section 43;

(c) that the child remain or be placed in the custody of the director for a specified period in accordance with section 43;….

 (1.1)When an order is made under subsection (1) (b) or (c), the court may order that on the expiry of the order under subsection (1) (b) or (c) the child

(a) be returned to the parent, and

(b) be under the director's supervision for a specified period of up to 6 months. …

 (2.1) If an order was made under section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the director supervise the child's care for a specified period of up to 6 months.

(3)The court may attach to an order under this section any terms or conditions recommended by the director to implement a plan of care.

Content of supervision orders

j) 41.1  The court may attach to a supervision order terms and conditions recommended by the director to implement the plan of care, including

(a) services for the child's parent or another person in the child's home,

(b) daycare or respite care,

(c) the director's right to visit the child, and

(d)the requirement that the director remove the child if a person does not comply with one or more specified terms or conditions of the order.

Access to child in interim or temporary custody of director or other person

k) 55  (1) At the time an order, other than a continuing custody order or an order made under section 54.01 (5) or 54.1, is made under this Part, the parent who had custody when the child was removed may apply to the court for access to the child.

(2) After an order, other than a continuing custody order or an order made under section 54.01 (5) or 54.1, is made under this Part, any person may apply to the court for access to the child.

 (5) If a person, other than the parent who had custody when the child was removed, applies under subsection (2), the court may order that the person be given access to the child unless the court is satisfied access is not in the child's best interests.

(6)The court may attach to an access order under this section or section 56 any reasonable terms or conditions.

Minimum standards

a)   4 For greater certainty, nothing in this Act affects the application of a provision of a provincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.

Principle — best interests of child

b)   9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Best interests of Indigenous child

c)   10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Effect of services

d)   11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that

(a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being;

(b) takes into account the child’s culture;

(c) allows the child to know his or her family origins; and

(d) promotes substantive equality between the child and other children

Priority

e)   16 (1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority:

(a) with one of the child’s parents;

(b) with another adult member of the child’s family;

(c) with an adult who belongs to the same Indigenous group, community or people as the child;

(d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or

(e) with any other adult.

Case Law

a)   British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82;

SUBMISSIONS

Director

a)   In the Director’s view A.W.’s evidence confirms that M.C. is a guardian;

b)   There are no protection concerns regarding M.C.  There are some regarding A.W. but she has made progress;

c)   The Court should focus on the Child’s best interests rather than safety concerns;

d)   A.W. has been the primary parent to the Child and the Child is distressed about being separated from her;

e)   Under the Federal Act the Child should have been placed with M.C. as a parent over a non-parent;

f)     It is a matter of minute degree in choosing one Parent over the other;

g)   When an order is made pursuant to Section 41 of the Act it is possible for the Court to make an access order under Section 55 at the same time.

M.C.

a)   M.C. is a guardian based on the evidence presented;

b)   The Court should look at both the best interests and the safety of the Child;

c)   MCFD’s original plan was to place the Child with M.C. and permit A.W. supervised access.  That would be in the Child’s best interests due to A.W. not always permitting M.C. to spend time with the Child;

d)   M.C. and the Child should be able to build a bond by having the Child in M.C’s care;

e)   M.C. lives much closer to the extended family and the community of [omitted for publication].  That proximity to community was of great concern to the Chief and the Band in the early days after the Child was placed with M.C.

A.W.

a)   A.W. has been the Child’s primary caregiver his entire life up until May 2023.  By contrast the Child has never had his primary residence with M.C. who had very limited access for many years and only a few overnight visits in the year before May 2023;

b)   In the Court appearance in September 2023 the Judge enquired if a Judge should make any orders in a CFCSA proceeding where there are no protection concerns in the face of FLA litigation between the same parties;

c)   The Court should consider the intimate partner violence in the Parents relationship;

d)   A.W. denies any assault on the Child;

e)   There is no evidence that at this point in time that would require the Court to place the Child with M.C.;

f)     The Court must consider if it can place the Child with M.C., who is not a guardian but a parent, and if it can then consider whether it is in the Child’s best interests.

DISCUSSION

a)   The best interest factors set out in both pieces of legislation;

b)   The evidence of Mr. Caldwell and A.W.;

c)   The evidence on the allegations raised about A.W.’s actions towards the Child and the allegations of his subsequent recantation;

d)    The history of the Child’s care;

e)   The Director’s proposed order; and

f)     The submissions of counsel.

DECISION

1.   A.W. must allow the Director direct and private, announced and unannounced access to the Child, and direct, announced and unannounced access to any place the Child is residing are being cared for, as often as the Director deems necessary to ensure the Child’s safety and well-being;

2.   A.W. shall ensure that the Child attends all scheduled medical appointments and will follow the recommendation of the Child’s physicians and will follow through regarding any assessment, referrals and testing that medical professionals recommend;

3.   A.W. shall ensure that the Child continues to attend counselling appointments and follow any recommendations of the counsellor in regard to the Child’s mental health and wellbeing;

4.   A.W. will not change the Child’s address or location without giving the Director at least seven (7) days’ notice of such intended change, and shall not remove the Child to the new address or location until the Director has performed a home check to ensure whether or not the new address or location is appropriate, and provided written confirmation that the address or location are approved;

5.   A.W. will engage in anger management, and parenting programming for a period of six months, as approved by the Director;

6.   A.W. will ensure that no form of physical discipline is employed towards the Child and that the Child shall not be subjected to or exposed to any acts of violence;

7.   Pursuant to Section 55 of the Act A.W. will permit and facilitate access, whether in person or virtually between the Child and M.C., as agreed between the parties, as required by the Director or as ordered by the Court in this proceeding or pursuant to the Family Law Act;

8.   That Director may remove the Child if the terms of this order are breached.

 

 

_______________________________

The Honourable Judge M.J. Brecknell

Provincial Court of British Columbia