Director v. T.C.C. & F.J.M., 2017 BCPC 439

Citation: Director v. T.C.C. & F.J.M. 2017 BCPC 439 Date: 20171025 File No: 3471 Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Burns Lake, B.C. IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: J.M.J.M. , born [omitted for publishing] and F.G.M. born [omitted for publishing] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: T.C.C. F.J.M. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS

Counsel for the Director: J. Yuen Counsel for the Parent: No Appearance Place of Hearing: Burns Lake , B.C. Date of Hearing: October 10, 2017 Date of Judgment: October 25, 2017 Introduction [ 1 ] This is hearing of the director’s application for a continuing custody order pursuant to s. 49(5) of the Child, Family and Community Services Act (“ CFCSA ”) with respect to the child J.M.J.M., born [omitted for publishing] and F.G.M. born [omitted for publishing] (collectively the “children”). [ 2 ] J.M.J.M. and F.G.M. are the biological children of T.C.C. and F.J.M.

The matter came before me for hearing on October 10, 2017. Only counsel for the director of the CFCSA appeared at the hearing.

History of the Proceedings [ 3 ] J.M.J.M. was removed from F.J.M. and T.C.C.’s care on April 7th, 2016 in Burns Lake, B.C. under s. 30 of the CFCSA on the basis the delegate of the director of the Ministry of Children and Family Development (“the Ministry”) had reasonable grounds to believe J.M.J.M. needed protection and there were no less disruptive available measures adequate to protect her. [ 4 ] The director provided T.C.C. and F.J.M. with supervised access to J.M.J.M. [ 5 ] On April 11, 2016, counsel for the director filed with the Burns Lake Court Registry, Presentation Form 1 and Report to the Provincial Court of British Columbia, Form A with respect to J.M.J.M.

Delena Wiebe was the social worker and delegate of the director with respect to this application. [ 6 ] On April 12, 2016, the director’s April 11, 2016 application came before Judge Jackson sitting in Burns Lake, B.C. F.J.M. and T.C.C. attended court unrepresented. Judge Jackson adjourned the Presentation Report to the Judicial Case Manager to

schedule a hearing date. [ 7 ] On May 11, 2016, the Presentation Hearing with respect to J.M.J.M. was scheduled before Judge Jackson sitting in the Burns Lake Provincial Court. On that date, Judge Jackson adjourned the Presentation Hearing to May 24, 2016. [ 8 ] The Presentation Hearing with respect to J.M.J.M. proceeded before Judge Jackson sitting in the Burns lake Provincial Court on May 24, 2016. F.J.M. and T.C.C. were present with Jacquie Reed, appearing as family duty counsel. No one appeared on behalf of the [omitted for publishing] Nation or the [omitted for publishing] Nation. On May 24, 2016, Judge Jackson ordered: a. pursuant to s. 35(2)(

a) of the CFCSA , J.M.J.M. will remain in the interim custody of the director; and b. on May 30, 2016, the Judicial Case Manager fix a date within 45 days for the commencement of the Protection hearing and a case conference. [ 9 ] On June 15, 2016, counsel for the director filed in the Burns Lake Court Registry: a. the director’s Application for an Order, Form 2, seeking a three month temporary custody order with respect to J.M.J.M. pursuant to s. 41(1)(

c) of the CFCSA , and b. the director’s Court Plan of Care with respect to J.M.J.M. At the time J.M.J.M. was in a Ministry approved foster home.

The overall goal of the plan of care was to return J.M.J.M. to her parents’ care. [ 10 ] On June 23, 2016, counsel for the director filed the following documents in the Burns Lake Court Registry: a. a Certificate of Service in Form 9 stating on June 16, 2016, R.M. served T.C.C., at [omitted for publishing], Burns Lake, B.C. with a copy of the Application for an Order for J.M.J.M., the Court Plan of Care and the Written Consent (Form 11); b. a Certificate of Service in Form 9 stating on June 16, 2016, R.M. served F.J.M. at [omitted for publishing] Road, Burns Lake, B.C. with a copy of the Application for an Order for J.M.J.M., the Court Plan of Care and the Written Consent (Form 11); c. a Certificate of Service in Form 9 stating on June 22, 2016, R.M. served (by facsimile) D.W., representative of the [omitted for publishing] Nation, at the [omitted for publishing] Band Office, [omitted for publishing], Burns Lake, B.C., with a copy of the Report to Court for J.M.J.M., the Court Plan of Care and the Written Consent (Form 11); and d. a Certificate of Service in Form 9 stating on June 22, 2016, Maureen Olson served (by facsimile) Y.L., Representative for the [omitted for publishing] Nation, with a copy of the Application for an Order for J.M.J.M., the Court Plan of Care and the Written Consent (Form 11). [ 11 ] On June 28, 2016, Philippa Newman, filed a counsel designation notice indicating she was representing both T.C.C. and F.J.M. in these proceedings. [ 12 ] The Presentation Hearing was scheduled to proceed on June 28, 2016, in Burns Lake Provincial Court.

F.J.M. and T.C.C. attended the hearing with their legal counsel, Philippa Newman. No one appeared on behalf of the [omitted for publishing] Nation or the [omitted for publishing] Nation. On that day, the Court adjourned the matter to the Judicial Case Manager on July 12, 2016, to fix a date

for a case conference. [ 13 ] On July 12, 2016, the Presentation Hearing with respect to J.M.J.M. proceeded before Judge Birnie sitting in Burns Lake Provincial Court. F.J.M. and T.C.C. attended the hearing with their legal counsel, Phillipa Newman. On that day, Judge Birnie ordered, by consent: a. J.M.J.M. would be in the temporary custody of the director; and b.

F.J.M. and T.C.C. would have access to J.M.J.M. at the discretion of and under the supervision of the director. [ 14 ] On September 21, 2016, the director removed F.G.M. from F.J.M. and T.C.C.’s care pursuant to s. 30 of the CFCSA on the basis the director had reasonable grounds to believe F.G.M. needed protection and there were no less disruptive available measures adequate to protect him. [ 15 ] On September 23, 2016, counsel for the director filed in the Burns Lake Court Registry a Presentation Form 1. [ 16 ] On September 26, 2016, counsel for the director filed the Report to the Provincial Court of British Columbia, Form A with the Burns Lake Court Registry, with respect to J.M.J.M. [ 17 ] On September 29, 2016, counsel for the director filed the Report to the Provincial Court of British Columbia, Form A with the Burns Lake Court Registry, with respect to F.G.M. [ 18 ] On September 26, 2016, the director’s Presentation Hearing with respect to F.G.M. proceeded before Judge Birnie sitting in the Burns Lake Provincial Court.

At that time the matter was adjourned to October 11, 2016. [ 19 ] On October 5, 2016, counsel for the director filed in the Burns Lake Court Registry an Application for an Order, Form 2, seeking a three month extension of the July 12, 2016 temporary custody order granted with respect to J.M.J.M.

Maureen Olson was the social worker and delegate of the director with respect to this application. [ 20 ] On October 6, 2016, counsel for the director filed in the Burns Lake Court Registry the following documents: a. a Certificate of Service in Form 9 stating on October 5, 2016, Maureen Olson served T.C.C. at [omitted for publication], Burns Lake, B.C. with a copy of the Report to Court for F.G.M., the Presentation Form for F.G.M., the Application for an Order for J.M.J.M., and a letter to T.C.C. dated September 28, 2016; b. a Certificate of Service in Form 9 stating on October 5, 2016, Maureen Olson served F.J.M. at [omitted for publication], Burns Lake, B.C. with a copy of the Report to Court for F.G.M., the Presentation Form for F.G.M., the Application for an Order for J.M.J.M., and a letter to T.C.C. dated September 28, 2016; c. a Certificate of Service in Form 9 stating on October 5, 2016, Maureen Olson served (by facsimile) Chief R.M. and D.W., representatives of the [omitted for publication] Nation, with a copy of the Report to Court for F.G.M., the Presentation Form for F.G.M., the Application for an Order for J.M.J.M., and a letter to T.C.C. dated September 28, 2016; and d. a Certificate of Service in Form 9 stating on October 5, 2016, Maureen Olson served Y.L., Representative for the [omitted for publication] Nation, with a copy of the Report to Court for F.G.M., the Presentation Form for F.G.M., the Application for an Order for J.M.J.M., and a letter to T.C.C. dated September 28, 2016. [ 21 ] The director’s September 23, 2016 and October 5, 2016 applications came for hearing on October 11, 2016, before Judge Birnie sitting in the Burns Lake Provincial Court.

Counsel for the director and social worker and delegate Maureen Olson attended the hearing. T.C.C. and F.J.M. also attended at the hearing as did their legal counsel, Philippa Newman on October 11, 2016. No one appeared on behalf of the [omitted for publication] Nation or the [omitted for publication] Nation. On October 11, 2016, Judge Birnie of made the following orders by consent: a. pursuant to s. 44(3)(

b) and with reference to s. 60 of the CFCSA , the order made July 12, 2016, that J.M.J.M. be in the temporary custody of the director be extended for a period of three months; b. pursuant to s. 35(2)(

a) F.G.M. will remain in the interim custody of the director; c. pursuant to s. 60(3) of the CFCSA , the requirement for the parties written consent to the order be dispensed with; d. on October 17, 2016, the Judicial Case Manager fix a date within 45 days for the commencement of the Protection hearing with respect to F.G.M. [ 22 ] On October 26, 2016, counsel for the director filed in the Burns Lake Registry the director’s Application for an Order, Form 2 and a Court Plan of Care with respect to F.G.M. The director sought a three month temporary custody order of F.G.M. pursuant to s. 41(1)(c).

Maureen Olson was the social worker and delegate of the director with respect to this application. [ 23 ] The October 26, 2016 Court Plan of Care filed with respect to F.G.M. indicated he was residing in a Ministry approved foster home and the overall goal of the plan of care was to return F.G.M. to his parents’ care. [ 24 ] On November 7, 2016 counsel for the director filed in the Burns Lake Court Registry: a. a Certificate of Service in Form 9 stating on October 28, 2016, Maureen Olson served T.C.C. at [omitted for publication] Road, Burns Lake, with a copy of the Application for an Order for F.G.M., the Court Plan of Care for F.G.M. and consent form;

b. a Certificate of Service in Form 9 stating on October 28, 2016, Maureen Olson served F.J.M., at [omitted for publication] Road, Burns Lake, with a copy of the Application for an Order for F.G.M., the Court Plan of Care for F.G.M. and consent form; c. a Certificate of Service in Form 9 stating on November 3, 2016, Maureen Olson served J.M., Representative for the [omitted for publication] Nation, with a copy of the Application for an Order for F.G.M., the Court Plan of Care for F.G.M. and consent form; d. a Certificate of Service in Form 9 stating on November 3, 2016, Maureen Olson served Y.L., Representative for the [omitted for publication] Nation, with a copy of the Application for an Order for F.G.M., the Court Plan of Care for F.G.M. and consent form; and e. the Written Consent, in Form 11, from Y.L. of the [omitted for publication] Nation, [omitted for publication] Lake, B.C. consenting to F.G.M. being in the temporary custody of the Director under s. 4191)(

c) of the CFCSA for a period of three months. [ 25 ] The director’s October 26, 2016 application for an extension of its temporary custody order with respect to F.G.M. came on for hearing on November 22, 2016, before Judge Jackson sitting in the Burns Lake Provincial Court. Counsel for the director and social worker and delegate, Maureen Olson, attended the hearing. F.J.M. and T.C.C. were represented at the hearing by their legal counsel, Philippa Newman. No one on behalf of the [omitted for publication] Nation or the [omitted for publication] Nation appeared. On November 22, 2016, Judge Jackson made the following orders, by consent: a. pursuant to section 41(1)(

c) of the CFCSA, F.G.M. will be placed in the temporary custody of the director for a period of three months; b. pursuant to s. 60(3) of the CFCSA, the requirement for the parties’ written consent to the order be dispensed with. [ 26 ] On January 4, 2017, counsel for the director filed an Application for an Order, Form 2, seeking a three month extension of the temporary care order granted July 12, 2016 with respect to J.M.J.M. under s. 41.1 of the CFCSA . The application was sought under s. 44 of the CFCSA.

Maureen Olson was the social worker and delegate of the director with respect to this application. [ 27 ] On January 9, 2017, counsel for the director filed the following documents with the Burns Lake Registry: a. a Certificate of Service in Form 9 stating on January 4, 2017, Maureen Olson served F.J.M. and T.C.C. [omitted for publication], Bu r ns Lake, with a copy of the Application for an Order for J.M.J.M.; b. a Certificate of Service in Form 9 stating on January 6, 2017, Maureen Olson, served Y.L., Representative for the [omitted for publication] Nation, with a copy of the Application for an Order for J.M.J.M.; c.

Certificate of Service in Form 9 stating on January 6, 2017, Maureen Olson, served J.M., Representative for the [omitted for publication] Nation, with a copy of the Application for an Order for J.M.J.M.; d. a Certificate of Service in Form 9 stating on January 6, 2017, B.J. served T.C.C. at [omitted for publication]Road, Burns Lake, with a copy of the Application for an Order for J.M.J.M.; and e. a Certificate of Service in Form 9 stating on January 6, 2017, B.J. served F.J.M. at [omitted for publication]Road, Burns Lake, with a copy of the Application for an Order for J.M.J.M. [ 28 ] The director’s January 4, 2017 application came on for hearing on January 10, 2017, before Judge Birnie sitting in Burns Lake Provincial Court.

Counsel for the director and social worker and delegate Maureen Olson attended the hearing. F.J.M. and T.C.C. attended at the hearing with their legal counsel, Philippa Newman. No one appeared on behalf of the [omitted for publication] Nation or the [omitted for publication] Nation. [ 29 ] On January 10, 2017, Judge Birnie made the following orders by consent: a. pursuant to s. 44(3)(

b) and with reference to s. 60 of the CFCSA, the order made July 12, 2016, that J.M.J.M. be in the temporary custody of the director will be extended for a further period of three months; b. pursuant to s. 69 of the CFCSA, the time limits for service of the notice of the director’s application are abridged to the actual time of service; c. pursuant to s. 60(3) of the CFCSA, the requirement for the parties written consent to the order is dispensed with; d. Philippa Newman was removed as counsel of record for T.C.C. and F.J.M. [ 30 ] After Ms.

Newman was removed as their legal counsel, F.J.M. and T.C.C. made no effort to retain new counsel and stopped attending court. [ 31 ] On February 9, 2017, counsel for the director filed at the Burns Lake Court Registry an Application for an Order, Form 2 for: a. an order pursuant to s. 44(3)(

b) of the CFCSA that the order made November 22, 2016, that F.G.M. be in the temporary custody of the director be extended for a further three months; and b. an order pursuant to s. 44(3)(

b) of the CFCSA that the order made June 12, 2016, that J.M.J.M. be in the temporary custody of the director be extended for a further three months. [ 32 ] On February 20, 2017, counsel for the director filed the following documents in the Burns Lake Court Registry: a. a Certificate of Service in Form 9 stating on February 9, 2017, S.M. personally served F.J.M., at [omitted for publication] Road,

Burns Lake, B.C. with a copy of the Application for an Order and Written Consent; b. a Certificate of Service in Form 9 stating on February 9, 2017, S.M. personally served T.C.C. at [omitted for publication] Road, Burns Lake, B.C., with a copy of the Application for an Order and Written Consent; and c. a Certificate of Service in Form 9 stating on February 9, 2017, Maureen Olson, served (by facsimile) Y.L., Representative for the [omitted for publication] Nation, with a copy of the Application for an Order and Written consent. [ 33 ] The director’s February 9, 2017 application came on for hearing on February 21, 2017, before Judge Jackson sitting in Burns Lake Provincial Court.

At that time only counsel for the director and social worker and delegate Maureen Olson attended. Neither F.J.M. nor T.C.C. appeared at the hearing nor did anyone on their behalf. No representative of either the [omitted for publication] Nation or [omitted for publication] Nation appeared at the hearing. On February 21, 2016, Judge Jackson ordered: a. an order pursuant to s. 44(3)(

b) of the CFCSA that the order made July 12, 2016, that J.M.J.M. be in the temporary custody of the director be extended for a further three months; and b. an order pursuant to s. 44(3)(

b) of the CFCSA that the order made November 22, 2016, that F.G.M. be in the temporary custody of the director be extended for a further three months. [ 34 ] On May 4, 2017, counsel for the director filed the Burns Lake Court Registry an Application for an Order, Form 2, seeking an order under s. 49(5) of the CFCSA that J.M.J.M. and F.G.M. be placed in the continuing custody of the director.

Maureen Olson was the social worker and delegate of the director with respect to this application. [ 35 ] On May 9, 2017, counsel for the director filed with the Burns Lake Court Registry the director’s Court Plan of Care with respect to J.M.J.M. and F.G.M. At that time J.M.J.M. and F.G.M. were in a Ministry approved foster home.

The overall plan of care for the children was to provide them with permanency, considering all permanency options available to the Ministry in conjunction and collaboration with aboriginal agencies and the community. [ 36 ] On May 15, 2017, counsel for the director filed the following documents in the Burns Lake Court Registry: a. a Certificate of Service in Form 9 stating on May 8, 2017, Maureen Olson personally served T.C.C. at [omitted for publication], Burns Lake, with a copy of the Application for an Order, Court Plan of Care and Written Consent; b. a Certificate of Service in Form 9 stating on May 9, 2017, A.N. served (by facsimile) a representative for the [omitted for publication] Nation, with a copy of the Application for an Order, Court Plan of Care and Written Consent; and c. a Certificate of Service in Form 9 stating on May 15, 2017, Maureen Olson personally served F.J.M. at [omitted for publication], Burns Lake, with a copy of the Application for an Order, Court Plan of Care and Written consent. [ 37 ] On May 15, 2017, counsel for the director filed in the Burns Lake Court Registry and Application for an Order in Form 2, pursuant to Rule 6(1) of the Provincial Court ( CFCSA ) Rules and s. 69 of the CFCSA, that service upon F.J.M.’s aboriginal band, the [omitted for publication], be dispensed with, and a direction for substitutional service on the [omitted for publication] band office. [ 38 ] On May 16, 2017, the director’s May 4, 2017 application came before the court for a first appearance before Judge Doulis sitting in the Burns Lake Provincial Court.

At that time the Court granted the director ’s application so substitutionally serve the [omitted for publication] band with the director’s application materials. [ 39 ] On June 23, 2017, counsel for the director filed in the following documents in the Burns Lake Court Registry: a. a Certificate of Service in Form 9 stating on June 16, 2017, T.H. personally served T.C.C. at [omitted for publication], Burns Lake, with a copy of the director’s May 4, 2017 application for a continuing custody order, the director’s May 9, 2017 Court Plan of Care and a letter to T.C.C.; b. a Certificate of Service in Form 9 stating on June 16, 2017, T.H. personally served F.J.M. at [omitted for publication], Burns Lake, with a copy of the director’s May 4, 2017 application for a continuing custody order, the director’s May 9, 2017 Court Plan of Care and a letter to F.J.M.; c. a Certificate of Service in Form 9 stating on May 9, 2017, A.N. served (by facsimile) a representative for the [omitted for publication] Nation, with a copy of the Application for an Order, Court Plan of Care and Written consent; and d. a Certificate of Service in Form 9 stating on June 15, 2017, Maureen Olson personally served the representative of the [omitted for publication] Nation at [omitted for publication], Burns Lake, B.C. with a copy of the Application for an Order, Court Plan of Care and Letter to [omitted for publication] Nation. [ 40 ] On June 27, 2017, the director’s May 4, 2017 application came before the court for a second appearance before Judge Jackson sitting in the Burns Lake Provincial Court.

The matter was adjourned to the Judicial Case Manager to fix a date for hearing after July 27, 2017. [ 41 ] On July 11, 2017, counsel for the director filed with the Burns Lake Court Registry an Application for an Order in Form 2, seeking an order pursuant to s. 45 (1.1) of the CFCSA extending the maximum of time temporary custody for J.M.J.M. to October 31, 2017. Keisha Davis was the social worker and delegate of the director with respect to this application. [ 42 ] On July 12, 2017, the director’s July 11, 2017 application came for hearing before Judge Struyk sitting in the Provincial Court in Burns Lake.

Judge Struyk ordered pursuant to s. 45(1.1) of the CFCSA that the maximum time of the temporary custody for J.M.J.M. be extended to October 31, 2017.

Nature of these proceedings [ 43 ] The director seeks a continuing care order for J.M.J.M. and F.G.M. pursuant s.49(5) CCFCA. If court places the children in the continuing custody of the director, the director becomes their sole guardian and may consent to their adoption: s. 50(1)(

a) CFCSA . The order continues until J.M.J.M and F.G.M. (

a) reaches 19 years of age, (

b) is adopted, (

c) marries, or (

d) the court cancels the order or transfers custody (s. 53). Notice and attendance [ 44 ] The following persons were provided notice of the hearing of the Director’s application for continuing custody of J.M.J.M. and F.G.M.: T.C.C., F.J.M., the [omitted for publication] Nation and, substitutionally, the [omitted for publication] Nation. [ 45 ] Notice of this application and hearing date were made to the mother, T.C.C. as follows: a.

On June 16, 2017, T.H. personally served T.C.C. at [omitted for publication], Burns Lake, with a copy of the director’s May 4, 2017 application for a continuing custody order, the director’s May 9, 2017 Court Plan of Care and a letter to T.C.C.; and b. Social worker Maureen Olson spoke with T.C.C. a month ago when she had come to Ms. Olson’s office. At that time, SW Olson told T.C.C. that proceedings were going ahead today and it was important that she obtain a lawyer and that it was important that she attend court.

T.C.C. told SW Olson she was going attend court. [ 46 ] Notice of this application and hearing date were made to the father as follows: a. On June 16, 2017, T.H. personally served F.J.M. at [omitted for publication], Burns Lake, with a copy of the director’s May 4, 2017 application for a continuing custody order, the director’s May 9, 2017 Court Plan of Care and a letter to F.J.M. Evidence of the Director [ 47 ] The facts upon which the Director bases its applications are set out in following materials: a.

Exhibit 1: The director’s Report to Court, Form A, filed on April 11, 2016, in which social worker and delegate Delena Wiebe set out the circumstances that caused the director to remove J.M.J.M. from F.J.M. and T.C.C.’s care. b. Exhibit 2: The director’s Report to Court, Form A, filed on September 29, 2016, in which social worker and delegate Maureen Olson set out the circumstances that caused the director to remove F.G.M. from F.J.M. and T.C.C.’s care. [ 48 ] Social worker Maureen Olson also testified at the October 10, 2017, hearing. Ms. Olson has worked with the Ministry as a social worker for 7 ½ years.

She has been involved with T.C.C., F.J.M., and their children for over a year. [ 49 ] The evidence shows the Ministry has been involved with T.C.C. and her children since 2010. The social workers concerns about T.C.C.’s ability to parent have been ongoing and include not only J.M.J.M. and F.G.M., but also to T.C.C.’s eldest child, T.

T., who is now 11, has been in Ministerial care since she was an infant. [ 50 ] T.C.C.’s ability to parent her children has been undermined by chronic domestic violence and substance abuse. [ 51 ] Various safety plans have been put in place to protect T.C.C.’s children from family violence. T.C.C. repeatedly undermined the efficacy of these plans by taking the children and spending unsupervised time in F.J.M.’s company. [ 52 ] T.C.C. and F.J.M. ’s relationship is at high risk for domestic violence.

In fact, F.J.M. is currently in jail having been convicted of assaulting T.C.C. [ 53 ] Over the years the Ministry made available numerous support services to T.C.C. to assist her in overcoming her addictions, breaking the cycle of domestic violence and increase her parenting skills to the level where she could resume caring for her children.

Although T.C.C. attended a treatment facility to address her substance abuse, she has not followed through with the support services the Ministry has made available to protect herself and the children from domestic violence. [ 54 ] As to less disruptive measures for J.M.J.M., social worker Delena Wiebe states in the April 11, 2016 Report to Court, the Ministry held a family group conference in August 2015, to make a family plan for T. and J.M.J.M.. T.C.C. and F.J.M. did not follow through with the plan.

The Ministry has entered into a voluntary care agreement with the parents and held family case planning conferences consistently. At the expiration of the Voluntary Care Agreement in April 2016, the Ministry found the risk of family violence was such J.M.J.M. could not be returned to either parent’s care. [ 55 ] As to less disruptive measures for F.G.M., social worker Maureen Olson states in the September 29, 2016 Report to Court the Ministry has had several meetings with F.J.M., T.C.C., family and community members to develop safety plans to ensure the F.G.M.’s safety since his birth.

The Ministry put into place three different safety plans to protect F.G.M. from his father’s violence. All these plans unravelled. When released from the hospital after F.G.M.’s birth, T.C.C. went to the Elizabeth Fry woman’s shelter to work with the intensive family care program. T.C.C. did not feel comfortable at the shelter, so the Ministry developed an alternative family plan where T.C.C. would reside with relatives. The relative agreed to supervise any visits the children had with F.J.M. The first evening of this arrangement, T.C.C. left the residence with F.G.M. to meet F.J.M. at a hotel.

The Ministry developed an alternative plan, and T.C.C. again took F.G.M. to see F.J.M. without advising the family or the Ministry. [ 56 ] On September 21, 2016, the Ministry gave T.C.C. the option of returning to the shelter with F.G.M. which she declined. The Ministry subsequently removed F.G.M. [ 57 ] The alcohol abuse and domestic violence which destabilized F.J.M. and T.C.C.’s household have not abated in the past two

years. The Ministry’s attempts to school the parents in harm reduction were frustrated to some degree by F.J.M. and T.C.C.’s lack of capacity and functionality. For example, the Ministry had arranged for F.J.M. and T.C.C. to attend ten counselling sessions to address domestic violence. F.J.M. attended only two or three of those sessions. [ 58 ] T.C.C. would engage with the Ministry and support services for a brief period, and then disengage. As a result, T.C.C.’s visits with the children while they were in the Ministry’s care were sporadic. [ 59 ] F.J.M. and T.C.C.’s relationship was intermittent.

F.J.M. is now in jail and T.C.C. is with a new partner, G.A. T.C.C.’s relationship with F.J.M. appears to have ended. Nevertheless, T.C.C. had not visited with any of the children since she had completed her treatment program in July 2017 even though she continues to live in Burns Lake. [ 60 ] Last month T.C.C. advised Ms. Olson she was pregnant. Legislation and Authorities [ 61 ] I have considered the Child, Family and Community Service Act with particular attention being given to Sections 2 , 4 , 13 , 40 , 41 , 45 , 49 and 68 as set out below:

Section 2: [ 62 ] In making any decision under the CFCSA , the Court must consider the following guiding principles: 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; (

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) the cultural identity of aboriginal children should be preserved; (

g) decisions relating to children should be made and implemented in a timely manner. [ 63 ]

Section 4 references out the best interests of the child. It states: 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. [ 64 ]

Section 13 sets out when protection is needed.

Section 13(

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

l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force. [ 65 ] The director seeks a continuing custody order under section 49(5), which states: Continuing custody hearing and orders 49

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

[ 66 ] Section 45(6) states that before making a continuing custody order under s. 49(5), the court must consider: (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests. [ 67 ]

Section 50 sets out the effect of a continuing custody order. It states: 50

(1) When an order is made placing a child in the continuing custody of a director, (

a) the director becomes the sole personal guardian of the child and may consent to the child's adoption, (

b) the Public Guardian and Trustee becomes the sole property guardian of the child, and (

c) the order does not affect the child's rights respecting inheritance or succession to property. Analysis [ 68 ] At issue is whether the best interests of the children require continuing care orders. [ 69 ] I will consider those factors set out in s. 49(6). Factor (a): the past conduct of the parent towards any child who is or was in the parent's care [ 70 ] F.J.M. is a continuing source of domestic violence in the children’s lives. He is currently in jail for assaulting T.C.C.

Obviously, F.J.M. cannot be the children’s care giver. [ 71 ] T.C.C. will not make the changes necessary to safeguard her home from domestic violence. When given the choice of returning to the Elizabeth Fry shelter with F.G.M., or risk having F.G.M. removed from her care, T.C.C. chose the latter option. [ 72 ] T.C.C. is unable or unwilling to do what is necessary to establish a safe home for the children. Factor (b): the plan of care [ 73 ] The children currently reside in Ministry approved foster homes. The Ministry’s plan of care is to provide them with permanency.

I understand the means the children will be placed in a permanent home and not remain in a foster home. [ 74 ] As of the date of the continuing custody hearing, the director had not identified any available extended family members who are willing to care for either J.M.J.M. or F.G.M. [ 75 ] The Ministry states in the May 9, 2017 Plan of Care that it is committed to building healthy, lasting relationships between the children and their aboriginal community and heritage. To this end, the Ministry will facilitate continued contact with the children’s family and extended family.

The Ministry will provide the parents with access to the children as it deems safe and appropriate. [ 76 ] The Ministry will engage the children’s aboriginal band and family members to assist in preserving the children’s cultural identity. Factor (c): the child's best interests [ 77 ] I will next analyse each of the factors in s. 4(1) of the CFCSA . Section 4(1)(a): the child’s safety [ 78 ] While in their parents’ care J.M.J.M. and F.G.M. were in a volatile environment beset with domestic violence. Domestic violence renders a home chaotic, dysfunctional and unsafe.

It is in the children’s best interests to be raised in a home free of violence and discord. [ 79 ] The guiding

section 2 principles make it clear that the children’s safety and well-being is the paramount consideration in child protection hearings. Principally, the preferred environment for a child is in the family home, provided the safety and well-being of the child can be met in that home with proper supports. The Ministry has endeavoured to provide those supports without success. Section 4(1)(b): the child’s physical and emotional needs and level of development [ 80 ] J.M.J.M. is two years old and F.G.M. is one.

They need intensive physical and emotional care given their youth and vulnerability. [ 81 ] T.C.C. visited with the children on only one occasion in over two months. This sporadic contact with such young children undermines their ability to bond with their mother. [ 82 ] F.J.M. cannot satisfy the children with the physical and emotional needs because he is in jail. [ 83 ] In the May 9, 2017 Plan of Care, the director has committed to ensuring the children’s educational, medical and dental needs are met.

At the time of the application, the director had not identified any outstanding needs with respect to the children.

Section 4(1)(c): the importance of continuity in the child’s care [84] J.M.J.M. has been in foster care much of her life. F.G.M. have been in foster care all of his life. Section 4(1)(d): the quality of the relationship the child has with a parent or other person and the effect of maintaining thatrelationship [85] Neither J.M.J.M. nor F.G.M. has been in their parents’ care for any appreciable period. J.M.J.M. has been in foster care sinceshe was 7 1/2 months old; F.G.M. has been in foster care since he was 2 months old.

It is unlikely that J.M.J.M. or F.G.M. has developeda deep attachment to either parent. [86] In Director v. A.M. and A.L.D., 2017 BCPC 271 , Judge Gouge, states: [25] Children who spend extended periods in foster care commonly attach to their foster parents, in the same fashion as they did to theirbiological parents. It is emotionally harmful to children to be separated from attachment figures.

If a child who has attached to his fosterparents is returned to his biological parents after an extended period in foster care, the child commonly suffers a second time and enduresa grieving process similar to that which the child suffered on the initial separation from the biological parents. This experience and itssequelae were the subject of a study by an interdisciplinary team at Sainte-Justine Hospital in Montreal, led by Dr. Yvon Gauthier.

Thepublished result of their study is entitled “Clinical application of attachment theory in permanency planning for children in foster care:the importance of continuity of care”, and is found in Infant Mental Health Journal

(2004) Vol. 25(4), pages 379 - 396. Under theheading “Conclusions”, the learned authors wrote: Our work with young children who spend prolonged periods with foster families and who come from highly pathogenic families bringsus back to the origins of attachment theory. Bowlby's initial observations were made on the severe sequelae in adolescence of childrenwho had been early, and often repeatedly, separated from their mothers. Such observations have been corroborated repeatedly in the last30-40 years (Steinhauer, 1991).

Continuity of attachment ties is essential to the global development of a young child and a rupture ofsuch ties is a traumatic event in a child's life with major short-term and long-term consequences. When we developed our consultation, we did not know what kind of problems would be brought to us. We were gradually struck by thefrequency of this issue: permanency of a long-term fostering, or returning to a biological family, usually after several years of suchfostering.

We were constantly reminded that a "child's time" in his crucial early years is much shorter than the "adult's time": a youngchild can't wait for his parents to solve their persistent personality problems, their childhood traumas, their drug abuse and violence. Achild can't be put "on hold". If well cared for in a foster home which is ready to invest in him fully, he is likely to become securelyattached and his development will proceed accordingly.

If a reintegration process is put in place to return the child to his biological family, the child evidently does not understand why the"biological tie" is favored – an incomprehensible concept for a young child – rather than the attachment which he experiences to thecaregivers in the foster family. The child cannot understand why he is separated from the parents that were given to him, and that hesomehow gave himself, through an attachment process which is based on the daily occurrences of infant-parent interactions.

When thisstructure begins to change with the introduction of new living arrangements…, even a secure young child becomes very vigilant andstarts erecting defenses to keep the proximity to his attachment figures, with much suffering. When a child loses his parentscompletely…, the anger-rage response finally takes over. Section 4(1)(e): the child’s cultural, racial, linguistic and religious heritage [87] I understand that T.C.C. is a member of the [omitted for publication] First Nation and F.J.M. is a member of the [omitted forpublication] First Nation.

Both bands have been notified at each stage of these proceedings. J.M.J.M. and F.G.M. are members ofF.J.M.’s aboriginal community, the [omitted for publication] First Nation. Although informed of the director’s application for acontinuing custody order, the [omitted for publication] First Nation Band has not taken a position.

The [omitted for publication] FirstNation has not responded to or participated in any of the child protection proceedings to this point. [88] In the director’s Plan of Care for the children filed May 9, 2017, it states: At this time, no available extended family member [has] been identified who are deemed appropriate and are willing to care for the[children]. MCFD is committed to building healthy, lasting relationships between [the children] and their aboriginal community andheritage. It is the hope of the Ministry that the [children] will . . . have continued contact with family and extended family.

The[children] will continue regular visitation with [their] parents and extended family as deemed safe and appropriate. The Band and familymembers will be called upon to assist in preserving the children’s cultural identity. . . . The director will continue to work with the aboriginal community and consider their recommendations to ensure that such religious,cultural and social activities are made available to the children.

It is hoped that the parents and extended family members will continue toinfluence this area of the children’s [lives] and help ensure participation [in] and understanding of [their] cultural heritage. Section 4(1)(f): the child’s views [89] J.M.J.M. and F.G.M. are still infants and therefore their views have not been canvassed, nor would it be appropriate to do so.

Section 4(1)(g): the effect on the child if there is delay in making a decision [90] The CFCSA places considerable importance on kinship ties and existing attachments to biological parents, and emphasizes theimportance of a family environment for a child. J.M.J.M. and F.G.M.’s life with F.J.M. and T.C.C. was too brief and unstable for thoserelationships to flourish.

[91] Since the children were removed from their parent’s care, there has been little progress on the parents’ maintaining a safe andstable home for the parents. The children need stability and permanency in their caregivers. Findings [92] With the history provided in the materials filed in these proceedings and upon hearing social worker Maureen Olson, I find: a. J.M.J.M. was in need of protection at the time of her removal; b.

F.G.M. was in need of protection at the time of his removal; c. there is no significant likelihood that the circumstances that led to the J.M.J.M.’s removal will improve within a reasonabletime; d. there is no significant likelihood that either T.C.C. or F.J.M. will be able to meet J.M.J.M.’s needs; e. there is no significant likelihood that the circumstances that led to F.G.M.’s removal will improve within a reasonable time; and f. there is no significant likelihood that either T.C.C. or F.J.M. will be able to meet F.G.M.’s needs. [93] In concluding, there is no significant likelihood that the circumstances that led to the J.M.J.M. and F.G.M.’s removal willimprove within a reasonable time.

I took guidance from s. 45 of the CFCSA. Section 45(1.1) allows the court to apply a “best interestsof the child” test in determining “reasonable time.” It gives a guideline of 12 months as the reasonable total period of time any childunder the age of five should be under the temporary custody of the Director. J.M.J.M. was removed from her parents’ care on April 7,2016. On May 24, 2017, Judge Jackson made an interim custody order with respect to J.M.J.M. and on July 12, 2016, Judge Birniemade a temporary custody order. F.G.M. was removed on September 21, 2016.

On October 11, 2016, Judge Birnie made an interimcustody order with respect to F.G.M. and on November 22, 2016, Judge Jackson made a temporary custody order. [94] J.M.J.M. has been in the temporary care of the director now for over a year and F.G.M. has been in the temporary care for thedirector for almost one year. [95] Upon considering the director’s plan of care for and their best interests, I order that J.M.J.M. and F.G.M. remain in thecontinuing custody of the director. Access [96] In the past F.J.M. and T.C.C. were entitled supervised visits with the children at the discretion of the director.

With respect toaccess to the children, the director has stated in the May 9, 2017 Plan of Care: The director has encouraged parents and extended family to have visits at the discretion of the director. Access will continue whilstpermanency options are explored. All attempts will be made to incorporate an element of openness to any arrangements that are made. [97] The authority for this court to grant access to a parent, once a continuing custody order has been made, is given in

Section 56 ofthe CFCSA, which reads in part as follows: Access to child in continuing custody of director 56

(1) If a continuing custody order is in effect, a parent or any other person may apply to the court for access to the child.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on (

a) the child, if 12 years of age or over, (

b) the director, and (

c) the parties to the proceeding in which the continuing custody order was made.

(3) The court may order that the applicant be given access to the child if access (

a) is in the child's best interests, (

b) is consistent with the plan of care, and (

c) is consistent with the wishes of the child, if 12 years of age or over. [98] In determining whether or not such an order is in the children’s best interests the Court must consider those factors set out in s.4 of the CFCSA. In considering how these sections of the CFCSA are to be applied, the British Columbia Court of Appeal set out thefollowing principles in A.M. v. Director of Child, Family and Community Service, 2008 BCCA 178 as referenced in J.L.F. v. Director,2010 BCPC 17 , at para. 23 a. When a continuing custody order is made, parents lose the right of access to the child.

Access then becomes a right of the childand not of the parent (paras. 26 & 27). b. An order for access may exist alongside a continuing custody order (para. 28).

c. Where a continuing custody order exists, an order for parental access is the exception, not the rule (para. 29). d. The principle of preserving family ties should only be a consideration in granting access, where a continuing custody order has been made, if it is shown to be in the best interests of the child, having regard to all relevant factors, including the security or health of the child (paras. 29 & 30) . e. An adoption which is in the best interests of a child who is the subject of a continuing custody order must not be hampered or jeopardized by the existence of a right of access (para. 29 - 31). f.

Access to a child who is the subject of a continuing custody order should not be granted if its exercise would have negative effects on the physical or psychological health of the child (para. 29 & 30). g. Any access which is ordered for such a child must be consistent with the child’s plan of care (para. 21). h. These principles are binding on the Provincial Court in considering whether to make an access order in favour of a biological parent where the plan of care is for adoption.

It is an error of law if a judge fails to exercise his or her discretion guided by these principles (para. 32 & 33). [ 99 ] Neither F.J.M. nor T.C.C. attended the hearing of the director’s application for a continuing custody order. In the absence of a specific request for access, I decline to make an order for access pursuant to s. 56(3) of the CFCSA .

Summary [ 100 ] In

summary, I find that both J.M.J.M. and F.G.M. were in need of protection at the time they were removed. There is no likelihood the circumstances that led to their removal will improve within a reasonable time and there is no significant likelihood the parents will be able to meet the children’s needs. Accordingly: a. I order J.M.J.M., born [omitted for publication] , be placed in the continuing custody of the director, pursuant to section 49(5) of the CFCSA ; and b. I order F.G.M. be placed in the continuing custody of the director, pursuant to section 49(5) of the CFCSA ; and c.

I make no order for T.C.C. or F.J.M. to have access to J.M.J.M. or F.G.M. “Judith Doulis” __________________________ J. T. Doulis Provincial Court Judge