Director v. J.W. and C.H., 2021 BCPC 338

Citation: Director v. J.W. and C.H. 2021 BCPC 338 Date: 20211220 File No: F23132 Registry: Surrey 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: N.J.H. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: J.W. RESPONDENT C.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Director: Jennifer A. Rowbotham Counsel for Respondent J.W.: Stanley Foo Counsel for Respondent C.H.: No one appearing for Respondent C.H.

Counsel for the Child: Donald F. Porter Place of Hearing: Surrey, B.C Dates of Hearing: November 1, 2, 3, 5, 8, 9, 10, 12, 2021 Oral Judgment Delivered: November 12, 2021 Written Judgment Issued: December 20, 2021 INTRODUCTION

[ 1 ] This is an application by the Director of Child, Family and Community Service (the “Director”) for an order (the “CCO”) under s. 49(10)(

a) of the Child, Family and Community Service Act, [ RSBC 1996]

Chapter 46 ( the “ CFCSA ”), placing the child N.J.H. (“NJH”), born [omitted for publication], in the continuing custody of the Director .

The Director asks that, prior to making the CCO, the court find, pursuant to s. 40(1) of the CFCSA , that NJH was in need of protection at the time of his removal on July 19, 2017 from the care of his mother, J.W. (the “Mother”). [ 2 ] The Mother opposes the Director’s application for the CCO. [ 3 ] The trial in this matter was held from November 1 to 12, 2021. [ 4 ] As the parties were anxious to learn the outcome of the trial, I delivered an oral judgment on November 12, 2021, immediately after the conclusion of the trial, with written Reasons to follow.

These are the Reasons for the judgment I delivered on November 12, 2021.

BACKGROUND [ 5 ] NJH is currently [omitted for publication] years of age and was almost [omitted for publication] years of age when he, along with his siblings, J.R.H. (“JRH”), born [omitted for publication], and T.J.H. (“TJH”), born [omitted for publication] (collectively, the “Children”), were removed from the Mother’s care on July 19, 2017. [ 6 ] The Mother has been involved with the Ministry of Children and Family Development (the “MCFD”) for a number of years due to concerns surrounding the Mother’s drug use, domestic violence, lack of stable housing, and transiency. [ 7 ] NJH’s and JRH’s biological father is C.H. (the “Father”), but he has not engaged with MCFD or in any legal proceedings relating to NJH. [ 8 ] TJH’s biological father is R.H., and he too has been an absentee father.

ISSUES [ 9 ] The issues to be determined in this case are as follows: 1. Was NJH in need of protection at the time of his removal from the Mother on July 19, 2017? 2. Should NJH be placed in the continuing custody of the Director or be returned to the Mother? THE LAW [ 10 ] I have set out the relevant provisions of the CFCSA in

Schedule A to these Reasons. [ 11 ] I will refer to any applicable case law in my discussion. EVIDENCE [ 12 ] The following people testified on behalf of the Director: (

a) Social worker Aneesha Nijjar, present family service social worker; (

b) Social worker Alyssa Graeme, present child service / guardianship social worker; (

c) Social worker Cassandra McMurdo, previous family service social worker; (

d) Social worker Sarah Proctor, previous family service social worker; (

e) Dr. Anne Fedorowicz, psychologist at the HEAL clinic (Fraser Health’s Suspected Child Abuse and Neglect Team at the Surrey Memorial Hospital); and (

f) Michael Collins, behavioural consultant with Tipping Point Counselling and Consulting Services Inc. (“Tipping Point”). [ 13 ] All parties agreed, and the court accepted Dr. Fedorowicz as an expert in assessing and diagnosing children and adolescents for clinical disorders, and in the area of child forensic psychology. [ 14 ] The Mother testified on her own behalf. [ 15 ] Documents, including the Director’s book of documents, were entered into evidence. [ 16 ] I reject the Mother’s sweeping assertion that the social workers who testified and the Director’s counsel lied to the court.

The Mother expressed extreme hostility towards MCFD and constantly blamed them for, as she put it, “tearing her family apart.” However, I did not find any of the witnesses to be intentionally misleading the court in any way. I have no concerns with the reliability of their evidence. I found the Director’s counsel to be highly professional, contrary to the Mother’s expression of contempt. [ 17 ] I will now turn to the issues at hand. DISCUSSION Was NJH in need of protection at the time of his removal from the Mother on July 19, 2017?

[ 18 ] The Director removed the Children on July 19, 2017 pursuant to s. 30 and on the circumstances described in the following sections of the CFCSA : s. 13(1)(c) – the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and the child’s parent is unwilling or unable to protect the child; s. 13(1)(d) – the child has been, or is likely to be, physically harmed because of neglect by the child’s parent; and s. 13(1)(h) – the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; on the basis that the Director had reasonable grounds to believe that the Children needed protection and that no other less intrusive measures were available to adequately protect the Children.

The Director was also of the view that there were reasonable grounds to believe that the Children were living in a situation where there was domestic violence by or towards a person, namely the Mother, with whom the Children were residing. [ 19 ] For the purposes of s. 13(1) (c), s. 13(1.2) of the CFCSA states that the likelihood of physical harm to the child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides. [ 20 ] The Form A Report to the Provincial Court of British Columbia (the “Form A”), filed by the Director, describes the circumstances that caused the Director to remove the Children.

It states in part as follows: • Metis Family Service (MFS) and the Ministry of Children and Family Development (MCFD) have been involved with J.W. (“Ms. W.”) as a parent since TJH (“T.”) was born in [omitted for publication]. T. was removed at birth due to concerns of drug use by Ms. W. and domestic violence between her and her partner. T. was returned to Ms. W’s care in 2003, and since this time MCFD and MFS have had ongoing reports regarding Ms.

W.’s drug use, domestic violence, conditions of the home, transiency and verbal aggression towards others. • On April 5, 2017 a report was received regarding concern for Ms. W.’s three (3) children N.H. (“N.”), J.H. (“J.”) and T. The report indicated that T. was involved in a party at the family home where there was drinking and drug use, and that an unknown male friend of Ms. W.’s jumped into bed with T. • On April 21, 2017 a further report was received regarding Ms.

W. doing drugs, and exposing her three children N., J. and T. to a man named “D.” who is an active crack cocaine user, heavy drinker, and alleged sex offender. Ms. W. denied any drug use and no disclosures were made by the children regarding sexual abuse. • On May 13, 2017 a report was received regarding a domestic dispute that occurred between Ms. W., Ms. W.’s mother D.W., and Ms. W.’s brother J.W. All three (3) children were present during this physical altercation. As a result of this incident, Ms. W. agreed to have no contact with D.W., that she would not return to D.W.’s home, and Ms.

W. moved to a transition home with all three (3) children. • On June 13, 2017 a report was received that Ms. W. was ‘homeless’ and does ‘rails of cocaine’. • On June 20, 2017 MFS was informed that Ms. W. had been kicked out of her transition house due to not following the curfew and rules, and that there was suspicion that she was using drugs. Social Worker Romona Jaswal spoke with Ms. W., and Ms. W. disclosed that her drug of choice was cocaine and that she last used the previous day, but it was “not an everyday thing”. A safety plan was agreed to by Ms.

W. on this date, where she agreed that the children, T., N. and J., would reside with family friends, K.T. (“Ms. T.”) and B.W. (“Mr. W.”). It was noted on the safety plan that failure to follow the safety plan may result in the Social Worker taking more intrusive action including removal. • On June 29, 2017 Social Worker Romona Jaswal met with Ms. W. to discuss planning for the children, and Ms. W. disclosed that she used drugs for “2-3 days straight” after the children were safety planned out of her care. • On July 6, 2017 Ms.

W. disclosed to Team Leader Juan Franco and Social Worker Romona Jaswal that she relapsed again on July 4, 2017 after hearing that her son T. was in the hospital. Ms. W. also stated she did not have stable housing, but had some prospects of places she thought she could move to. • On July 14, 2017 a report was received that Ms. W. had assaulted her boyfriend M.P. (“Mr. P.”) and stole his car. Mr. P. confronted Ms. W. about the stolen care [ sic ], and pepper sprayed her. Ms. W. responded by getting into the vehicle and “drove into him” before leaving. Mr.

P. was seen by hospital staff, and it was further reported that he was a drug dealer and Ms. W. uses “meth and crack”. • On July 18, 2017 a report was received that Ms. W. attended the home of Ms. T. and Mr. W., where N. and J. were residing under a safety plan. While in the residence, a domestic altercation took place between Ms. W. and Mr. W., which both J. and N. were present for. Ms. W. then left the home with both children, which was a violation of the safety plan signed on June 13, 2017. • On July 18, 2017 another report was received which stated that Ms.

W. had left J. and N. alone in the vehicle with D.T. (“Mr. T.”), who had a no contact order with Ms. W. due to an assault which occurred the previous week and that Mr. T. is a “known pedophile”. It was also noted in the report that Ms. W. was seen “chopping up a rail”, referring to drug use, and that a further physical altercation occurred where Ms. W. slapped someone when the children were present. [ 21 ] These reports led to the removal of the Children on July 19, 2017.

Initially, the Children were placed at group homes, but later JRH and NJH were transferred to the foster home where NJH has been residing as at the date of this trial. Due to some concerns the foster parents had with JRH, she was subsequently transferred to another placement. [ 22 ] The Mother challenged the accuracy of some of the statements in the Form A. She said D.T. was a good friend, and not a

pedophile, and that the “unknown male” referenced above was a friend and he was dressed when he jumped onto the bed to play video games with TJH. However, she agreed that the Children witnessed the altercations between her and her mother and brother, and between her and Mr. W. She also agreed that she relapsed in late June and early July 2017.

Although she had an explanation for why she was asked to leave the transition home, she acknowledged that she did not have stable housing at that time. [ 23 ] NJH’s counsel noted, and I agree, that regardless of the accuracy of all of the information in the Form A, there is no question that the Children were living in a situation where there was domestic violence by, and towards, the Mother. That in itself put them at increased likelihood of physical harm. There is also clear evidence that the Mother had relapsed and did not have stable housing.

Therefore, I am satisfied that, as at the date of the Children’s removal on July 19, 2017, there were reasonable grounds to conclude that the Children had been, or would likely have been, physically harmed because of the Mother’s neglect, or her inability to care for them or make adequate provision for their care. [ 24 ] In light of the evidence before me, I find that pursuant to s. 40(1) of the CFCSA , NJH was in need of protection at the time of his removal on July 19, 2017. [ 25 ] I will next turn to whether the CCO the Director seeks should be granted, or whether NJH should be returned to the Mother, as the “parent apparently entitled to custody.” The parties agree that the Mother is the parent entitled to custody of NJH.

Should NJH be placed in the continuing custody of the Director, or be returned to the Mother? [ 26 ] In answering this question, I must first consider the three factors set out in s. 49(6) of the CFCSA , namely: (

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. [ 27 ] In considering the best interests of the child, I must consider the factors set out in s. 4 of the CFCSA . I must also keep in mind the guiding principles set out in s. 2 of the CFCSA , with the paramount considerations being the child’s safety and well-being. [ 28 ] I will first provide a brief

summary of the events relevant to the CCO application, and then discuss the applicable legislative factors.

Events relevant to the CCO application [ 29 ] Since the Children’s removal on July 19, 2017, the Director has attempted to work with the Mother to address the child protection concerns, in the hopes of returning the Children to her. [ 30 ] The Director says that soon after the Children’s removal, the Mother never engaged in alcohol and drug counselling, with the exception of one intake session. [ 31 ] In consultation with the Mother, a Family Plan was put in place on October 6, 2017 for the Mother to address the child protection concerns. This plan included the following expectations by the Director: (

a) the Mother was to engage in alcohol and drug counselling, develop a relapse prevention plan, and attend random drug screens, with the goal of addressing her illegal drug use; (

b) the Mother was to find and maintain a stable residence; and (

c) the Mother was to attend her visits with NJH, and engage in a parenting program. [ 32 ] However, in October and early November 2017, the Mother failed to complete drug testing. She was again asked to complete drug testing in 2018. In May 2018, she tested positive three times for cocaine. [ 33 ] TJH was not doing well in his placements. In spite of the Director’s efforts to assist him, he returned to the Mother’s care on his own volition.

Therefore, on June 7, 2018, the Director returned TJH to the Mother’s care under a supervision order. [ 34 ] The Director continued to work with the Mother in an effort to assist her in addressing the child protection concerns. [ 35 ] In March 2019, the Mother prepared a relapse prevention plan. She attended some alcohol and drug counselling prior to the COVID-19 pandemic (which began in March 2020). After that, she was not interested in attending virtual counselling sessions. [ 36 ] The Mother did not communicate well with, or diligently engage in services offered by, the Director.

She also had difficulty maintaining consistent visitations with NJH, and meeting the Director’s expectations regarding addressing the child protection concerns. [ 37 ] Similar to TJH, JRH was also not doing well in her placements. She was displaying self-harming behaviours. JRH suffers from a number of mental health issues, including depression and anxiety, and was recently diagnosed with bipolar disorder. JRH also returned to the Mother on her own volition, and has been living with her since January 2020.

On January 30, 2021, the Director returned JRH to the Mother’s care, and withdrew from court proceedings relating to JRH. [ 38 ] In or around February or March 2020, NJH disclosed to his foster parents, and subsequently to his social worker and the police, that his half-brother TJH had sexually abused him when he was about seven years of age. In this respect, the Director’s counsel said: N. described being sexually abused by his brother multiple times over several weeks when T. was left alone with N. The disclosures

included T. tying up N.’s hands and feet; penetrating N.’s butt hole with his penis (i.e. anal intercourse); and T. sucking N.’s penis and demanding N. to do the same to him. N. disclosed that T. would threaten to hurt him if N. yelled for T. to stop or tried to escape. The abuse stopped when T. broke his leg.

N. also disclosed that he told his mother what happened and T. didn’t receive Christmas gifts that year. [ 39 ] I will refer to the alleged sexual abuse of NJH by TJH as the “Subject Abuse.” I say “alleged” because TJH was recently charged with the offence of sexual assault against NJH, but TJH has not yet been convicted of this offence. On August 5, 2021, TJH was placed on an undertaking not to: (1) communicate, directly or indirectly with NJH, or (2) go to any residence, workplace, school or place of worship of NJH. [ 40 ] The Mother denied that NJH disclosed the Subject Abuse to her.

She said the reports in evidence contain inaccurate information regarding this disclosure, and that if she had known about the Subject Abuse at that time, she would have taken immediate steps to address the situation. She was devastated when she learned about it, as she knows first-hand the trauma it can cause, as she too was sexually abused by her brother. [ 41 ] The revelation of the Subject Abuse, among other things, led the Director, in June 2020, to apply for a CCO pursuant to s. 49(10) of the CFCSA . [ 42 ] NJH has many positive attributes, but he also struggles with some challenges.

Since he has been in the Director’s care, he has been assessed by, and has been receiving care from, a number of medical professionals. [ 43 ] Due to NJH’s disclosure of the Subject Abuse, NJH was referred to Dr. Fedorowicz for a psychological consultation. The consultation took place on September 23, 2020, and Dr. Fedorowicz’s consultation report is in evidence. In her report, at p. 2, Dr. Fedorowicz explains the purpose of the consultation as follows: N. was referred to the HEAL Clinic due to a disclosure of sexual abuse in March 2020, by his half-brother, T.

There has been an escalation in emotional and behavioural dysregulation since the disclosure. There are also previous allegations of exposure to domestic violence and substance abuse, which resulted in N.’s apprehension in the Fall of 2017. The purpose of this consultation was to determine the nature of the child’s therapeutic needs and to make recommendations for intervention. [ 44 ] Dr. Fedorowicz’s report, at pages 17 to 20, details the recommendations she made. [ 45 ] On October 8, 2020, in consultation with the Mother, another Family Plan was put in place including the following further expectations: (

a) the Mother was to engage in counselling to address domestic violence in her relationships; and (

b) the Mother was to follow through with restorative justice measures for TJH and follow recommendations from the police and crown counsel; put NJH’s needs first when considering reconciliation with TJH; engage in support services to process the family’s trauma related to the sexual assault of NJH by TJH. [ 46 ] After Dr. Fedorowicz’s consultation, NJH was referred to Tipping Point. The intake for this referral was made on October 20, 2020. Mr. Collins’ report is in evidence. At p.1 of his report, Mr.

Collins says: Reason for Referral: NH was initially referred to Tipping Point by Allysa Graeme, Metis Family Services Social Worker. It was felt that NH would benefit from counselling support as his relationship with his previous counsellor had come to an end and NH required ongoing psychotherapy supports to address past trauma and the challenges of not living with his mother. [ 47 ] Mr. Collins has been providing behaviour consultation to NJH from about May or June 2021. [ 48 ] I will now turn to the legislative factors I must consider.

Legislative factors [ 49 ] As I said earlier, in making any order under the CFCSA , the court must be guided by the principles set out in s. 2 and the factors relating to the best interests of the child set out in s. 4 of the CFCSA . The safety and well-being of children are the paramount considerations under the CFCSA .

Of particular significance in this case are the following principles and factors: • s. 2(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; • s. 2(c) – if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; • s. 2(d) – the child’s views should be taken into account when decisions relating to a child are made; • s. 4(d) – the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; and • s. 4(f) – the child’s views. [ 50 ] Keeping the guiding principles in s. 2 and the factors in s. 4 in mind, and after considering the factors in s. 49(6) of the CFCSA , I

am satisfied that the evidence in this case does not support making the CCO that the Director seeks. I conclude that, pursuant to s. 49(10) (

b) of the CFCSA , NJH must be returned to the Mother, being the parent apparently entitled to custody, for the reasons I discuss below. S. 49(6)(a) – The Mother’s past conduct towards a child in her care: [ 51 ] There is no denying that the Mother has had a history of not caring for the Children adequately. As I have already discussed, the years 2017 to 2020 were particularly challenging for her.

However, the evidence is abundantly clear that the Mother has always deeply loved and cared about the Children, although she could not adequately care for them during those challenging years. [ 52 ] Even while she was in the thick of grappling with her substance misuse and finding stable housing, TJH returned to her on his own accord in 2018, rather than being in the Director’s care; and JRH also returned to the Mother on her own accord in January 2020. TJH was safe while he lived with the Mother. JRH also appears to be safe in the Mother’s care. [ 53 ] Both TJH and JRH suffer from mental health issues.

TJH suffers from ADHD (Attention Deficit Hyperactivity Disorder) and ODD (Oppositional Defiant Disorder), and as I already noted, JRH suffers from bipolar disorder. Even though the Mother also suffers from anxiety, trauma and other mental health issues, she has managed to care for TJH and JRH, and keep them safe and well.

She seems capable of raising children with a range of special needs, which will serve her well in managing NJH’s special needs. [ 54 ] Although the evidence indicates that JRH did not attend school on a regular basis for about a year, that cannot be attributed to the Mother being inattentive or neglectful. It appears that a lot of it had to do with JRH’s mental health issues.

I understand they have since stabilized, and JRH is in a healthier state. [ 55 ] Although the Mother appears to have had significant difficulty over the years in communicating with, engaging in the services the Director offered, and meeting the Director’s expectations towards addressing the child protection concerns, she has managed on her own to address the substance misuse, unstable housing and domestic violence concerns the Director had. [ 56 ] The Mother came across as a strong-willed person, who can accomplish anything she puts her mind to.

This became evident, as I discuss below, in how she has managed to stay clean and sober for lengthy periods, secure stable housing, find gainful employment, rid herself of negative partners, and surround herself with positive supports. [ 57 ] Regarding her substance misuse, the Mother said she got clean in or around 2002, when she learned that she was pregnant with TJH. She was clean until she relapsed in 2017. She admitted that she used drugs off and on between 2017 and 2019. She attended a daytox program, completing 46 of the 50 hours required.

She preferred to attend alcohol and drug counselling on a “drop-in” basis, rather than according to a set schedule, in light of all the challenges she was facing in her life, including looking for a job and housing, and dealing with JRH’s mental health issues. [ 58 ] She has been dogged in getting herself clean. She prepares a relapse prevention plan every six months to keep her on the right track, even though she has not shared these plans with the Director.

Her relapse prevention strategies include calming her mind and body through meditation and yoga, accessing alcohol and drug counsellors as needed, and attending Narcotics Anonymous sessions as needed. [ 59 ] She has been clean and sober for the past two years. She had her “two-year cake” on August 7, 2021. [ 60 ] When questioned about her mental stability and her past conduct, she said she has never been certified under the Mental Health Act , [ RSBC 1996]

Chapter 288 , and she does not have a criminal record. She does not have a “significant other” either. However, she is open to seeking trauma counselling for herself and NJH to help them heal from past trauma and move forward. [ 61 ] The Mother is now employed. She works at Lookout Housing & Health Society (“Lookout”) and RainCity Housing and Support Society, as a community addictions support worker. Prior to this, she worked at Atira Women’s Resource Society (“Atira”) as a family support worker. She provided crisis line support.

She said the training and experience she has gained from these jobs have assisted her tremendously in dealing with her own issues. By telling her story, she has helped herself and others. Most of the women she helped were from the Downtown Eastside, and in the last two months, she helped two women get housing and their children back. [ 62 ] She said, “I have come a long way. I am proud of myself for the first time. It blows my mind that I am a support worker. I have learned a lot through helping others.

I have learned a lot about trauma in the last year – how kids go through trauma and how it affects them.” [ 63 ] She admitted her brother sexually abused her, and that she could never understand how her mother could have ignored what happened to her. She said if she had known about the Subject Abuse sooner, she might have been able to help both TJH and NJH. She said she wants to break the “chain of crap” and do what is best for her and her Children. [ 64 ] She had a philosophical approach to the challenges, including the sexual abuse and the domestic violence she has faced in her life.

She said, “there is a purpose why I have been through all these troubles.” She intends to go back to school to get a degree in social work. She has lofty goals of founding a not-for-profit organization called “People Helping People” with the hope of helping people affected by violence and abuse. [ 65 ] When questioned whether she would be agreeable to releasing information from the counsellors she has attended, she said, “yes,” but she was emphatic in saying “we should focus on who I am today, and not who I was.

I am tired of being punished for who I was.” I certainly understand her plea. [ 66 ] It is important to note that the Director now does not have any concerns with the Mother regarding substance misuse, domestic violence, or stable housing. The only current concern for the Director is the Mother’s ability to care for NJH and ensure his safety and well-being.

S. 49(6)(b) – Plan of care for NJH: [ 67 ] The Director’s plan of care for NJH is for him to remain in the Director’s care, while the Director explores family and other permanency options for NJH. [ 68 ] In the Director’s Care Plan that commenced September 1, 2021, it states at p. 10: N. has stated that although he loves his current caregivers, he wants to go back to living with his mom. [ 69 ] The Mother, of course, wants NJH to be returned to her custody, and was actively getting her house ready with the hope of receiving NJH. She has a three-bedroom home in which she has been living since November 2020.

There is a high school within walking distance of her home. The plan is for NJH to attend this school. She discussed this with NJH, and his response was, while he will miss his friends in Surrey, the move would be “worth it,” and “it is not like he will not be able to see them.” [ 70 ] The Mother understands the need for structure, routine and consistency for NJH. She said she will try to maintain his current routine, with her “spin” on it, and will ensure NJH attends school.

She gave detailed examples of how she would provide this structure, routine and consistency for NJH. [ 71 ] The Mother said JRH and NJH have always been close, and JRH is very excited to have NJH come home. JRH would be there to help NJH. JRH is doing very well in terms of managing her mental health issues and her schoolwork. She has the necessary supports in place. [ 72 ] The Mother’s sister lives across the street from the Mother, and the sister is a great support for the Mother, NJH and JRH.

Although the Mother is not very close to her own mother, the grandmother also lives nearby if NJH or JRH need any assistance. The Mother also has a few close friends, who are available to assist the Mother and the Children, if they need any help. [ 73 ] The Mother said the last four years working with MCFD has not gone well for her. She wants stability, normality, and routine for her and her family. She is eager to have fun with her Children and make memories. S. 49(6)(c) – Best interests of NJH: S. 4(1)(a) – NJH’s safety [ 74 ] The Mother assured the court that her home is a safe place.

She said TJH’s presence in her home was a major concern for the Director, but TJH, knowing and understanding the concerns, has, on his own accord, moved out of her home effective November 1, 2021. She said any remaining personal belongings of TJH will be taken to the dump, and that there is no reason for TJH to return to the home. TJH did not resist this move. He has always supported her.

She said TJH would not do anything that might jeopardize NJH coming home. [ 75 ] In the unlikely event that TJH attempts contact with NJH against her wishes, the Mother has a safety plan, which includes calling the police. [ 76 ] The Mother said she has discussed this issue with NJH many times, and he has told her that he loves his brother, he has forgiven him, he is not afraid of him, and that he is just sad. [ 77 ] NJH also told Mr. Collins that what TJH did to NJH was “shit,” NJH is no longer afraid of or intimidated by TJH, and NJH is not a small kid any more. Mr.

Collins said that NJH understands that the “sexual assault cannot happen again.” [ 78 ] When questioned about any child protection concerns about the Father, the Mother said she has known the Father for about 17 years, he is unreliable, he is not on time, he lacks effective communication skills, he does not answer his phone, but there are no child protection concerns regarding him. S. 4(1)(b) – NJH’s physical and emotional needs and level of development [ 79 ] Dr. Korn who examined NJH described him as a tall and healthy young man. [ 80 ] The reports of Dr. Fedorowicz and Mr.

Collins shed some light on NJH’s emotional needs and the level of his development. [ 81 ] In Dr. Fedorowicz’s report: (

a) At p. 7 – Asked about [NJH’s] predominant mood, . . . reported that [N.] has struggled with anxiety and sadness since coming into care. (

b) At p. 9 – [N.] also struggles with low mood, exhibiting sadness, withdrawn behaviour, and hopelessness. He cries easily, particularly regarding his mom and his family situation, and he always worries about visitation with mom. (

c) At p. 11 – [N.] reported that he was a happy and sad kid. He explained that he was happy when he was with his mom and his family, played sports or video games, and when he was with his friends. He reported being sad not being with his mom. When sad, he reported that he would hurt himself, such as hitting himself with pillows or hitting his head against the wall. (

d) At p. 11 – Asked about worries, [N.] reported that he worries about his mom and not being able to go back into her care. . . . When asked about mad feelings, [N.] reported that he did not get made easily, apart from people trying to hurt his mom, family, himself, or people he loves. (

e) At p. 13 – [N.] denied any worries or intrusive thoughts about the sexual abuse. He clarified that he worried back then, and he

had random nightmares. However, he felt safe around [T.] because his mom was there. He denied any current problems with traumatic memories, avoidance or hyper arousal. However, his recollection of the abuse was observed to be pressured and intense, like a release of withheld information. (

f) At p. 13 – In contrast to the abuse being an issue for him, [N.] reported that his biggest problem was wanting to go back to mom’s house, and not knowing why he couldn’t return there. He claimed that he didn’t know why he was living with Joeybeth, stating the Ministry did not want him to go back to his mom’s house. (

g) At pp. 15-16 – There is a desperation with [N.] to connect with his mother, to the point that he denies or minimizes the risks to himself, or the challenges his Mom has had with parenting. He shows an insecure attachment with his mother, reflecting the unpredictability of his home environment, prior to coming into care. These are risks to a child’s emotional well-being, when negative experiences, feelings and thoughts are denied. [ 82 ] In Mr. Collins’ report: (

a) At p. 1 – . . . NH required ongoing psychotherapy supports to address past trauma and the challenges of not living with his mother. (

b) At p. 1 – He has a deep attachment to his family and longs to live with them. (

c) At p. 1 – . . . [NJH] was experiencing heightened behavioural challenges in school, which included taunting and bullying others on the playground and some sexually intrusive behaviours (collectively, the “Concerning Behaviours”). (

d) At p. 2 – One of the key treatment concerns outside of NH’s dysregulated autonomic nervous system is the fact that he has complicated attachment injuries. This impacts NH on multiple levels as he seeks to know how to gain attention and feel secure attachment to significant people in his life. Within a typical trauma sequela, individuals can struggle to feel and establish a sense of secure foundation from which they can experience stability, nurture and support.

NH has a deep longing to be reconnected with his family and struggles to experience positive relationships outside of the familial context for which he most longs. [ 83 ] The evidence indicates that in his interactions with Mr. Collins, NJH expressed awareness of the nature of his Concerning Behaviours. Mr. Collins explained that if NJH was confronted with someone who is as, or more, confident than NJH, he will back off, and that NJH is not a danger to everyone he might encounter. He is becoming more aware of, and is learning, how to deal with others.

NJH’s counsel pointed out that NJH’s own circumstances reduce the risk of harm to him. [ 84 ] I note that Dr. Fedorowicz assessed NJH on September 23, 2020 and completed her report by November 20, 2020. She did not have the benefit of NJH’s disclosure to Mr. Collins about him not being afraid of TJH any more or his awareness regarding the Concerning Behaviours, as NJH did not start working with Mr.

Collins until about May or June 2021. [ 85 ] The Mother said she is concerned about NJH’s Concerning Behaviours, but she will do everything she can to support NJH and supervise him adequately, so that he does not pose a danger to himself or others. [ 86 ] Fortunately, the Mother’s circumstances have improved significantly in the last two years in terms of her housing, job and finances. With the training and experience she has received from her jobs with Atira and Lookout, she claims to have more insight into, and awareness of, the trauma and its effects on people who suffer from violence and abuse.

She is in a healthier state, and feels better equipped to deal with any physical, emotional or safety needs of NJH. [ 87 ] She is eager to continue with any medical, counselling, and behaviour consultations necessary to ensure NJH’s ongoing physical and emotional needs. She is also eager to getting counselling to address the trauma she has suffered. She understands the need for her to be healthy to be able to assist others. S. 4(1)(c) – Importance of continuity in NJH’s care [ 88 ] The Mother cared for NJH from his birth in August 2008 until he was removed in July 2017.

From July 2017 until the last day of the trial, approximately four years and four months, NJH has been in the same foster home. [ 89 ] The Mother acknowledged that the foster parents have done well for NJH, and that NJH has never said anything negative about them. [ 90 ] However, the Mother says she has come a long way in the last few years, and she will do whatever it takes to do what is best for NJH. [ 91 ] Given NJH’s strong desire to return to the Mother, and the fact that the Mother cared for NJH for the better part of his life, I am satisfied that it is important to maintain the continuity in NJH’s care by the Mother.

S. 4(1)(d) – Quality of NJH’s relationship with the Mother or other person and effect of maintaining that relationship [ 92 ] The evidence is clear that NJH has a very close and loving relationship with the Mother. The following passages confirm this sentiment: [ 93 ] In Dr. Fedorowicz’s report: (

a) At pp. 6-7 – Asked about [NJH]’s relationship with his biological mother, . . . reported that [NJH] loves his mom very much. He is very protective of her and worries about her well-being. At times, he is desperate to return to her care. He worries about her dying and feels like he needs to take care of her. [NJH] idealizes [ sic ] his mom, blaming both himself and the MCFD for his apprehension. He has expressed the belief that it is “his fault” that he has not been returned to his mother’s care.

(

b) At p. 13 – . . . Asked to describe his mom, he reported that she was beautiful, awesome, kind, caring, loving, and she had a good sense of humour. He reported that he liked everything about her, and denied wanting to change anything about her. He described their relationship as “really good.” [ 94 ] The evidence indicates that NJH became distraught and displayed negative behaviours when his contacts with the Mother were delayed or cancelled. He became anxious around the time of his visits with the Mother.

I heard ample evidence about NJH’s anxiety over this trial, and its potential outcome. [ 95 ] I am of the view that it is critically important to maintain the close bond and relationship between NJH and the Mother for NJH’s emotional well-being.

S. 4(1)(e) – NJH’s cultural, racial, linguistic and religious heritage [ 96 ] The Director’s Plan of Care indicates that the Mother and Father identify as Caucasians; NJH enjoys attending church with his caregivers; NJH is baptized as a Christian; TJH is Metis on his father’s side; although NJH does not identify as Metis, he is interested in the culture and is connected with an Aboriginal worker at school; and NJH enjoys drumming. [ 97 ] The Mother testified that she is more spiritual than religious. She respects, and would support, NJH’s wishes regarding his cultural and religious heritage.

She has already talked to the church that is two blocks from her home, and NJH can attend that church. She would facilitate NJH to continue to attend his current church youth groups.

S. 4(1)(f) – NJH’s views [ 98 ] The Mother wants what is best for NJH, and she would support whatever NJH wants. [ 99 ] She said she asked NJH whether he wants to continue to stay in foster care, as she may not be able to provide all the extra- curricular activities, the counselling, and other programming that he is currently engaged in, to which NJH apparently responded, “I don’t care; I just want to come home; stop asking me, mom.” [ 100 ] I have no doubt that NJH wants to go home to the Mother. The evidence of the social workers, Dr. Fedorowicz, Mr.

Collins, the Mother, and others, including NJH, referenced in the Director’s book of documents, make NJH’s views abundantly clear that he wants to go home to the Mother. S. 4(1)(g) – Effect on NJH of any delay in making a decision [ 101 ] I have no doubt any delay in making a decision in this matter would have had a detrimental effect on NJH.

That is why I gave an oral judgment immediately upon the conclusion of the trial. [ 102 ] For the reasons discussed above, and in light of NJH’s undeniable desire to return to the Mother, I am of the view that it is in NJH’s best interests to return him to the Mother’s custody. [ 103 ] According to s. 2 (

b) of the CFCSA , “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.” As the Mother said, and I agree, that she has “come a long way.” I am satisfied that she can provide a safe and nurturing environment for NJH. [ 104 ] While NJH has many positive attributes, he still faces some behaviour and emotional challenges, including attachment issues, as noted by Dr. Fedorowicz and Mr. Collins. [ 105 ] Mr.

Collins, in his report, at p. 3, notes that: [NJH] will continue to require one on one therapeutic support regarding his trauma, relationships and ongoing behaviour challenges. His support team will also benefit from consultation supports in assisting them to understand [NJH’s] presenting challenges and implement strategies to ameliorate their effect. [ 106 ] As I noted earlier, s. 2 (

c) of the CFCSA states that “if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided.” [ 107 ] I am of the view that NJH and the Mother can benefit greatly with continued support services. [ 108 ] On the question of whether this court has the ability to make ancillary orders where the CCO sought is not granted, I referred counsel to British Columbia (Child, Family and Community Service) v.

T.H. , 2019 BCPC 101 , wherein, at paras. 118-129, the court discusses this issue and concludes that this court does have the ability to make ancillary orders where the CCO sought is not granted. [ 109 ] I am satisfied that I have the statutory power and jurisdiction to make ancillary orders in the interests of NJH’s safety and well- being. CONCLUSION [ 110 ] In

summary, my conclusions are as follows: (

a) pursuant to s. 40(1) of the CFCSA , NJH was in need of protection at the time of his removal on July 19, 2017; (

b) the evidence in this case does not support the granting of an order, pursuant to s. 49(10) (

a) of the CFCSA , placing NJH in the continuing custody of the Director;

(

c) pursuant to s. 49(10) (

b) of the CFCSA , NJH should be returned to the Mother’s custody; and (

d) this court has the statutory power and jurisdiction to make ancillary orders in the interests of NJH’s safety and well-being. ORDERS [ 111 ] For the reasons discussed above, I make the following orders: 1. the Director’s application for a CCO pursuant to s. 49(10) (

a) of the CFCSA is dismissed; and 2. pursuant to s. 49(10) (

b) of the CFCSA , NJH shall be returned to the Mother’s custody. I also make the following ancillary orders, which shall be effective for a period of six months, namely, from November 12, 2021 to May 12, 2022: 1. The Mother shall work co-operatively with the Director, NJH’s foster parents, and all other persons or entities involved in the provision of care, services or programs to NJH, to effect NJH’s transition from foster care to the Mother’s care in as smooth and least disruptive manner as possible to all concerned. 2.

The Mother shall accept one-on-one therapeutic support for NJH through the services of a counsellor or behavior consultant, as needed, to address NJH’s trauma, relationships and ongoing behaviour challenges. 3.

The Mother shall: a. ensure NJH is enrolled in, and is regularly attending school; b. notify those working with NJH, including his school personnel and those working with NJH in recreational environments, of NJH’s behaviour challenges, to ensure NJH does not pose a risk to himself and other children; c. ensure NJH is always supervised by a responsible adult, regardless of the activity NJH is engaged in, unless otherwise recommended by NJH’s counsellor or behaviour consultant in writing; d. encourage and facilitate NJH’s attendance at counselling or sessions with the behaviour consultant, and follow all reasonable recommendations made by such counsellor or behaviour consultant; e. provide written consents for the Director to access all school and counselling records for NJH; f. ensure NJH is not in the presence of TJH for any reason whatsoever without the Director’s permission and until all court orders prohibiting contact between TJH and NJH are lifted; g. attend counselling or sessions with a behaviour consultant to assist in parenting NJH responsibly and keeping him safe; h. attend a time management course; i. abstain from possessing and consuming drugs or intoxicating substances, other than marijuana and alcohol, except under the prescription of a licensed medical practitioner; j. attend all appointments with the Director on time; k. allow the Director to meet with NJH at any time, privately and directly, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of NJH; and l. work cooperatively and respectfully with the Director.

By the Court, ___________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia

Schedule A to the Reasons for Judgment of the Honourable Judge V. Chettiar in the matter of the Child NJH, Surrey File No. F23132 Excerpts from the CFCSA : The following are the relevant sections of the CFCSA :

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; (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. Best interests of child 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 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; (

b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child; (

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; (

g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment;

(

h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care; (

i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being; (

j) if the child's parent is dead and adequate provision has not been made for the child's care; (

k) if the child has been abandoned and adequate provision has not been made for the child's care; (

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.

(1.1) For the purpose of subsection (1) (

b) and (

c) but without limiting the meaning of "sexually abused" or "sexually exploited", a child has been or is likely to be sexually abused or sexually exploited if the child has been, or is likely to be, (

a) encouraged or helped to engage in prostitution, or (

b) coerced or inveigled into engaging in prostitution.

(1.2) For the purpose of subsection (1) (

a) and (

c) but without limiting the circumstances that may increase the likelihood of physical harm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides.

(2) For the purpose of subsection (1) (e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. Protection hearing 40

(1) At the protection hearing the court must determine whether the child needs protection. Continuing custody hearing and orders 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearing must be served as follows: (

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

b) on each parent; (

c) if the child is a First Nation child, on a designated representative of the First Nation; (c.1) if the child is a Nis g̱ a'a child, on a designated representative of the Nis g̱ a'a Lisims Government; (c.2) if the child is a Treaty First Nation child, on a designated representative of the Treaty First Nation; (

d) if the child is not a First Nation child, a Nis g̱ a'a child nor a Treaty First Nation child but is an Indigenous child, on a designated representative of another Indigenous community that has been identified by (

i) the child, if 12 years of age or over, or (ii) the parent, if the child is under 12 years of age; (d.1) any person who has been made a party under section 39 (4); (d.2) any person who has custody of the child under section 41 (1) (b), 42.2 (4) (c), 54.01 (9) (

b) or subsection (7) (

b) of this section; (

e) on the Public Guardian and Trustee, if appointed as the child's property guardian under

section 58.

(3) If a person referred to in subsection (2) (

b) to (d.2) appears at the commencement of the continuing custody hearing, that person is entitled (

a) to be a party at the hearing, and (

b) to notice of a hearing under

section 42.2, 54, 56 or 57 and, if the person appears at the commencement of the hearing, to be a party at that hearing.

(4) The court must order that the child be placed in the continuing custody of the director if

(

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

b) a parent is unable or unwilling to resume custody of the child.

(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.

(6) Before making a continuing custody order under subsection (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.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody.