DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 194

Citation: British Columbia (Child, Family and Community Service) and O.I.G. 2022 BCPC 194 Date: 20220922 File No: F24100 Registry: Port Alberni 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: O.I.G. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: O.I.G. CHILD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Director: J. Langwith Counsel for the Parent S. Hodgson Place of Hearing: Port Alberni, B.C. Dates of Hearing: May 25, 26 and September 21, 22, 2022 Date of Judgment: September 22, 2022

INTRODUCTION [ 1 ] I indicated to the parties that I would provide some supplemental reasons in this case. These are those reasons. I have intentionally created a 'case name' that provides some confidentiality to the parties. [ 2 ] I have intentionally included the name of the Tseshaht First Nation, because I believe they are deserving of recognition for their efforts in this case.

This case is an example of how the court system benefits from input from the First Nation when the child is Indigenous. [ 3 ] In these type of court matters, when an Indigenous child is removed from their home and placed in care, the child’s First Nation must be notified. Sometimes that is the end of the communications between the court and the First Nation. Sometimes the First Nation may not have the resources to have any further input into the decision being made that effect the Indigenous child. This was not the case with the Tseshaht First Nation. They came to court appearances leading up to the trial.

They also sent a representative to attend the trial and provide evidence to the court. The representative emphasized that “Indigenous children need a cultural connection.” The representative wanted the court to know that this young girl’s community is unique, with their own customs, language and culture and that she should remain in her traditional territory, to maintain her cultural connection. ONE INDIGENOUS GIRL [ 4 ] This case is about one Indigenous girl. She is a young 4 year old Indigenous girl who first came into the care of the Ministry of Children and Family Development the day she was born.

There are times when she was with her father, but both parents have had some difficulties. One parent is Indigenous. One parent is not Indigenous. For a number of reasons, the parents have not been able to care for their little girl in a way that they would like to. [ 5 ] This little girl's Indigenous grandparents stepped up. This is not the first time they have jumped in to help their grandchildren. They have another one under their roof. Her non-Indigenous grandparents have also stepped up.

They all want to make sure this little girl grows up healthy and strong. [ 6 ] Our Legislation in BC has timelines and requires us to transition all children out of care as soon as possible. We try to support parents as much as possible. We want our children to be with their parents when possible. The family is always the preferred environment to raise a child. [ 7 ] When a child is Indigenous, we must be particularly careful to make decisions that respect their Indigeneity. Sometimes they are too young to say "It is my right" to understand my culture, my roots, my language, and my traditions.

That is why sometimes we must all be their voice and make sure they are heard. THE LAW [ 8 ]

Section 2 , 3 and 4 of the Child, Family and Community Service Act [RSBC 1996]

Chapter 46 provides essential guidance with respect to certain principles in guidance, service delivery and the best interest analysis, including factors to consider when assessing the need for protection: 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. Service delivery principles 3 The following principles apply to the provision of services under this Act :

(

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

b) Indigenous people should be involved in the planning and delivery of services to Indigenous families and their children; (

c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; (c.1) the impact of residential schools on Indigenous children, families and communities should be considered in the planning and delivery of services to Indigenous children and families; (

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

e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children. Best interests of child 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. DISCUSSION [ 9 ] It is a sad day when any child is removed from a parent in order to ensure that they are protected. It is traumatic for the child and the parents, as well as the community. [ 10 ] New statistical information shows that there are more Indigenous children in care than ever before. Some have nicknamed the Canadian child welfare system ‘the new residential schools’ and I have heard the statistic that there are more Indigenous children in care now, than there were children in residential schools at any one point in time.

Between fifty and sixty percent of the children in care are Indigenous. [ 11 ] This case has taken too long to litigate. We began this trial months ago. There is no villain to blame for the delays. The Ministry had to remove this Indigenous child because they were worried that she might not be taken care of, because her parents needed to take care of themselves. Her parents always just wanted to be great parents. They took time to work on themselves.

There were many days of trial dedicated to the sole question, 'what is in this little Indigenous girl’s best interest?' No matter what the decision, everyone agrees that getting her out of care was a priority. [ 12 ] In this litigious journey, it became apparent to all that this little Indigenous girl is surrounded by love and support. She is in a home with her Indigenous grandparents. She is loved by her mother, father, and his extended family. Everyone agreed that she should stay with her grandparents where she is not just surviving, but where she is thriving.

Everyone agrees that she needs to spend as much time as possible with her mother and father, when they are able. [ 13 ] After a long day in court, everyone agrees that this little girl should be permanently transferred to her grandparents. Not because her parents do not love her. To the contrary, she is permanently transferred into the custody of her grandparents with everyone’s consent because her parents love her.

They believe this order is in her best interest. [ 14 ] In making the order to permanently transfer this little Indigenous girl to her grandparents, I need to ask whether granting the order is in her best interests. CONCLUSIONS [ 15 ] I easily conclude that this Indigenous girl has been in a state of non-permanency for too long.

I also conclude that she is thriving where she is, and all of the above factors under the best interest analysis considered in their totality bring me to the conclusion that the applicants order to have this child placed with her maternal grandparents permanently is in this child’s best interest.

[ 16 ] The fact that she can remain in her forever home, with her current caregivers, and keep her bond with her father and his side of the family, and her mother, are all positive outcomes. [ 17 ] The fact that she will grow up and continue to learn about and practise her Indigenous traditions, customs and language and belong to her Indigenous community is not just another positive outcome.

It is her right. [ 18 ] The fact is, now we have one less Indigenous girl in care. [ 19 ] As we approach September 30, 2022 the “National Day for Truth and Reconciliation”, I see many people wearing orange T- shirts that say “Every Child Matters”. The fact is, now we have one less Indigenous girl in care. The fact is that there are tens of thousands more to go. _________________________________ The Honourable Judge A. Wolf