DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 223

Citation: British Columbia (Director of Child, Family, and Community Service v. E.L.G. 2022 BCPC 223 Date: 20220921 File No: F-19010 Registry: Port Coquitlam 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: A.D.G. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: E.L.G. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. DOREY Counsel for the Director: S. Sim Counsel for the Parent: M. Reid Place of Hearing: Port Coquitlam, B.C. Dates of Hearing: July 11-15, 18-19, 2022 Date of Judgment: September 21, 2022 Introduction

Introduction [1] On September 21, 2021, my reasons for judgment were delivered to the parties orally with written reasons to follow.

These aremy written reasons. [2] The Director of Child and Family Community Services (the “Director”) brings an application for the permanent transfer ofcustody of A.D.G., a [omitted for publication] boy, born [omitted for publication] (“A.”), to his maternal great-aunt, T.G. (the “aunt”)pursuant to s. 54.01(5) of the Child, Family and Community Services Act, R.S.B.C. 1996 c. 46, (the “CFCSA” or the “Act”). [3] The Director’s application is opposed by A.’s biological mother, E.L.G. (the “mother”).

A.’s biological father is unknown. [4] The central issue in this case is the mother’s capacity to parent A. [5] A. has been the subject of Ministry involvement prior to his birth due to the mother’s low intelligence and complex mentalhealth and behavioural issues, including an explosive temper.

Since A.’s birth, the Ministry has provided a great number of supportservices to the mother to assist her in raising her son and to help her adapt to the demands of parenthood. [6] A. was removed by the Ministry from his mother’s care on May 7, 2020, due to child protection concerns when the motherrefused to sign a safety plan. At the time of removal, the mother and A. resided with the aunt in Maple Ridge.

Following removal, A.was placed in the interim custody of his aunt under the supervision of the Director by order made on May 14, 2020, pursuant to s. 41(1)of the CFCSA. [7] On July 16, 2020, by consent of the parties, a temporary custody order was granted placing A. in the custody of his aunt underthe supervision of the Director in accordance with s. 41(1)(

b) of the Act. On September 23, 2021, the temporary custody order wasextended until the conclusion of this application. [8] Currently, the mother has supervised visits with A. at the discretion of the Director. [9] Since A.’s removal, the mother found part-time employment and re-engaged in mental health services and counselling.

Themother participated in various programming and meetings to improve her parenting and household management skills and she availedherself of weekly outreach services in her home. [10] Despite the mother’s participation in these services, the Director is of the view there is no significant likelihood of improvementin the mother’s ability to parent A. in a safe manner. Issues: [11] There is a presumption at common law that the parents have the right to raise their children “unless the safety and protection ofthe children calls for the intervention of the state”: Director v. C.F.C. Services v.

C.B., 2006 BCPC 321, at para. 95, citing R.M. v.B.A.C. (1984), (BC CA), 43 R.F.L. (2d) 157 (B.C.C.A.) which, in turn, adopts the following statement of principle: I regard it as settled law that natural parents of an infant have a right to its custody which, apart from statute, they can lose by abandoningthe child or so misconducting themselves that in the opinion of the Court it would be improper that the child should remain with them. Hepton v.

Maat, (SCC), [1957] S.C.R. 606, at p. 615. [12] The mother puts forward a submission that challenges the approach taken by MCFD with respect to child neglect and parentalmisconduct in child protection cases in British Columbia generally, and in A.’s case specifically, as overreaching by drawing upon thepractices and approaches towards child rearing and discipline in other countries and other cultures. The mother relies on severalperiodicals, newspaper and internet articles, and statistics to support this submission, which I have reviewed.

I am unable to adopt thissubmission as it does not address the issue at hand and that is whether the mother is able to independently parent A. [13] Moreover, as this is a statutory Court, I am bound to follow the legislative scheme in child protection cases in British Columbiaas found in the CFCSA that codifies this common law principle. [14] Thus, the following issues are to be decided in this case: 1. Was A. in need of protection at the time of his removal on May 7, 2020? 2. Should the mother’s guardianship be terminated and transferred permanently to A.’s aunt? 3.

If so, should an order for access be granted to the mother? Statutory Framework [15] The Director bears the burden of proving on a balance of probabilities that A. was in need of protection at the time of removaland that terminating his mother’s guardianship is in the best interests of A. [16] A hearing under the CFCSA is civil in nature and may be “as informal as a judge may allow”: s. 66(1).

The strict rules ofevidence do not apply to hearings under the Act and, pursuant s. 67(b), the hearing judge may admit “any hearsay evidence” theyconsider reliable and relevant to the proceeding, including transcripts, exhibits, and findings in earlier criminal and civil proceedings: C.S.L. v. British Columbia (Director of Child, Family and Community Service), 2007 BCCA 92, at para. 36. [17] The term "best interests" is defined in s. 4 of the CFCSA as follows:

(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. [ 18 ] A.’s best interests are to be determined in accordance with s. 2 of the CFCSA , often referred to as the "guiding principles", which state: 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. [ 19 ] A. is not indigenous and thus s. 2(b.1) and (

f) do not apply. [ 20 ] As the temporary custody order proceeded by consent, the court is now tasked with conducting a full protection hearing. The first task of the court at a protection hearing is to determine whether A. was in need of protection at the date of the removal: s. 40(1)(a). [ 21 ] Section 13(1) of the CFCSA sets out the circumstances in which a child needs protection. The Director relies on s. 13(1) (

a) as the ground for A.’s removal which states: 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; … [ 22 ] If A. is found in need of protection, the Court must then consider the plan of care presented by the Director and may hear other evidence as it considers necessary to determine what orders should be made in his best interests. [ 23 ] There are two pre-conditions that need to be met before an order for the transfer of permanent custody can be made.

First, the Director must establish pursuant to s. 54.01(5)(b)(ii) that the child, if aged 12 or over, and the proposed permanent guardian consent to the permanent transfer of custody. A. is under 12 years of age and thus his consent is not required. The written consent of the aunt was filed and thus this condition has been met. [ 24 ] The Director must also establish, pursuant to s. 54.01(5)(c), that the child has been residing with the proposed permanent guardian under a temporary custody order for at least 6 consecutive months immediately before the application for a permanent transfer of custody.

In this case, A. has been residing with the aunt under an interim custody order from May 14, 2020 until July 15, 2020, which continued under temporary custody order since July 16, 2020. Thus, this second condition has been met. [ 25 ] In order to grant the order for the permanent transfer of custody, the Court must conclude on the evidence, pursuant to s. 54.01(5) that:

(

a) there is no significant likelihood that (

i) the circumstances that led to the making of the agreement under

section 8 or to the child's removal, as applicable, will improve within a reasonable time, or (ii) the parent will be able to meet the child's needs [ 26 ] Prior to making this order, the Court must consider s. 54.01(6) which states:

(6) Before making an order transferring custody 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. [ 27 ] When an order transferring custody is made under s. 54.01(5), the “individual to whom custody is transferred becomes the child’s guardian”: CFCSA, s. 54.2(1) (a); Family Law Act , S.B.C. 2011, c. 25 ( “ FLA ” ), s. 51(5) . Once custody of the child is transferred to another person pursuant to this section, the parent is no longer the legal guardian of the child. [ 28 ] In D. v.

D. , 2013 BCPC 135 , at para. 24 , Merrick PCJ explained the effect of the transfer: [24] …It must be remembered that once a parent is no longer a guardian, that parent loses all parenting responsibilities and rights and is simply an adult who may have contact with the children. [25] In my view, it will be rare when that is in the child’s, or in this case, the children’s best interests. [ 29 ] Because guardianship is “automatically” vested in the person who is granted custody of a child under s. 54.01(5), the issue of access is no longer an issue for the Director and becomes a matter to be resolved between the guardian and the parent in a Family Law Act proceeding: CFCSA, s. 54.2(1) (

a) and (2.1) [ 30 ] The parent then has legal rights under FLA to apply for contact with the child, or to vary an existing order for access, or may seek guardianship of the child: CFCSA, s. 57.01 ; FLA, s. 51 , 59 , and 60 . Background and

Summary of the Evidence Up to A.’s Removal (

a) The Mother [ 31 ] The mother was born and raised in Kamloops and is currently 27 years of age. She left home following high school and lived on Vancouver Island with a boyfriend for about a year. The boyfriend was verbally and physically abusive towards the mother. The mother then had another boyfriend who was also verbally abusive towards the mother. She moved to the Lower Mainland and began living with the aunt in about 2016 at the urging of a cousin. She moved into her aunt’s home shortly before the mother became pregnant with A. [ 32 ] The mother’s parents are separated.

The maternal grandmother (and the aunt’s sister) has bipolar disorder. She resides in Kamloops and remains a supportive family member for the mother. The mother does not have a close relationship with her father who lives in Victoria and sees him rarely. [ 33 ] The mother has an older brother, D.G. (the “brother”), who also lives in Maple Ridge. He also lived with the aunt before A. was born. The mother has a close relationship with her brother.

The mother has a good relationship with her maternal grandmother (A.’s great-grandmother) and her first cousin, S.H. (the “cousin”) (the aunt’s daughter). [ 34 ] The first contact MCFD received requesting services for the mother was from the mother’s psychiatrist, Dr. H.V. Gopinath, in October 2017 before A. was born. [ 35 ] The mother has a Person with Disabilities designation. She was diagnosed by Dr. Gopinath as having a major depression in remission, cyclothymic disorder in the past, and possible ADHD and Asperger’s syndrome.

The mother also has a learning disorder, passive-aggressive borderline personality traits, and anger management issues. Dr. Gopinath was concerned about the mother’s ability to parent her child independently in light of these diagnoses and recommended the mother attend parenting skills groups and receive anger management counselling. [ 36 ] In light of Dr. Gopinath’s concerns, MCFD developed a plan for the mother to care for A. while residing with the aunt who would provide parenting support. This plan was agreed to by both the mother and the aunt. [ 37 ] The mother was referred to Dr. L.

Shewchuk, neuropsychologist, by Dr. Gopinath for psychometric and neuropsychological evaluation in September 2018. She was assessed as being within the borderline intelligence range with a full-scale IQ of 77. [ 38 ] Dr. V. Dmitrieva subsequently became the mother’s psychiatrist. In 2021, Dr. Dmitrieva referred the mother back to Dr. Shewchuk for further psychological evaluation. In his consultation report dated March 9, 2021, Dr.

Shewchuk confirmed that the mother functioned at a low average cognitive level range, noting that her “potential cognitive capabilities are estimated to range within the higher mid average ranges” (at p. 4). At p. 4 of his report, Dr. Shewchuk further states: [The mother] displays a fairly well integrated personality structure at this time, however, paranoid features suggest that she is rather cautious in interpersonal relationships and may still feel easily insulted or slighted.

[ 39 ] The mother was also found to have low average weaknesses in “Adaption Behavioural Skills”. These skills, according to Dr.

Shewchuk, are required for basic care of the home and social interactions with others (at p. 5). [ 40 ] From January 2019 until May 2020, MCFD received multiple negative reports from family members about the mother’s ability to perform basic care tasks, that she was unable to recognize A.’s cues and needs, and consequently, became easily frustrated when parenting A. [ 41 ] The mother and her aunt argued a lot about the mother’s care of A., her unwillingness to clean-up after herself and A., and to help around the home. [ 42 ] In January 2019, the mother moved out with A. to live with her new boyfriend in Mission after she had an argument with her aunt.

She had little in the way of money and supplies to care for A. At that point in time, the mother stopped accessing support services and stopped taking her prescribed medications. She also refused to check in with her aunt or return her aunt’s telephone calls. [ 43 ] On March 7, 2019, the mother was assaulted by her boyfriend. The police were called to respond to the incident at the boyfriend’s home. MCFD became involved as the incident occurred in the presence of A.

The mother agreed to a safety plan required by the on-duty social worker to take A. to the aunt’s home the following day and to meet with her social workers. The mother returned A. to the aunt’s home albeit after the pre-arranged time. [ 44 ] After meeting with social workers, the mother agreed to move back in with the aunt and to participate in MCFD’s support services. Despite the receipt of support services, the mother was frequently reminded of how to do basic childcare tasks by her aunt which the mother construed as personal criticisms. [ 45 ] The aunt and cousin had full-time jobs outside the home.

This meant that the mother would be on her own with A. for long periods during with day, and this concerned them given the mother’s unpredictable behaviour. [ 46 ] Both the aunt and cousin stated in their testimony that the mother was prone to mood swings and they reported their concerns to MCFD. According to the aunt, on good days, the mother played with A. and then there were days when she sat on the couch, played on her smartphone and would not interact much with A. On bad days, the mother had a quick temper and very little patience with anyone including A.

Before the removal, the aunt observed the mother having tantrums “to the extent that she could not control herself”. She would shout, yell, and scream and throw things in front of A. when she was upset. The mother would lock herself in her room until she calmed down. The last time the aunt observed one of these “tantrums” was “close” to the removal date of May 7, 2020. The aunt noted in her testimony that the mother was not taking her “meds” at that time. [ 47 ] As a result of these reports, MCFD offered funding for A. to attend full-time daycare. The mother agreed.

In March 2019, A. was placed into a daycare and the mother was provided services to improve her parenting skills, life skills, and de-escalation strategies. The mother’s participation in these services was sporadic at best. [ 48 ] The aunt testified that in January 2020, the mother frequently left her home with A. and without telling anyone where she was going for days at a time. According to the aunt, the mother had little money to look after herself and A. and did not pack proper supplies for A. for extended absences such as food, toys, diapers and changes of clothing.

The aunt testified that A. would miss daycare during these absences and that she was worried. The mother, on the other hand, disputes taking A. away for long absences and that she failed to pack proper supplies for her son.

She conceded in her direct evidence that A. missed some Mondays at daycare, adding that no one from MCFD told her that he had to attend every day. [ 49 ] Upon receiving reports of the mother’s absences, MCFD decided to implement a support services agreement that required the mother to live at her aunt’s home at all times and for A. to attend daycare five days per week for structure, routine, and socialization. The mother was informed by social worker Gina Pooni of the reasons why the support services agreement was required at a meeting held at MCFD’s offices on January 29, 2020. Ms.

Pooni described the mother’s behaviour as “non-responsive to questions” at this meeting. [ 50 ] Social worker Pooni testified that she tried to explain to the mother the goals that were required if the mother wanted to continue to live with the aunt and A. The mother did not make eye contact with Ms. Pooni. She cried and was shaking as Ms. Pooni explained her reasons. The mother refused to sign the agreement, became angry, then stormed out of the meeting, and exited the building. After cooling off, the mother later telephoned Ms.

Pooni to apologize for her behaviour and agreed to sign the support services agreement, which she did on January 30, 2020. [ 51 ] In February 2020, MCFD appointed an independent agency to assist the mother with her parenting skills. Family strengthening support workers Robin Walton and Denise Laslo were assigned to work with the mother on her parenting skills. The mother did not make a concerted effort to participate in the outreach services that were offered by Ms. Walton and Ms.

Laslo until October 2020, approximately five months after A.’s removal. [ 52 ] On May 2, 2020, the mother became very angry at her brother and A.F. when she learned of their dating relationship and got into a loud and heated argument with them. This argument took place outside the aunt’s home in the townhouse complex in the presence of A. and A.F.’s six-year-old son, who had both been outside playing near their mothers. The mother was the main aggressor.

She yelled, used profanity, and uttered threatening words and gestures toward A.F. and her brother. [ 53 ] The aunt heard the mother’s yelling from inside the home. She went outside to take the children inside away from the scene. She observed the mother in a state of rage, testifying the mother had “lost it” with A.F. and her brother. [ 54 ] A short time later, the mother entered the home, punched her fists into her hands, and shouted at A.F.’s six-year-old son, telling him “you’re going home” and “get out of my house”. She then went into her bedroom to calm down. [ 55 ] The May 2 incident was reported to MCFD.

Ms. Pooni telephoned the mother the next day. During the call, the mother became angry and wanted to know who reported the incident. She did agree to have a meeting with Ms. Pooni at her home on May 7 to further

discuss the incident. [ 56 ] On May 7, Ms. Pooni and her partner, social worker Erin Morgan, met with the mother, her aunt, and cousin at their home. This meeting took place outside on the patio. A. was playing in the yard nearby with the cousin watching over him. [ 57 ] Ms. Pooni testified that she and Ms. Morgan spent the next two hours trying to discuss the child protection concerns with the mother that arose from the May 2 incident and to plan-out the next steps. The mother refused all attempts made by the two social workers to engage her in any productive discussion about the incident.

During this timeframe, the mother was aggressive with the two social workers, was visibly distraught, and she threatened to kill herself if A. was removed from her care. [ 58 ] Social workers Pooni and Morgan were quite concerned about the mother’s deteriorating mental state. They then sought and obtained instructions from their team leader, Allison Hurst, to try to get the mother to agree to enter into a safety plan placing A. in the temporary custody of the aunt.

The social workers were instructed to remove A. if the mother refused to sign a safety plan. [ 59 ] After speaking with their team leader, the social workers returned outside to the patio to wait for the mother. The mother returned to the meeting. Ms. Pooni told the mother that a safety plan was required because the mother did not recognize the concerns arising from her mental state and behaviour, and consequently, they did not support the mother parenting A. at this time in light of these concerns.

She was then told that the alternative to the safety plan was for the social workers to remove A. and place him in his aunt’s care. The mother then began yelling and told them that she was not going to sign the safety plan. [ 60 ] The two social workers got up to leave the meeting and, as they approached the patio door, the mother stood in front of the door and blocked their exit. The aunt stepped in to move the mother out of the way so the social workers could leave.

The mother was crying and yelling at them as she blocked the door. [ 61 ] The RCMP were then called and arrived at the aunt’s home to assist the social workers with the removal. A. was picked up by a friend of the aunt to stay until things in the home settled. [ 62 ] The mother was required to leave her aunt’s home immediately. She calmed down, gathered her things, and left with her cousin. She stayed with her cousin until she found her own place to live two weeks later. [ 63 ] The mother admits the events that took place on May 2 and 7.

She admits she lashed out at her brother, her friend A.F., and the two social workers but does not admit yelling at A.F.’s son or blocking the patio door. (

b) The Aunt and Cousin [ 64 ] The aunt works full-time in traffic control as a flag person. She rents a townhouse in Maple Ridge. She has two grown children, one of whom is the cousin. [ 65 ] The aunt is a family oriented. She enjoys hosting family for social gatherings and dinners. The aunt opened her home to let extended family members live with her including the mother, and the brother. Currently, the aunt lives in a different townhome in Maple Ridge with another relative and A. [ 66 ] The aunt describes her current relationship with the mother as strained.

The mother blames the aunt for MCFD’s involvement in her life. The mother feels that the aunt is too critical of the mother and interferes with her parenting of A. As a result, the mother keeps her conversations with the aunt “polite and simple” during visits with A. [ 67 ] The mother has a good relationship with her cousin. Until April 2021, the cousin lived in Maple Ridge with her fiancé. She and her fiancé have now moved to Princeton. (

c) The Child [ 68 ] A. is described by his aunt as a healthy, happy, active, and inquisitive boy. A. does not have any significant health or medical concerns. [ 69 ] A. is not yet school-aged and has been in full-time daycare since March 2019. He does well with the consistent routine and structure that daycare provides, and enjoys socializing with other children. [ 70 ] The aunt has a loving and close bond with A. She described in detail her relationship with A. and her observations about the child, including what activities he likes and dislikes.

It is clear from the aunt’s testimony that she provides a stable home for A. with structure, routine, and rules on how to behave with others. [ 71 ] Ms. Walton observed that the mother is very affectionate towards A., that he reciprocates her affection, and that she can be a “fun mom” with her son. The aunt testified that A. has a “pretty close bond” with his mother and that he likes seeing her on their visits at the aunt’s home. It is obvious from the mother’s testimony that she loves and cares for A. deeply and wants to be his full-time mother. [ 72 ] A.F. spoke positively about the mother’s parenting of A.

She described in her testimony the mother’s interactions with A. in the context of the activities and outings she and the mother have done together with their children before the removal. Was A. in Need of Protection at the Time of Removal? [ 73 ] The mother does not consent to the child protection finding sought by the Director under s. 40(1) (

a) of the CFCSA ; however, the mother admits that she exhibited poor parenting behaviour prior to A.’s removal and, for the most part, admits the facts set out in the Form A Report to Court filed May 14, 2020. The Report to Court sets out the facts and circumstances in support of the protection concerns relied upon by the Director in this case, much of which I have summarized in the previous section.

[ 74 ] I am satisfied on a review of the Report to Court and upon hearing the testimony of social workers Pooni and Kiran Dhaliwal, the aunt and cousin, that A. was in need of protection on May 7, 2020 pursuant to s. 40(1) (

a) of the Act . Post-Removal

Summary of the Evidence [ 75 ] After the removal, Ms. Pooni arranged meetings between the mother, the aunt and cousin to discuss plans as to how best to support the mother and facilitate access visits. The family agreed to supervise the mother’s visits with A. [ 76 ] Between May 1 and May 29, the mother did not make any requests to see A. in person but had video calls with A. during that time period. With the approval of MCFD, the aunt set up visits for the mother at her home three times per week on a set

schedule and encouraged the mother to have more visits. From the beginning of June through the August of 2020, the aunt and cousin drove the mother to and from her visits with A. at her aunt’s home. The aunt testified that the mother rarely initiated requests for additional visits with A. This evidence was not disputed by the mother. [ 77 ] After the removal, the mother remained angry at her aunt but agreed to attend joint counselling. They attended two sessions together which then ceased as the mother no longer wanted to participate in counselling with her aunt.

The mother explained in her testimony that she found it difficult to get her points across to the aunt because she felt her aunt was “mean” and too critical of her as a parent. The mother added that she “shuts down” (i.e. disengages) as her way of coping in difficult situations with people, especially her aunt. [ 78 ] The mother instead prefers to see her trauma counsellor, Tara (whom she began seeing after the 2019 domestic assault incident). She sees Tara bi-weekly for one-on-one counselling. The mother’s counsellor was not called as a witness at trial. [ 79 ] Ms.

Pooni set up case management or collaborative meetings every six weeks between the mother, the aunt, and her support team. She described the mother’s level of engagement at these meetings as unpredictable and that her behaviour at the meetings was driven by the mother’s mood. Over the late spring and summer, the mother became more responsive at meetings and her level of engagement in services increased. This coincided with the mother’s decision to resume taking her mood-stabilizing medications.

Indeed, the aunt noted in her testimony that the mother “still gets angry, but has a little more control” of her emotions. These were positive developments. [ 80 ] Following the request of the aunt and cousin, Ms. Pooni agreed to expand the role of Robin Walton and Denise Laslo to act as parenting supervisors. The mother also needed assistance with housecleaning, grocery shopping, meal planning, food preparation and meal making and Ms. Walton and Ms. Laslo helped the mother learn these skills during weekly outreach sessions.

They also attended collaborative meetings with social workers as the mother’s support person, and helped the mother prepare for the meetings with the goal of increasing the mother’s participation during these meetings. [ 81 ] The mother took the “Circle of Security” course in the Fall of 2020. This is an eight-week course in a small group setting that Ms. Walton led that helps parents to gain better insight and understanding into their child’s behaviours, how to better respond to their cues and needs, and using the “take charge moments” when a child is acting up. According to Ms.

Walton, the mother had difficulty implementing the strategies she learned in the Circle of Security course after first taking it on her visits with A. and needed reminders during outreach visits. Thus, she took the course a second time in a one-on-one setting with Ms. Walton during outreach visits. [ 82 ] By October 2020, the mother re-established treatment with her psychiatrist and was attending counselling. She reported taking mood stabilizers by injection every two weeks at her doctor’s office.

The mother showed an overall improvement in her mood with fewer emotional outbursts once she resumed taking her medication. [ 83 ] Also by October 2020, the mother was living in her one-bedroom suite which was in walking distance from A.’s daycare. She pays her rent on time and is a good tenant according to her building manager. [ 84 ] The mother is currently single. There are no issues with recreational drug use.

She is also working part-time as a clerk at a grocery store in Maple Ridge. [ 85 ] The mother also repaired her friendship with A.F. and the two women are back to being good friends. [ 86 ] By early January 2021, the mother had two weekly two-hour visits in her home after daycare on Tuesdays and Thursdays which were supervised by Ms. Walton or Ms. Laslo and extended visits on Saturdays at her aunt’s home. The mother was permitted to pick up A. from daycare and bring him to her home. She would then be met by Ms. Walton or Ms.

Laslo who would monitor the visit. [ 87 ] The mother’s visits with A. were reported to MCFD as going reasonably well. As a result, MCFD agreed to allow the mother to transition to having one overnight unsupervised visit with A. each week and then take him to daycare the next morning. Brief check-in visits were also provided by Ms. Walton, Ms. Laslo, and the cousin around A.’s bedtime for added support to the mother during the unsupervised visits. [ 88 ] In February 2021, Ms. Walton reported concerns to MCFD about the mother’s parenting around A.’s bedtime.

A. was reported as being uncooperative with his mother and whiny around bedtime. Ms. Walton testified that she observed the mother in one instance around bedtime threatening to spank A. if he did not cooperate with her. Ms. Walton helped the mother manage the situation using the de-escalation techniques the mother learned in the “Circle of Security” course she had previously completed. Ms.

Laslo noted similar concerns about the mother’s struggles with A.’s bedtime routine, and her use of threats of spanking as a means of controlling A.’s behaviour. [ 89 ] Unfortunately, the mother continued to have struggles managing her impatience and frustration with A. On March 6, 2021, Ms. Dhaliwal (the current assigned social worker to the mother’s file) received a report that the mother hit A. on the chest after A. struck her with a toy truck while they were playing on his bed before bedtime during a planned visit. The mother yelled at A., became upset, and then locked herself in the bathroom and cried.

A. had a “hand mark” bruise on his chest. Ms. Walton confirmed these facts in her

testimony. [ 90 ] Ms. Dhaliwal telephoned the mother to discuss the incident. The mother was defensive and “extremely upset” during the telephone call. Ms. Dhaliwal then conducted a home visit on March 9, 2021. Ms. Dhaliwal reported having no concerns about the state of cleanliness of the home and found that there was food in the refrigerator and cupboards. After the visit, Ms.

Dhaliwal decided, in consultation with her team leader, that the mother should re-take the Circle of Security course a third time during outreach visits to better improve her de-escalation and discipline techniques when dealing with A.’s challenging behaviours and to help her settle him into a routine at meal and bed times. [ 91 ] On March 17, 2021, A. appeared to daycare staff to be upset after being dropped off by the mother that morning. He was heard crying when he went to the bathroom. A daycare worker went to help A. and changed his pull-up diaper.

As she changed the pull-up, the daycare worker saw a deep cut at the base of A.’s penis that was bleeding. When the daycare worker asked A. “what happened” and “who hurt [you]”, he answered “mommy”. [ 92 ] The daycare worker called the aunt to report the injury. The aunt was at work and sent the cousin to go to the daycare. When the cousin picked up A. at the daycare, she saw A. crying. He told the cousin that “mommy gave me an owie”. The cousin examined A.’s injury and described the injury in her testimony as a tear at the base of his penis.

The cousin photographed the injury and later sent the photographs to MCFD. She took A. to the hospital. [ 93 ] The cousin testified that she helped the mother with a bedtime check-in the previous evening. She saw no sign of blood or injury to A.’s penis when he was changed into a pull-up diaper before bed. When she left the mother’s home, she testified that A. was in bed and everything was fine. [ 94 ] Social worker Dhaliwal telephoned the mother that same day to advise of A.’s injury.

She informed the mother that the police were called to investigate and that her visits with A. were suspended pending further investigation. The mother testified she was in a state of shock when she learned of the injury. [ 95 ] The police interviewed the mother. She told police that she did not know how the injury happened and denied causing the injury to A. [ 96 ] On March 24, 2021, Ms. Dhaliwal conducted a home visit and met with the mother to discuss this incident in person. Also present at the meeting were social workers Neesha Sekhon and Ms. Laslo.

The mother recounted the events that morning and she again denied injuring A. Ms. Dhaliwal described the mother’s demeanour at this meeting in her testimony as calm. She noted that the mother did not ask any follow-up questions about A.’s well-being and recovery. [ 97 ] In her direct evidence, the mother testified that A. needed a diaper change twice that morning, but did not notice “anything”. In cross-examination, she stated that A. “peed and pooped his pants” twice just before they were leaving for daycare.

She denied getting frustrated at A. and denied pulling off his diaper in a rough manner when she changed him. She stated that A. walked “perfectly fine” into the daycare and that he “seemed fine” when they said their goodbyes. [ 98 ] Social worker Dhaliwal obtained A.’s hospital records in connection with this incident and spoke to the attending physician, Dr. Zoe Redenbach. The records confirm that A. sustained a deep laceration at the base of his penis. The wound was glued and A. received four sutures. It was Dr.

Redenbach’s impression that A.’s injury was not self-inflicted. [ 99 ] The mother’s visits were halted after A.’s injury for approximately 10 days. The visits were reinstated by Ms. Dhaliwal in consultation with her team lead as supervised visits only in light of the protection concerns due to this incident. [ 100 ] Following her investigation into this incident, Ms.

Dhaliwal concluded that the mother can manage caring for A. for short periods only as she easily tires, is frequently frustrated and angry with her son, and has not implemented various parenting strategies and techniques to parent A. in a safe manner. As a result, the decision was made by the Director to bring the application to terminate the mother’s guardianship. [ 101 ] At the end of April 2021, the Director commenced the s. 54.01 application.

Plan of Care [ 102 ] The Director’s position is that the mother does not have the capacity to parent A. independently despite the intensive support services that were provided to her since A.’s removal. Although the mother has made some improvements in her parenting skills, these improvements were not sufficient to keep A. safe in the mother’s care. [ 103 ] The Director’s plan of care is for A. to reside permanently with the maternal aunt.

A. will continue to attend daycare full-time until he reaches school age. [ 104 ] In her testimony, social worker Dhaliwal explained that the aunt has provided a supportive and stable home for A. and has been his primary caregiver since the removal. A. has a close bond with the aunt and he has close ties with his extended family. [ 105 ] Ms.

Dhaliwal testified that the aunt has a firm understanding of the Director’s concerns and has consistently demonstrated a strong ability to make appropriate decisions and set boundaries, and will continue to involve the mother in A.’s life. [ 106 ] Counsel for the Director relies on the Director v. R.T. , 2014 BCPC 190 , to support their care of plan. Counsel submits there are factual parallels to this case that include a very young vulnerable child, and a parent with mental health struggles who was unable to independently manage her child’s care needs.

In R.T. , the child was removed by the Director from his mother’s care in hospital and he was placed in the interim custody of his maternal aunt.

[ 107 ] Similar to this case, the mother had supervised visits and received intensive support for two years until the Director brought the application to transfer custody to the child’s aunt. [ 108 ] Unlike the present case, the mother in R.T. was a research scientist who had substantial financial resources to look after herself and her son. The mother had paranoid schizophrenia and suffered from auditory hallucinations controlled by psychotropic medication that had a sedative effect. [ 109 ] Unlike A., the child in R.T. had complex medical needs.

He was diagnosed at birth with a rare enzyme deficiency that could lead to seizures and was potentially fatal if left untreated. The child’s condition required a strict feeding

schedule that provided the necessary nutrition at the cellular level to manage the enzyme deficiency and by the caregiver being “acutely in tune with the child’s cues” (at paras. 17 and 18). [ 110 ] The mother’s plan of care in R.T. was that she would “simply leave the courthouse, go to her sister’s home, pick up [the child] and take him home” and then “excise” her sister from her son’s life (at para. 27). The Director’s application was granted.

In his reasons, PCJ Hamilton found that the mother could not reliably provide the level of care that the child required given the child’s “extremely high” medical needs, and he found that the mother’s plan failed to recognize the significant role the aunt and her family played in her son’s life.

The Director’s plan of care was found to be in the child’s best interests since it maintained “consistency in his caregiver while maintaining [the mother] as an important and regular influence in his life” (at para. 28) [ 111 ] In drawing upon the reasoning in this case, counsel for Director submits that, the Director’s plan of care is in A.’s best interest as he will have stability and continuity in his care through the aunt that the mother will continue to play an important and influential role in A.’s life.

The Mother’s Position and Plans of Care [ 112 ] The mother opposes the Director’s application for the permanent transfer of custody of A. to the aunt. She does not want the aunt to be named as A.’s legal guardian. [ 113 ] Counsel for the mother submits that the mother has made huge strides in improving her lifestyle, her mental health, and in caring for A. The mother’s mood is better regulated with the help of medication and she is now less prone to having angry outbursts. [ 114 ] In opposing this application, the mother seeks the return of A. under a supervision order under s. 54.01(9) (

b) and 54.01(10) of the CFCSA for a further six months so the mother can continue to “improve her skills”. [ 115 ] Under this plan, the mother would continue living on her own with A. A. would attend daycare full-time. The mother will continue taking her mood-stabilizing medication. She commits to learning how to cook, and she would continue to avail herself of “outreach” supports during this transition period. The mother feels confident that she can recognize the “shark music” in her head (a technique learned from the Circle of Security course) when a behaviour problem arises with A.

In those instances, under the mother’s plan, she will ask for help from her brother, A.F., or her aunt to make sure A. is safe before she separates herself from the situation to calm down. The mother further commits to keeping A. in contact with his aunt and extended family, even though she “doesn’t want it” as she understands this is in A.’s best interests. [ 116 ] Alternatively, the mother seeks a temporary custody order placing A. in the custody of a person other than the parent pursuant to s. 54 . 01(9) (

b) for six months with unsupervised visits between A. and the mother, at the discretion of the Director, for a gradual return . The “person other than the parent” identified by the mother is her friend, A.F., or alternatively, her aunt. [ 117 ] Under the alternate plan, the mother proposes to live with her friend and single mother A.F. under a co-parenting arrangement, with the goal at the end of six months for the mother and A.F. to apply for joint-guardianship of A. under s. 51 of the FLA . She relies on the case of D. v.

D. , supra , as case authority in support of this plan. [ 118 ] The mother’s alternate plan of care was a new plan put forward at the close of the Director’s case. A.F. is willing to co-parent A. with the mother and is willing to become A.’s legal guardian until age 19, if needed, but acknowledged in her testimony that she has not had independent legal advice on the proposed plan of care and that she would need to give this plan further consideration. [ 119 ] A.F. presented at the hearing as a mature, insightful, and supportive friend. She is a single mother of an 8-year-old son who gets along very well with A.

A.F. is studying to become a legal assistant with plans to work full-time once she completes her schooling. A.F. testified that she and the mother are close friends, they have a good relationship, and they understand each other. A.F. is aware of the mother’s mental health issues and she has developed a good approach to resolving issues with the mother. A.F. feels confident that a shared living arrangement with the mother and A. is workable and would be mutually beneficial for both mothers and their sons. [ 120 ] The mother’s further alternative plan of care is joint guardianship A. with her aunt. [ 121 ] Ms.

Dhaliwal was recalled to give evidence on the mother’s plans of care. She testified that care plan alternatives proposed by the mother were problematic from the Director’s standpoint as the mother has not shown much improvement despite the resources that have been provided to her over the past two years to address safety concerns.

The key concern is there would be a lack of oversight for the mother under these alternatives. [ 122 ] With regard to the mother’s co-parenting plan with A.F., the Director’s main concern is how the mother will manage her anger when arguments arise with A.F. over the care of A. and how well her friend is equipped to manage the mother’s parenting and mental health challenges. [ 123 ] Counsel for the Director also submitted that under these plans of care, the mother would no longer receive the same level of support once the Director’s involvement concludes.

Moreover, the aunt would be without the financial support to care of A. that would be provided under a s. 54.01(5) order.

[ 124 ] In the further alternative, the mother seeks an order for reasonable access under s. 57.01 in the event the order for permanent custody is granted. The Director is agreeable to this alternative. Should the Order for Permanent Transfer of Custody be Made in this Case? [ 125 ] The overarching consideration is what care arrangement is in the best interests of A. having regard to a multiplicity of factors including A.’s safety, his physical and emotional needs, the continuity of his care, and the relationship he has with his mother, his aunt, and his extended family: CFCSA, s. 4(1) . Before making such an order, s. 54.01(6) requires that I consider the following factors: (

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 [ 126 ] I will now address each of these factors. (

a) Past Conduct of the Mother [ 127 ] MCFD has been involved with the mother since October 2017 when the mother was pregnant with A. Prior to A.’s removal, MCFD received a total of five child protection reports in relation to the mother’s care of her son. Additionally, MCFD received three service requests for the mother to address her mental health and capacity to parent. [ 128 ] The mother admits that at the time of A.’s removal, she was not meeting with her psychiatrist and was not taking her prescribed medications.

She admits that she had regular emotional breakdowns that consisted of yelling and screaming when A. was present, and that she had taken A. out of the home for long absences without staying in touch with her aunt. [ 129 ] Until the Fall of 2020, the mother’s level of participation and engagement in MCFD supports were at best sporadic. Since that time, the mother re-established treatment with her psychiatrist and is regularly taking her prescribed medications. The medications have helped stabilize her mood.

The mother attends counselling with her trauma counsellor bi-weekly, is an active and willing participant in outreach services provided by Ms. Walton and Ms. Laslo, and has taken the Circle of Security parenting skills program three times. [ 130 ] Despite the many supports and resources that the mother has received to date, she continues to struggle with parenting, and has ongoing difficulty regulating her temper and frustration when caring for A. [ 131 ] The testimony of Ms. Walton and Ms. Laslo was compelling.

These witnesses were in the best position to observe how the mother interacts and implements her parenting skills with A. through many outreach sessions in the mother’s own home. Both witnesses testified that the mother is a loving and caring person who tries hard to improve her parenting skills.

While both witnesses are of the view she has shown improvement in her skills and can parent A. for short periods, they each expressed their concerns for A. if the mother had primary care of her son. [ 132 ] The key difficulties for the mother in parenting A. identified by these witnesses were: the mother’s fatigue; her impatience with A. when he misbehaves or fails to listen; her lack of awareness of A.’s physical and emotional needs; and the mother’s disengagement (i.e., shutting down) when hard topics are brought up. [ 133 ] I will now address each of these difficulties in turn: (

i) Fatigue [ 134 ] Both Ms. Walton and Ms. Laslo testified that A. spends too much time during his visits watching TV and playing video games while the mother is often preoccupied with her smartphone. The mother’s cousin and the aunt made similar observations about the mother in their testimony. [ 135 ] According to Ms. Walton, the mother has shown little initiative during outreach visits to take A. outside or to engage in other activities or forms of play.

The mother admits she fatigues easily which she attributes to the mood stabilizing medications she is prescribed. [ 136 ] The overuse of screen time during parenting visits remains an ongoing issue that has not been adequately addressed by the mother. (ii) Managing A.’s challenging behaviours [ 137 ] It is clear from the testimony of Ms. Walton and Ms.

Laslo that once the mother’s frustration sets in, she has difficulty implementing parenting and de-escalation skills learned through the Circle of Security course (such as the “take charge moments”) to parent A. independently in a safe and effective manner. [ 138 ] The two incidents of March 6 and March 21, 2021, raise significant safety concerns as to whether the mother is able to regulate her temper when confronted with A.’s challenging behaviours. [ 139 ] Turning first to the March 6 incident, I find on the evidence that the bruise on A.’s chest was caused by the mother when she struck him after he hit her with a truck while they were playing in his room.

The mother’s anger escalated quickly after being hit with the truck. She yelled at A., struck him, and then locked herself in the bathroom. [ 140 ] Ms. Walton saw this hitting incident quickly unfold during a supervised visit. The mother at trial had no recollection of the incident. She did, however, tell Ms. Dhaliwal that the “bruise” came from A.’s daycare during a telephone call following this incident.

The mother was not being truthful with Ms. Dhaliwal when questioned about this incident. She was also “extremely” upset and defensive with Ms. Dhaliwal and conducted herself poorly during their telephone call. It is for this reason Ms. Dhaliwal and her team leader decided that the mother should re-take the Circle of Security course a third time. [ 141 ] With regard to the incident of March 17, 2021, the mother denied causing the injury to A.’s penis and had no explanation for the cause of this injury.

She admitted that A. required two diaper changes that morning before they left her home for the daycare and testified that A. “seemed fine” when she dropped him off. I do not accept the mother’s evidence. [ 142 ] A. was not fine that morning when the mother dropped him off at daycare. A. was out of sorts and upset when he arrived. He was heard crying when he went to the bathroom a short time later. He had a significant tear at the base of his penis which was bleeding when a daycare worker took off his pull-up diaper. A. told the daycare worker and his cousin that his mother hurt him.

Further, the medical evidence suggests A.’s injury was not self-inflicted. Finally, there were no issues or concerns identified by the cousin with A. when she helped the mother out with his bedtime routine the night before. On this evidence, I have concluded that the mother became frustrated with her son in having to do two messy diaper changes before daycare, that she was rough with A. as she changed his diaper, and that his penis was injured as a result. (iii) Awareness of A.’s emotional and physical needs [ 143 ] Ms.

Walton testified that the mother received outreach support on the issues of indoor and outdoor safety. It was her impression that the mother was not aware at times of what to do or what was needed to keep a young child safe from potential hazards. [ 144 ] She gave the examples of A. climbing up onto the toilet seat and edge of the bathtub, balancing himself, and letting go. Ms. Walton testified that she had to intervene and direct the mother to “grab” A. and stop him from climbing. She told the mother he could not do so because it was not safe and he could be injured. [ 145 ] Ms.

Walton then gave two specific examples of outdoor outings that occurred in December 2021 and January 2022 that involved crossing a street with A. In both instances, the mother did not keep a proper look out for oncoming cars before she began crossing the street with A. In both instances, there were approaching vehicles and Ms. Walton intervened to prevent the mother from crossing the street. [ 146 ] A clear example of the mother’s lack of awareness of A.’s physical needs involved an incident at dinnertime during a supervised visit in the mother’s home.

The mother took out a steaming hot chicken potpie from the oven, cut up a slice into pieces for A. and gave it to him. A. refused to eat the cut up pieces and wanted a big slice, just like the one his mother was eating. The mother switched plates and gave A. her piece of the pie. Ms. Walton could see steam rising from the slice of pie the mother gave to A. to eat. Before she could intervene, A. took a bite, burned his mouth, and cried. [ 147 ] Ms. Walton told the mother to give A. a glass of water.

She then explained to the mother that she needs to test the pie to see if it had cooled before giving it to A. to eat. The mother then tested A.’s piece of pie and found that it was still very hot. She removed A.’s plate and pushed it away from him across the table. The mother then returned to eating her pie. A. did not have his piece to eat as it was cooling and he was hungry. He stood up on his chair and reached across the table to retrieve his piece of pie as the mother continued eating her dinner. Ms.

Walton intervened again at this point as the child was not safe standing on his chair to reach across the table to get his pie. (iv) Lack of engagement [ 148 ] The mother’s detachment at meetings with social workers was a recurring problem identified by Ms. Walton, and by Social Workers Dhaliwal and Pooni in their testimony. Ms. Walton noted in cross-examination that the mother has a tendency of “shutting down” when she hears something about her she does not like.

The mother admits she has this tendency but adds that she has a “hard time” keeping up with the discussion at collaborative meetings with her social workers and family supports, that she gets confused and “zones out” at meetings. According to Ms. Dhaliwal, there has been little improvement in recent months in the level of the mother’s engagement at these meetings. [ 149 ] The mother acknowledges that her disengagement or “shutting down” remains an outstanding issue that she needs to work on. She identifies this issue as a goal for her to address over the next six months in her plan of care. (

b) Plan of Care [ 150 ] In my opinion, the two alternative plans of care put forward by the mother are unworkable for the reason that the mother has had intensive supports for the past two years since the removal. The mother is easily frustrated with A. when he acts out or does not listen and has not demonstrated consistency in her ability to de-escalate her anger and manage A.’s care without the presence and help of a support person. [ 151 ] It is also my opinion that the plan to have the mother’s friend A.F. co-parent A. is unrealistic.

A.F. was involved in the May 2, 2020 altercation with the mother that led to the removal of the child. The mother threatened A.F. with physical violence and then lashed out and yelled at A.F.’s young son following the argument. The mother’s anger remains unpredictable and her tendency of “shutting down” when confronted or questioned on things she does not like to hear are risk factors for A. and A.F.’s son if they were to reside together in a shared living arrangement. (

c) Best Interests [ 152 ] The aunt welcomed the mother into her home to live. She cared for the mother during her pregnancy and after A. was born. The aunt has been A.’s full-time care provider since his removal and she offers A. a loving, stable, and supportive home life. A. has a close relationship with his aunt and his extended family. The aunt has made concerted efforts to include the mother in family gatherings, outings with A., and brought the mother along on a family trip with A. during this past Christmas holidays.

[ 153 ] Despite their strained relationship, the aunt has told the mother that she has an “open door” policy in her home and that mother is welcome to see A. as much as she likes. The mother has shown little initiative to date in setting up or requesting additional visits with A. because of her ill feelings towards her aunt. Nevertheless, I am confident the aunt will continue to make every effort to continue to include the mother in A.’s life. [ 154 ] The mother told Ms. Walton on more than one occasion that she does not want to have her extended family in her life anymore.

She also made similar comments to the aunt and A.F. The mother admitted she made these comments when she was upset and understands that it would not be in A.’s best interests to take him away from his extended family. [ 155 ] The fact, however, remains that the mother took A. away from the aunt and cousin when she moved out to live with her boyfriend in Mission in January 2019. She changed her telephone number, and did not check in or make contact with her aunt.

In light of this evidence, I cannot rule this out as a risk factor if A. was returned to his mother under the mother’s plan of care. [ 156 ] Accordingly, it is my opinion that the Director has put forward a plan of care that will provide the best possible outcome for A. moving forward. Conclusion [ 157 ] I find that the circumstances that led to A.’s removal are not likely to improve. It has been more than two years since A.’s removal from his mother’s care and that this time-period has been more than reasonable for the mother to demonstrate she has the ability to care for A. safely and independently.

Unfortunately, she has not been able to do so notwithstanding the services and supports that MCFD has provided to her to date. [ 158 ] I have concluded on a careful and thorough review of the evidence, and the submissions of counsel, that it is in the best interests of A. that he continue to reside with his aunt and that she becomes his permanent guardian. [ 159 ] Accordingly, the Director has met the test for the transfer of guardianship of A. to the aunt under s. 56.01(5) of the CFCSA and I grant the order sought by the Director in this case. [ 160 ] I further make an order pursuant to s. 57.01(1)(

a) that the mother shall have reasonable access to A. at the discretion of the aunt. [ 161 ] In making these orders, I want to say to the mother that I know this is not the outcome you had hoped for on this application. You have a close and loving bond with A. I want you to know that you will continue to have an important role in nurturing and caring for A. and in helping him thrive. You will be able to see A. and do many of the things and activities that parents do with their children but you will not be able to do them independently with him because A. is still a very young child and is vulnerable.

As A. gets older you may be able to spend more time on your own with your son. This will depend on you and that means you will need to continue working on your parenting skills and that you will need to take active steps to improve your relationship with your aunt. Your aunt cares a great deal for you, wants you to be an important part of A.’s life, and remains one of your biggest supporters.

It is my strong recommendation that you re-engage in joint counselling with your aunt so you can rebuild your relationship with each other. [ 162 ] I will remain seized of further applications for a period of one year. ____________________________ The Honourable Judge D.L. Dorey Provincial Court of British Columbia