DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 82

Citation: British Columbia (Child, Family and Community Service) v. S.H. 2020 BCPC 82 Date: 20200416 File No: 07-3491 Registry: Williams Lake 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 CHILDREN: D.D.H. , born [omitted for publication] T.M.M., born [omitted for publication] Q.N.M., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.H. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. WHYTE

Counsel for the Director: Atchison, C. Counsel for the Parent: Zetzsche, H. Place of Hearing: Williams Lake , B.C.

Date of Hearing: December 16, 17, and 18, 2019 Written Submissions December 31, 2019, and January 3, 2020 Date of Judgment: April 16, 2020 INTRODUCTION [ 1 ] The Director of Child, Family and Community Service (the “ Director ”) applies under s. 49(5) of the Child, Family and Community Service Act , R.S.B.C. 1996 c. 46 (the “ Act ”) for a Continuing Custody Order (“ CCO ”) for three children: D.D.H., age 12, T.M.M., age 9, and Q.N.M., age 4 (the “ Children ”). [ 2 ] S.H. is the mother of the Children.

She is opposed to the Director’s application, and seeks either the return of the Children or consideration of a “last chance” order, pursuant to s. 49(7) of the Act . [ 3 ] If a CCO is ordered, S.H. seeks an order for access, pursuant to s. 56 of the Act . [ 4 ] The Children were removed on July 7, 2016. They had been in the care of the Director pursuant to a Voluntary Care Agreement (“ VCA ”), initiated in May 2016. Upon removal, the Children remained with the same foster parents with whom they have been placed during the VCA. [ 5 ] The Children are of Aboriginal heritage, specifically [omitted for publication].

A primary focus of planning for the Children has been maintaining their Aboriginal heritage and culture. The Director proposes that the Children would remain in their current foster placement with D.L. and C.L. D.L. is of Métis heritage, and the couple reside in traditional [omitted for publication] territory. Director’s Position [ 6 ] The Director takes the position that there is no significant likelihood the circumstances that led to the Children’s removal will improve within a reasonable time, or that S.H. will be able to meet their needs.

The Director’s position is based on several grounds. [ 7 ] Firstly, the Director argues that S.H. lacks the capacity to parent the Children. Secondly, the Director says S.H.’s ongoing issues with anger management, substance abuse, inappropriate discipline, a historically oppositional relationship with the Director, and lifestyle choices make the resumption of parenting responsibilities unreasonable. [ 8 ] The Plan of Care is to have the Children reside together with the L.s in a long term placement. The L.s have been involved with the Children virtually since their respective births.

They have been a regular placement for the Children at times when they have either been removed or placed voluntarily in the Director’s care. [ 9 ] The L.s have made efforts to maintain the Children’s connection to their culture, including forging relationships with extended family; regular attendance at cultural events; and the use of basic [omitted for publication] language at home.

The L.s remain committed to fostering further connection with the Children’s cultural heritage and roots. [ 10 ] The L.s have established a personal relationship with S.H., and remain willing to facilitate contact between her and the Children in the form of supervised visits. [ 11 ] The Director called four witnesses in support of its application: Alison Barr and Gary Cheney, social workers who worked with S.H. and the Children at various times; R.M., former spouse of S.H.’s current partner, L.S.; and C.H.

Two lengthy Parenting Capacity Assessments were relied upon as a foundation for the Director’s position regarding S.H.’s ability to parent the Children. S.H.’s Position [ 12 ] S.H. and L.S. testified. Each took the view that S.H. is able to parent the Children. Regardless, in order to meet the Director’s concerns regarding S.H.’s capacity, L.S. was posed as an appropriate person to assist S.H. in parenting the Children. [ 13 ] S.H. submitted that she is in a better position than ever to resume parenting of the Children.

She is in a committed relationship and has stable housing. [ 14 ] S.H. also questioned the form of application filed by the Director. If the Director was successful in its CCO application, the Children would be exposed to the possibility of open adoption. In other words, a CCO would not guarantee the Children would continue to reside in their current long term foster placement.

Nor would access be necessarily granted to S.H., despite assurances by the Director that there was no plan to reduce or bar access. [ 15 ] S.H. argued that the Court could order a s. 49(7) “last chance” order to allow the Director to file a s. 57 application to place the Children with the L.s, to be followed by a s. 54.01 transfer of guardianship to the L.s prior to the granting of a CCO. [ 16 ] Regardless of how the Court assessed the Director’s application, S.H. submitted it must take into account An Act Respecting First Nations, Inuit and Métis Children, Youth and Families , S.C. 2019, C. 24 (the “ Federal Act ”) which came into effect on January 2, 2020.

The Federal Act applies to the Children, all of who are of Indigenous heritage. [ 17 ] If the Children were to be subject to a CCO, S.H. submitted the Court ought to impose an order for access, rather than rely on the Director’s good intention to continue to allow access.

SUMMARY OF EVIDENCE

[ 18 ] Much of the historical information pertaining to S.H. was delivered by Alison Barr, Ministry for Children and Family Development (“ MCFD ”) social worker. This information was admitted largely without objection from S.H. [ 19 ] S.H. was subject to a tragic upbringing. Indeed, many of the concerns that have informed the Director’s application are beyond S.H.’s control. She was diagnosed at four months of age with “failure to thrive.” Medical records from her early years describe multiple hospital visits for nutritional and hygiene issues, secondary to neglect.

Fetal Alcohol Syndrome (“ FAS” ) (now generally referred to as Fetal Alcohol Spectrum Disorder, “ FASD” ) was suspected from age three, but a conclusive diagnosis was made difficult due to S.H.’s prematurity and dysmaturity (Exhibit 1, Historical Information on S.H.’s Childhood, page 2). [ 20 ] S.H. was admitted to hospital at age 12 after overdosing on alcohol. Alcohol or drug use formed the basis of several hospital or nursing station admissions until S.H. reached adulthood. [ 21 ] S.H. is the mother of seven children.

Of her four children not subject to the current application, two are in the care of the Director following CCOs, and two are placed with extended family. [ 22 ] The Director’s involvement with S.H. began soon after the birth of her first child in February 2000. Concerns at that time involved neglect, family violence, substance abuse, and involvement with a criminally entrenched romantic partner. [ 23 ] On March 6, 2000, MCFD received a report that S.H. and her partner V.G. were drinking and fighting.

The reporter stated that S.H. and V.G. were tossing their then two week old baby back and forth in his car carrier. The child reportedly fell from the carrier and landed on the ground. S.H. denied the incident occurred, despite the fact that a bystander had stepped in and picked up the child from the ground. The child was removed. [ 24 ] In September 2001 S.H. gave birth to twins that were premature. MCFD records indicated that S.H. and V.G. were low functioning and suspected to have “Fetal Alcohol Effect (FAE).” Concerns remained regarding substance use and domestic violence.

The twins were removed and placed in foster care, and S.H. and V.G. entered residential treatment. The twins were subject to a CCO, granted January 16, 2003. [ 25 ] S.H.’s next child was removed at birth. The child was voluntarily placed with extended family members at the Presentation Hearing. [ 26 ] D.D.H. was born on [omitted for publication]; he was removed from S.H. at birth. The child’s father, while initially interested in contact, subsequently told social workers he did not wish to be involved in D.D.H.’s life. D.D.H. was placed with D.H. and L.H. after two shorter term placements.

He remained with the L. family for approximately two and a half years, and at various other times throughout his life. [ 27 ] After D.D.H.’s birth, S.H. began a relationship with I.M., a Band Chief considered by MCFD social workers to be an appropriate supervisor. In 2010, I.M. successfully applied for custody of D.D.H. under the Family Relations Act . The Director supported D.D.H.’s return to the care of I.M., despite S.H.’s limited parenting capacity, on the understanding that S.H.’s parenting would be supervised at all times. [ 28 ] On [omitted for publication], T.M.M. was born to I.M. and S.H.

The Director supported T.M.M. remaining in the care of I.M. and S.H. [ 29 ] In July 2011, the Director became aware of a report that I.M. had engaged with S.H. in an argument that became physical, resulting in I.M. hitting and shaking S.H., throwing her to the ground and kicking her. S.H. denied the extent of the assault, conceding only that I.M. had slapped her in the shoulder. The Children were not removed from I.M. and S.H.’s care at that time. [ 30 ] Between 2012 and 2015, a variety of concerns were reported to the Director.

These included neglect (rotting teeth, nutritional deficiencies); family violence and discord (D.H.H. being physically abused by I.M.’s older sons; inappropriate physical discipline and outright violence perpetuated by S.H.’s aged mother); and S.H. and I.M. parenting the Children while intoxicated. [ 31 ] On October 15, 2013, D.H.H. set a fire in S.H.’s house while he, S.H., T.M.M., and two others were inside. The house burned to the ground.

The Director learned I.M. was not present to supervise S.H.’s parenting at the time. [ 32 ] Concerns regarding I.M.’s supervision of S.H. were ongoing, and culminated on December 10, 2014, in a decision to remove D.H.H. and T.M.M. They were eventually returned under terms of a Supervision Order, but to I.M. as the individual responsible for their supervision. [ 33 ] On [omitted for publication], Q.N.M. was born. [ 34 ] On October 9, 2015, the Director became aware that I.M. was diagnosed with cancer.

A Safety Plan was developed whereby I.M. confirmed either he or another responsible caregiver would supervise S.H.’s parenting of the Children. S.H. continued to believe that she was capable of parenting the Children without supervision, despite the conclusions of two PCAs that she required constant help and supervision. [ 35 ] I.M.’s illness progressed rapidly. By March 2016, he was in palliative care in Vancouver. Around the same time, the Director received information that S.H. and I.M. had given the Children peyote as part of a religious or cultural ceremony.

Further reports indicated that S.H.’s mother had dementia, and had chased D.D.H. through the house with a knife. Other reports were received that D.D.H.’s stepbrothers were physically abusive toward him, and I.M. had spanked S.H. in front of the Children. Social workers discussed with I.M. and S.H. placement of the Children with the L.s in a VCA. S.H. was initially opposed to this plan. However, the Children were placed with the L.s in May 2016. [ 36 ] On June 28, 2016, I.M. passed away. The Children were formally removed on July 7, 2016, although they remained with the L.

family. [ 37 ] The Children have resided together with the L.s since the VCAs were put in place in May 2016, and at various other times throughout their lives when either S.H. or I.M. was unable to parent them. [ 38 ] On July 14, 2016, the Suspected Child Abuse and Neglect Clinic (“ SCAN Clinic ”) completed an assessment of the Children. Dr. Kyle Okano noted the Children demonstrated behaviours consistent with duress, but these had improved with their move into foster care. The Children were noted to be in a calmer, more consistent, and stable environment, where they were provided adequate nutrition.

As a result, the Children appeared to be functioning better. [ 39 ] S.H. continued to have visits with the Children, but they were noted to be inconsistent. The Director received reports that S.H. was drinking regularly, and missing visits with the Children as a result. [ 40 ] In July 2017, the Director became aware that S.H. had commenced a romantic relationship with L.S. L.S. was convicted of sexual assault on March 16, 2005. He received a 6 month Conditional Sentence, followed by 18 months of probation. The victim of this offence was his 13 year old stepdaughter.

L.S. was suspected of sexual assault and sexual interference in 2009, however no charges were ever laid. [ 41 ] S.H. and L.S continue to be in a committed relationship. The Director submits that S.H. continues to make poor choices regarding her romantic partners, and says L.S. poses a risk to the Children. L.S. has had little involvement with MCFD social workers, and in particular has not undertaken any of the programs geared toward integration of sex offenders into a home where children reside.

Further, L.S. declines to take full responsibility for the offence, which is a key part of the reintegration process. [ 42 ] The Director submits that S.H. does not possess the insight necessary to understand the risk L.S. poses to the Children. Further, she lacks the capacity to protect the Children from L.S. if he was to act in a predatory fashion toward them. [ 43 ] While the Director has been open to consideration of a placement for the Children with extended family or within their cultural community, no appropriate placements have been identified.

This includes L.S., whom the Director does not currently consider an appropriate supervisor for S.H. [ 44 ] On December 12, 2019, D.D.H. was provided Independent Legal Advice (“ ILA ”) by Richard Bjarnson. Mr. Bjarnson’s letter was tendered as Exhibit 2 on the proceedings. According to Mr. Bjarnson’s letter, D.D.H. has expressed his desire to continue to reside with the L.s, whom he described as his family.

He wishes to live with his siblings in his current placement, and continue to have access visits with his mother. [ 45 ] D.D.H. opposes the Director’s application, as it would not guarantee he would stay in his current placement with the L.s. Instead, he would like to have custody of himself and his siblings transferred permanently to the L.s pursuant to s. 54.01 of the Act . However, if his mother is opposed to proceeding in this fashion, he supports the Director’s current application as an alternative. [ 46 ] S.H. currently has liberal access to the Children, supervised by the L.s. Ms.

Barr acknowledged in cross examination that, if a CCO was granted, there would be no guarantee S.H. would continue to have access to the Children. A CCO would open up the possibility of adoption, which could effectively extinguish S.H.’s access. [ 47 ] Ms. Barr also confirmed the Director is opposed to a s. 56 access order in favour of S.H. This position was based in policy considerations that were not specific to the Children. In general terms, the Director’s view was that an access order after a CCO made permanency planning more difficult. However, Ms.

Barr acknowledged the long term plan was to have the Children reside with the L.s, who were supportive of S.H.’s supervised access to the Children. [ 48 ] Ms. Barr conceded that, while the Director’s file contained information about S.H. continuing to drink alcohol, there was no indication she did so in the presence of the Children. [ 49 ] Similarly, no new concerns had surfaced regarding L.S., her common law partner. The Director’s fears regarding L.S. were based on his history, principally his sexual assault conviction. Ms.

Barr noted that L.S. has not shown much interest in participating in the Director’s plans for the Children, but conceded he could potentially meet the Director’s criteria for an appropriate supervisor for S.H. R.M. [ 50 ] R.M., L.S.’s former common law partner, testified on behalf of the Director. She confirmed that L.S. was convicted of sexually abusing her daughter, who was L.S.’s stepdaughter. She expressed her view that L.S. would constitute a risk to S.H.’s female children if his access was not supervised. She conceded L.S. was able to see the sons he had with R.M. without any restrictions.

Gary Cheney [ 51 ] MCFD Social Worker Gary Cheney testified for the Director. He was involved with S.H. and the Children during a stint as acting Team Leader for [omitted for publication] Child Welfare in 2016. Mr. Cheney was the responsible social worker when the Children were placed with the L.s under VCAs prior to I.M.’s death. [ 52 ] Mr. Cheney confirmed that part of the Director’s concern involved the provision of peyote to the Children, including 8 month old Q.N.M., by S.H. and I.M. Mr.

Cheney testified S.H. and I.M. attempted to justify the use of peyote as part of a religious ceremony, but noted that there was no historical record of [omitted for publication] peoples using peyote in this fashion. [ 53 ] Mr. Cheney said he had at least three formal meetings and two informal meetings with the Band Chief, social development workers, counsellors, and other service providers from [ omitted for publication] Services Society. At no time was an acceptable plan put forward for the care of the Children that would place them with extended family or community members in a [ omitted for publication] or

[ omitted for publication] home . [ 54 ] Mr. Cheney believed S.H. lacked the ability to understand the Director’s concerns, and was likely incapable of developing the capacity to provide proper day to day care for the Children. [ 55 ] In cross examination, Mr. Cheney acknowledged his contacts were primarily from I.M.’s family and culture. He said that very few individuals from S.H.’s family participated in planning for the Children. [ 56 ] Mr. Cheney testified that, but for the involvement of I.M., the Children would not have been returned.

He confirmed the Director’s files contain a variety of concerns with I.M., including allegations of spousal abuse, neglect, and sexual abuse. Mr. Cheney said the Director’s holistic assessment of I.M. concluded he was an appropriate caregiver, despite historical concerns. C.L. [ 57 ] Foster parent C.L. testified on behalf of the Director. She and her husband D.L. are natural parents to two biological children. They have six adopted children, (not including the Children who are the subject of the instant application).

Their two oldest children no longer live at home. [ 58 ] The L.s have lived in [ omitted for publication] for the past four and a half years. They own a log house with eight bedrooms and two bathrooms. [ 59 ] C.L. has known S.H. since the Children were born. She testified to developing a friendship with S.H. over the years that she has provided care to the Children. C.L. confirmed the Children have resided with her and her husband continually since the VCA was initiated in May 2016.

The Children refer to her as “mom,” and her husband as “dad.” Their longitudinal involvement with the Children has assisted with the transition to full time care. C.L. described the Children as being fully integrated into, and accepted by, their immediate and extended families. [ 60 ] C.L. testified all of her children have been home schooled. Commencing in grade eight, however, children participate in an online learning program where teachers provide instruction remotely.

C.L. reported the Children were generally performing well in their classes. [ 61 ] As for the Children’s health, C.L. testified they are all healthy. She said the Children had significant dental issues initially, but those have resolved with proper treatment. Part of the home school curriculum includes food preparation.

The family focuses on the preparation of healthy meals. [ 62 ] Both D.D.H. and T.M.M. participate in extracurricular activities (guitar and ballet, respectively). [ 63 ] C.L. testified about the various relationships she has forged with members of I.M.’s community, the [ omitted for publication] First Nation.

She remains committed to maintaining familial relationships, attending cultural events and developing [ omitted for publication] language skills and cultural practices in her home. [ 64 ] C.L. testified that in the past half year, she and the Children have attended a variety of cultural events including: the Yunesit'in and [ omitted for publication] Horse and Bike Ride camping trip; a two day [ omitted for publication] Culture Camp; fishing trips; berry picking; hide tanning; and [ omitted for publication] formal gatherings.

The family is involved in wild foraging, and is learning about medicinal plants from extended family members. She has developed a friendship with Chief [ omitted for publication]. He and other extended family have facilitated language and cultural family history classes for the Children. Going forward, C.L. testified it is her intention to continue to involve the Children in cultural events or visits with extended family members on a monthly basis. [ 65 ] C.L. testified she is content for S.H. to visit the Children at any time. Despite this, she testified that S.H. tends to visit only once or twice per month.

On occasion, L.S. has attended visits. This has caused C.L. concern, as she is aware of his background. C.L. confirmed her willingness to care for the Children on a long term basis, and to continue to facilitate contact between the Children and S.H. [ 66 ] C.L. tendered a document entitled “Information regarding family relationships, contact, and cultural immersion for D., T., and Q.” This document was marked as Exhibit 5. In it, C.L. summarized S.H.’s recent involvement with the Children. [ 67 ] In January 2019 C.L. noted that S.H.’s mother was taken to hospital, as she was in the end stages of dementia.

S.H. reportedly told C.L. that hospital staff would not release her mother, as they were concerned about elder abuse. S.H.’s mother passed away in March 2019; the Children attended her funeral. [ 68 ] C.L. noted most visits between S.H. and the Children were planned around community events (funerals; parades), or dinners in the community. C.L. also delivered boxes of food to S.H. on a semi-regular basis. S.H. tended to visit with the Children one or two times per month throughout 2019.

Visits were occasionally cancelled by S.H. [ 69 ] C.L. testified she has seen no signs of FASD in the Children, despite the fact S.H. told her she consumed alcohol during her pregnancies with D.D.H. and T.M.M. She confirmed S.H. has attended visits sober, but added she cancelled some visits on the basis of having consumed alcohol the previous night. She also testified that S.H. has sounded intoxicated at various times during telephone conversations. [ 70 ] C.L. reiterated her concern with L.S. having access to the Children.

Regardless, she remained open to fully supervised visits, on the understanding L.S. did not interact physically with the Children. [ 71 ] When asked why she had forged relationships with I.M.’s extended family, but not S.H.’s, C.L. said it was I.M. who expressed interest in having the Children involved with his family and culture. Nonetheless, she remains open to developing further ties with S.H.’s

extended family. [ 72 ] C.L. testified the Children did not speak [omitted for publication] when they came into her care. She was not supportive of the Children attending a local school where the [omitted for publication] language is taught. It was her view the Children have grief, loss, and attachment issues that are best mitigated by homeschooling. She conceded she had not yet commenced a formal [omitted for publication] language program with the Children. She intended to do so in the near future, however, C.L. agreed none of the Children have close friends of [omitted for publication] heritage.

Nor does the family engage in traditional hunting practices. [ 73 ] C.L. acknowledged that S.H. lived remotely in the [omitted for publication], and had difficulties with reliable transportation. This, she agreed, affected S.H.’s ability to attend some visits with the Children. C.L. confirmed that she is the one who plans activities when a visit is organized. Parenting Capacity Assessments [ 74 ] S.H. was the subject of two lengthy Parenting Capacity Assessments. The first was completed by Dr. John Lawrence, Registered Psychologist, in October 2002 (the “ 2002 Assessment ”).

A second assessment was completed by Dr. Paul Eirikson, Clinical and Consulting Psychologist, in May 2008 (the “ 2008 Assessment ”). 2002 Assessment [ 75 ] S.H. was diagnosed in the 2002 Assessment as having clinical symptoms consistent with FAS. She exhibited signs of low intellectual functioning and Dependent Personality Disorder. Despite the fact that S.H. did not cooperate with the assessment, Dr. Lawson was confident in his estimate of her intellectual ability, which he assessed as being consistent with that of an eight or nine year old child.

S.H.’s Global Assessment of Functioning, or GAS score, was between 25-30, reflecting a serious impairment in communication or judgment. [ 76 ] S.H. was described as having very weak adaptive functioning, which caused her to make the same mistakes, and suffer the consequences therein, without learning from the experience. Dr. Lawrence found S.H.’s cognitive processes to be “…illogical and convoluted,” leading her to make bizarre or nonsensical links in information (Summary and Recommendations, para. 2).

S.H. was described as being unable to understand social institutions sufficiently to cooperate with them. [ 77 ] Dr. Lawrence opined that S.H. could assist in caring for her children in “…a highly structured, supervised, controlled environment” (para. 3), but noted such environments are difficult to create in practice. Ultimately, it was Dr. Lawrence’s opinion that S.H. was incapable of parenting any children, at that time or for the foreseeable future (Recommendations, para. 2). In particular, Dr.

Lawrence noted S.H. lacked the cognitive capacity to make informed judgments regarding the best interest of the Children. He did not believe this would ever improve sufficiently for S.H. to independently care for infants or children. [ 78 ] Dr. Lawrence assessed S.H.’s then-partner V.G. as having antisocial personality disorder, as well as symptoms consistent with FAS. His GAS was assessed at 25-30 as well. It appears that Dr. Lawrence’s assessment of S.H.’s parenting ability was particularly dire, given her involvement with V.G. 2008 Assessment [ 79 ] Dr.

Eirikson opined in the 2008 Assessment that S.H. was more functional than at the time of the 2002 Assessment. The risk remained that she had limited insight into her cognitive challenges. At the time of the 2008 Assessment, it appeared that S.H. had considerable family and community supports, including her parents and the Anaham Band Chief Gerald Johnny. However, Dr. Eirikson expressed concern that S.H.’s plans for the Children changed at times, and that her indecision was inconsistent with stable planning for D.H.H. [ 80 ] Dr.

Eirikson assessed S.H. at the low average to borderline range of intellectual function, which manifested as difficulties in “… language comprehension, deficits in judgment, learning and memory difficulties.” Dr. Eirikson believed these limitations were related to “fetal alcohol syndrome” (2008 Assessment, page 40, para. 5). This, he wrote, posed a difficulty in parenting that would necessitate monitoring and supervision. [ 81 ] While Dr. Eirikson concluded S.H. was unable to parent independently, he believed she could contribute to parenting, and did not require twenty-four hour supervision.

However, she would require ongoing monitoring and assistance at a “fairly high and consistent level” (2008 Assessment, page 41, para. 6). In particular, he believed S.H. would need to be closely watched while engaged in feeding and bathing of then one year old D.D.H. [ 82 ] S.H. proposed she raise D.H.H. with her parent’s support. Dr. Eirikson found that plan to be insufficient, given it did not allow for the kind of direct supervision S.H. required. Dr. Eirikson recommended a high level of services be put in place to support S.H. in order for there to be a prospect of some form of co-parenting.

The clear message from Dr. Eirikson was that a supervisor with authority to keep D.H.H. safe was required in order for S.H. to participate in the co-parenting model. [ 83 ] The PCAs describe S.H.’s limited cognitive capacity in similar terms. While learning is possible, it is a slow and difficult process that requires constant reminders and reinforcement. I conclude from the PCAs that S.H. lacks insight into her cognitive limitations.

This presents as a further challenge to any plan moving forward. [ 84 ] Based on the conclusions drawn in the PCAs, a best case scenario would have S.H. receiving close, direct support and supervision from an individual or individuals capable of guiding her and, if necessary, intervening to ensure the safety of the Children. Such environments are difficult to create in practice. Beverley Quilt

[ 85 ] Beverley Quilt, Family Support Worker, appeared as representative of the [omitted for publication] Government . She testified initially that she was in favour of the Director’s application. However, she later qualified her position by stating that it was conditional upon the Children continuing to reside with the L. family. Despite being aware the Director’s application could potentially lead to an open adoption, she was content to support it, on the understanding all efforts would be made to ensure the Children continued to reside together with the L.s. L.S. [ 86 ] L.S. testified on behalf of S.H.

He and S.H. have lived together since 2017. They currently occupy a three bedroom log house in the [ omitted for publication]. L.S. is 51 years old. He has six children of his own, and four grandchildren. Despite his history, he testified he is not bound by any restrictions on access to his grandchildren. However, he indicated he does not ever look after them. [ 87 ] L.S. was without a driver’s license until very recently. Consequently, he said his ability to assist S.H. with access visits to the Children was limited. [ 88 ] L.S. acknowledged his 2005 conviction for sexual assault.

However, he said he did not accept the conviction. Rather, he stated he was forced into a conviction by his common law spouse. When asked what happened with his step-daughter, L.S. said he had no memory of the incident. L.S. said he completed his sentence without incident, and participated in all programs to which he was referred. [ 89 ] L.S. testified that S.H. had a lot of potential as a parent, and did not require assistance. He said she was able to cook, clean, and do beadwork. He took the position that her abilities were undervalued by the Director.

He indicated he would take issue with supervised visits, as they would interfere with S.H.’s ability to reconnect with the Children. L.S. said he did not believe S.H. required supervision, and would have a “hard time” if supervision was mandated. [ 90 ] L.S. was asked in cross examination why he had not engaged with the Director to assess his ability to be integrated into a home with children. He said he was not told he had to meet with social workers for this purpose. He believed planning for the Children principally involved S.H., and as such his input was not required.

S.H. [ 91 ] S.H. testified on her own behalf. Her presentation was consistent with what was described in the PCAs as a limited cognitive capacity. She appeared to misunderstand questions at times. For example, when asked if she wanted an order for access to the Children, she responded “no.” It became clear later she actually sought increased access, beyond what she described as one hour visits that were currently in place. [ 92 ] S.H. described living a traditional, spiritual way of life with L.S. in the [ omitted for publication].

She acknowledged her mother moved in when she could no longer care for herself, due to dementia. S.H. described a circumstance where her mother had gone after D.H.H. with a knife. She said her response was to get mad at her mother, and send her to her room for a “time out.” She said she routinely administered “time outs” to D.H.H. and I.M.’s children when they acted out as well. She denied she disciplined D.H.H. by hitting him with a spoon or pinching him, as was alleged by the Director.

She denied I.M. had spanked her as a form of discipline, in front of the Children or otherwise. [ 93 ] S.H. acknowledged D.D.H. was bullied by I.M.’s children in their home. She said she attempted to intervene, however one of the children then assaulted her. S.H. said she stayed in her room with D.D.H. and T.M.M. until I.M. returned. I.M. then spoke with the older child, and placed him in a time out.

There was no explanation as to why I.M. was not present during this incident. [ 94 ] S.H. testified she was a capable parent, and that all the Children need are love, caring, and teaching, specifically teaching of [ omitted for publication] language and culture. She said she was able to provide them meals, and would ensure they made it to school in the morning. [ 95 ] S.H. acknowledged that she drank alcohol approximately once per month, but said she would not drink if the Children were returned to her.

She felt the PCAs were not in her “favour,” and did not properly reflect her abilities as a parent. [ 96 ] S.H. expressed a desire to speak [ omitted for publication] language with the Children. She said previously, social workers would not allow this to occur. She would also like to engage the Children in more traditional activities, such as beadwork, moccasin making, and canning.

She said the visits were always scheduled for one hour in the community, and she has asked for the visits to be of longer duration. [ 97 ] As regards to the state of the Children’s teeth, S.H. linked the decay to bad genes (she had similar dental issues) or an issue related to the composition of the baby bottles, which she believed contributed to tooth decay. No explanation was proffered as to why this condition was allowed to continue without treatment. [ 98 ] Regarding the frequency of her visits with the Children, S.H. testified she was unaware that she could ask the Director for a gas voucher.

As she lives remotely and has little income, she said she was limited in her ability to drive to visits. [ 99 ] S.H. acknowledged L.S.’s conviction for sexual assault of a minor. She said in order to keep the Children safe, she would always have “my girls” beside her. [ 100 ] In cross examination, S.H. conceded the L.s were generally accommodating of her request for visits, unless they or the Children were sick. She had not asked C.L. to bring beadwork or other traditional crafts to visits. [ 101 ] S.H. was asked about providing the Children with peyote during a religious ceremony.

While her answers were not entirely clear, she denied doing so, stating that was a part of I.M.’s culture. She appeared to indicate she was unaware I.M. had provided the Children with peyote, but her response fell far short of a blanket denial of knowledge this had occurred.

[ 102 ] S.H. initially stated she did not recall being told by social workers that L.S. had to be assessed to determine whether he was a risk to the Children. She later said that, while she was aware that MCFD social workers required an assessment prior to reintegration of the Children into the home, she did not have an opportunity to

schedule an appointment for that purpose. When asked about how she would keep T.M.M. safe in particular, she responded that T.M.M. would “always” be with her. S.H. appeared confident that T.M.M. would tell her about any concerning behaviour, as it was in T.M.M.’s nature to be honest and up front with her. S.H. said that she did not believe L.S. posed a risk to the Children based upon his past conviction, but did not elaborate upon the basis of this conclusion. THE LAW [ 103 ] The Director’s application engages a number of provisions of the Act . In reaching my conclusion, I have considered the guiding principles set out in

section 2; the service delivery principles set out in

section 3; the best interests of the child factors in

section 4; the

section 13 principles establishing when a child is in need of protection; the protection hearing principles found in sections 40 and 41; and the CCO provisions found in

section 49. EFFECT OF THE FEDERAL ACT IN RELATION TO FIRST NATIONS CHILDREN [ 104 ] The Director helpfully supplied written submissions on the effect the Federal Act had on matters involving children of First Nations descent. The Federal Act must be applied to the circumstances of the Children. [ 105 ] Canada has recognized that provincial child protection laws apply to Indigenous children, so long as they do not conflict with Bill C-92 (which brought into force the Federal Act ) or an Indigenous law or an Indigenous governing body that has met the appropriate standard. [ 106 ] The

Preamble to the Federal Act recognizes, inter alia : (

a) the legacy of the residential school system in Canada, and the harm and trauma caused to Indigenous peoples by colonial policies and practices; (

b) the disruption experienced by Indigenous women and girls in relation to child and family service systems, and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage; and (

c) the unique circumstances and needs of Indigenous parents and other persons of Indigenous heritage. [ 107 ]

Section 1 of the Federal Act defines “child and family services” as services to support children and families, including prevention services, early intervention services, and child protection services. [ 108 ] I agree with the Director’s submission that services under the Act fall under the Federal Act’s definition of child and family services found in

section 1. [ 109 ] Pursuant to section 20(1) of the Federal Act , an Indigenous governing body may give notice of an intention to exercise its legislative authority in relation to child and family services to the Minister and government.

Pursuant to section 20(2), the Minister may enter into a coordination agreement with an Indigenous governing body in relation to the exercise of its legislative authority regarding the provision of various services described in ss. 20(2)(a-d). [ 110 ] For Indigenous laws to be paramount over the Act , an Indigenous body must either have a coordination agreement in place, or have made reasonable efforts to enter into a coordination agreement within a year after such an agreement has been requested. [ 111 ] I am unaware of any coordination agreement in place for any bodies associated with the [ omitted for publication] First Nation.

Consequently, I find there is no current conflicting Indigenous-based child protection laws that I must consider. [ 112 ] The purposes of the Federal Act, as outlined in

section 8, are to: (

a) affirm the inherent right of self-government which includes jurisdiction in relation to child and family services; (

b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and (

c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. [ 113 ] Sections 9(1-3) of the Federal Act describe principles of

interpretation that inform the provision of child and family services to Indigenous children. [ 114 ] Subsection 1 directs that national standards should be interpreted in accordance with the principle of the best interest of the child. [ 115 ] Subsection 2 places import upon cultural continuity, and directs the following interpretive principles be applied: (

a) cultural continuity is determined to be essential to the well-being of a child; (

b) the transmission of languages, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity; (

c) a child’s bests interests are often promoted when the child resides with members of his or her family or Indigenous community; (

d) child and family services are to be provided in a way that does not contribute to the assimilation of the Indigenous group, or the

destruction of the culture of that group; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered. [ 116 ] Subsection 3 requires that national standards be informed by the concept of substantive equality, including: (b-

c) a child, a child’s family member and an Indigenous group must be able to exercise rights under the Federal Act without discrimination; and (

e) a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children. [ 117 ] While the Federal Act is substantially congruent with the Act , the Director submits that where there are conflicts or inconsistencies, the Federal Act ’ s national standards must be considered paramount.

Section 4 stipulates that nothing in the Federal Act affects the application of a provision of a provincial act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provision of the Federal Act . [ 118 ] The Director submits the Federal Act ’s service delivery principles found in

section 11 are consistent with those found in

section 3 of the Act . Having reviewed each of these sections, I agree with the Director’s submission. [ 119 ] Similarly, I am satisfied the Guiding Principles found in

section 2 of the Act are consistent with the Purposes and Principles found in

section 8-9 of the Federal Act . [ 120 ]

Section 10 of the Federal Act provides that the best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services for Indigenous children. The best interests of the child is the paramount consideration regarding decisions or actions related to child apprehension. [ 121 ] Section 10(2) of the Federal Act directs that, in assessing the best interests of the child, primary consideration must be given to the child’s physical, emotional and psychological safety, security, and well-being.

This subsection emphasizes the importance of having an ongoing relationship with the child’s family and with the Indigenous group, community, or people to which he or she belongs, and of preserving the child’s connections to his or her culture. [ 122 ] Section 10(3) of the Federal Act provides a list of factors to consider in determining the best interests of an Indigenous child. Most of these factors coincide with those found in

section 4 of the Act . However, there are additional best interest factors to be considered: (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community, or people to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional, and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child. [ 123 ] The factors listed in

section 4 of the Act are not a closed list. Rather, they are provided as examples of the types of issues that are generally considered under the rubric of “best interests.” As a result, the Director submits there is no conflict or inconsistency between the Federal Act and the Act . [ 124 ] However, the Federal Act provides a more expansive list of factors to be considered when determining the best interests of an Indigenous child. These further factors must be considered. In general, primary consideration must be given to all the factors enumerated in section 10(3) when determining the best interests of an Indigenous child. [ 125 ] I agree with this

interpretation. The factors enumerated in section 10(3) are not examples of factors associated with the best interests of an Indigenous child; they are specific categories that must be addressed. [ 126 ] It appears that the most significant difference between the Act and the Federal Act as regards to the instant application is the latter’s direction that the best interests of the child be considered at all stages of the process, where as the former only requires the best interests of the child to be considered when a particular

section or subsection directs. [ 127 ] Section 49(6) (

c) of the Act directs a court to consider the best interests of the child before making a continuing custody order under subsection 5. In this sense, the Director submits that section 49(6) (

c) is consistent with the Federal Act . However, the Federal Act requires the best interests of the child be considered at all stages of the hearing. Consequently, the best interests of the child shall be taken into account in assessing the entirety of the Director’s application under s. 49. [ 128 ] A further consideration is the Federal Act ’s direction with regard to the placement of Indigenous children.

Section 16 of the Federal Act directs that the placement of Indigenous children be prioritized, to the extent it is consistent with the best interests of the child, as follows: (

a) with one of the child’s parents; (

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

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

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

(

e) with any other adult. [129] The Act’s stipulations regarding the placement of children are found in in

section 71. While the sections are similar, I am of theview the Federal Act’s provisions are to be considered paramount. ANALYSIS [130] As no finding of protection has been made, the Court must determine whether the Children were in need of protection at the timeof their removal in July 2016 before considering the Director’s application under s. 40(5): B.(B.) v. B.C. (Director, CFCS), 2005 BCCA46. [131] When there is a long delay between the time of the removal and the time the court is considering whether the child is in need ofprotection, then the child’s needs may have changed since the time of removal.

In that case, the time relevant for an assessment of thechild’s need for protection is at the time of the child’s removal and the time of the application: B.C. (Director, CFCS) v. C.(K.) and D.(R.), 2016 BCPC 284. When Protection is Needed [132]

Section 13 of the Act sets out a non-exhaustive list of circumstances where a child needs protection. The standard of proof is thestandard in civil cases, that is, the balance of probability. The weight of the evidence must show that it is more probable than not that theassertion is correct. When the Director asserts a risk of a future event, it is the risk of the future event and not the event itself that must beshown on the balance of probabilities. In considering whether abuse will occur in the future, it is appropriate to consider past events: S. (B.) v.

British Columbia (Director of Child, Family and Community Service) (1998), (BC CA), 38 RFL (4th) 138(BCCA). [133] S.H. has a limited capacity to parent the Children.

While I accept that she can learn rudimentary parenting skills with repetitionand practice, she requires close monitoring from an individual who possesses the willingness and ability to intervene to keep theChildren safe if she is unable to foresee the risk she may pose to the Children by her action or inaction. [134] S.H.’s intellectual limitations are particularly difficult, insofar that they manifest in such a way that she does not recognize herdeficits.

She believes she has the ability to care for the Children without any assistance, let alone with supervision from a qualifiedsupervisor. [135] This is contrary even to the 2008 PCA, which was the more optimistic of the two opinions regarding S.H.’s abilities. Dr.Eirikson opined that S.H. remained highly vulnerable to the whims of the moment and suggestions of others, even if her choices wereinconsistent with a child’s need for stability (Dr. Eirikson’s Report, Page 40). [136] S.H. has not had parenting responsibility for the Children since May 2016.

The Director’s decision to allow S.H. to parent theChildren prior to that was contingent upon I.M.’s cooperation, and assurance that he would provide direct supervision. Absent I.M.’sinvolvement, it is not reasonable to believe that S.H. could simply resume parenting the Children. The fact that there are now threechildren compounds the concerns regarding S.H.’s parenting ability. [137] A further issue has been S.H.’s historical opposition to the Director’s intervention. She has developed a mistrust of the Directorand social workers, and has largely refused to cooperate with interventions.

Her resentment toward MCFD officials has manifest as angerand, at times, threatening comments and behaviour. This is unsurprising, given her experience of losing the care of all of her children todate. [138] D.H.H. burned down the house at a time when I.M. was to be supervising S.H.’s parenting. This event demonstrates the risk thatthe Children face when not properly supervised. Additionally, prior to the signing of the VCAs, there were reports that D.H.H. was beingphysically assaulted by his older stepbrothers, and threatened with a knife by S.H.’s mother, who was suffering from dementia.

TheChildren were all noted to have significant tooth decay that had not been dealt with. [139] S.H. acknowledged that these events occurred, and I accept that they did. S.H.’s responses to these concerns was insufficient.She was simply unable to adequately protect them from a real and present threat posed by extended family members. [140] At the time of removal, I.M. was unable to directly supervise S.H.’s parenting, nor keep the Children safe if S.H.’s behaviour putthem in harm’s way.

As there was no other appropriate person available to undertake this role, I find that the Children were in need ofprotection. [141] Having considered the test outlined in S.(B.) v. British Columbia (Director of Child, Family and Community Service), I find thereis a real possibility of physical and emotional harm in the future based on an examination of S.H.’s past conduct and her existingcognitive limitations. [142] The Director submitted that s. 13(1)(

c) was also engaged, based on L.S.’s conviction for the sexual assault of his former step-daughter. L.S. has not participated in any form of reintegration assessment that would allow the Director to assess the risk, if any, heposes to the Children. As such, I cannot conclude that there is a likelihood that the Children would be sexually abused by L.S. if theChildren were to return to S.H.’s care. [143] S.H. has declined to participate in any coordinated planning with the Director that demonstrates an understanding of the risk L.S.might pose to the Children.

Nor has she provided any reasonable explanation as to how she could protect the Children. Given hercognitive limitations, she likely does not possess the capacity to understand the nature of the Director’s concern with L.S. [144] The Plan of Care filed by the Director provides for a safe, consistent living environment for the Children. S.H. has had liberalsupervised access to the Children, although she has faced certain geographic and financial barriers to exercising that access.

[ 145 ] The placement is not with S.H.’s family, or members of her cultural group. This is because no satisfactory placement with family or with members of the Children’s cultural group was put forth by S.H.

Nor was the Director able to identify anyone from S.H.’s cultural heritage that might be an appropriate placement. [ 146 ] I find the Director has satisfied its burden to prove that the Children’s parent was unable or unwilling to care for the Children, and had not made adequate provisions for the Children’s care. [ 147 ] I further find that the circumstances have not appreciably changed between the time of removal in July 2016 and the time the Director’s application was heard. S.H.’s capacity has not improved, nor is it expected to improve.

S.H. has not undertaken any programming nor gained insight or skills that might improve her capacity to parent the Children. An appropriate person has not been identified or assessed who might be able to step into the role of supervisor. [ 148 ] I thus conclude that the Children were in need of protection at the time of removal, and continue to be in need of protection at the time the Director’s application was heard. [ 149 ] D.L. identifies as Métis, and the family resides in traditional [omitted for publication] territory. This is a consideration stipulated in

section 16 of the Federal Act . The L.s appear to have been the best option in difficult circumstances. I am satisfied that the placement with the L.s pending the Director’s application has been in the best interests of the Children as defined in the Act and the Federal Act . SHOULD A CCO BE GRANTED? [ 150 ] Having made the finding of protection, I turn to an analysis of the Director’s application for a CCO pursuant to s. 49(5) and 49(6) of the Act , with consideration of the provisions of the Federal Act . 49(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

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

b) the parent will be able to meet the child’s needs 49(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. [ 151 ] S.H. seeks a “last chance” order under s. 49(7) to allow the Director to bring applications under ss. 57 and 54.01 to place the Children permanently with the L.s prior to a CCO finding. [ 152 ] Section 49(7)(

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

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months. [ 153 ] The Court must also consider

section 4 of the Act , as well as the more expansive definition of “best interests” found in subsection 10(3) of the Federal Act . Primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community, or people to which he or she belongs, and of preserving the child’s connections to his or her culture.

APPROPRIATENESS OF A SECTION 49(7) “LAST CHANCE” ORDER [ 154 ] As an alternative to returning the Children to her care, S.H. asks the Court to consider a s. 49(7) order so that a permanent transfer of custody to the L.s could be arranged via s. 54.01. This, she submits, would resolve the concern that the Children could end up with caregivers other than the L.s. Granting the Director’s CCO application would not guarantee that the Children stay with the L.s.

Nor would it guarantee S.H.’s continued access to the Children. [ 155 ] The Director submits that an order under s. 49(7) will introduce further delays and uncertainty into the process. The Children have resided with the L.s continually since May 2016, and at various other times during their lives; it is in their best interests that this matter conclude without further delay. [ 156 ] S.H.’s historical opposition is also a factor here. The Director says she is unlikely to consent to a s. 54.01 order, as she has been adamant all along that the Children be returned to her.

The Director advises that a s. 54.01 order was considered previously, but not pursued in part because of S.H.’s opposition to any plan that did not have the Children living with her. [ 157 ] I do not find that a s. 49(7) order is the appropriate disposition for the Children. I agree with the Director: such an application would introduce further delays into the process, and would not be keeping with making and implementing timely decisions regarding the Children in a timely manner. [ 158 ] The Children have been in care continually since May 2016.

I accept that some of the delay in bringing this matter before the Court has been due to difficulties related to S.H.’s cognitive capacity, and fundamental opposition to the Director’s interventions. Nonetheless, I cannot accept that a further application, which may be opposed by S.H., serves the Children’s best interests. The Children deserve finality and permanency.

[ 159 ] I am also satisfied that the Director’s plan is to move toward a permanent placement with the L.s. The Plan of Care reflects this as the only plan for the Children. C.L. has indicated her support of that plan. [ 160 ] The Court has been asked to balance the historical mistrust S.H. has with the Director against the need for a final decision for the Children. In conducting that analysis, I conclude the balance favours the making of a final decision. That, in my view, is in keeping with the guiding principles of the Act and Federal Act , and with the best interests of the Children.

DECISION ON THE DIRECTOR’S APPLICATION PURSUANT TO S. 49(5) [ 161 ] It is clear that S.H. loves the Children, and desires to parent them. The events surrounding their removal, and the permanent loss of authority to parent her other children have been traumatic. These experiences have led her to be mistrustful of the Director, and likely underscore her unwillingness to work with the Director to address the identified concerns.

S.H.’s cognitive capacity results in her having little insight into her limitations as a parent, which undoubtedly exacerbates the chasm that has developed between her and the Director. [ 162 ] I accept the conclusions of the two detailed PCAs: S.H. remains fundamentally unable to safely parent the Children without considerable assistance. It is conceivable that S.H. could make a meaningful contribution to co-parenting the Children; however, she could only do so in a highly controlled environment with a supervisor who was both willing and able to step in if and when S.H. needed assistance.

As stated previously, such environments are difficult to create in practice. [ 163 ] Little progress has occurred in the three and a half years since the Children were removed. S.H. has not taken steps that demonstrate a willingness or ability to learn any new skills that would allow her to co-parent the Children. She has not engaged the Director to establish a viable plan moving forward. [ 164 ] S.H. offers L.S. as a potential supervisor, or co-parent, for the Children.

However, neither S.H. nor L.S. has communicated with the Director in a way that would allow the Director to assess L.S.’s viability. [ 165 ] The Director’s concerns regarding L.S. are legitimate. He appears not to take full responsibility for the sexual offence perpetrated against his then 13-year-old stepdaughter. He has not participated in an assessment to determine his candidacy to be in a home with young female children, or children in general. [ 166 ] Nor does L.S. believe S.H. requires supervision. He believes she is a fit parent, and bristles at any suggestion that her parenting would require supervision.

As S.H. has not had responsibility for parenting any children since she and L.S. commenced their relationship, it appears that L.S.’s conclusion in this regard is without any practical foundation. [ 167 ] The Children continue to reside in a stable home with foster parents that they have known most of their lives. The Children are well integrated into the L. family. Their medical and dental health is good. The older two children are doing well in their homeschool environment. [ 168 ] The Plan of Care reinforces the Children’s connection to their Indigenous heritage.

The L.s. have forged relationships with I.M’s side of the family, and are open to S.H.’s relatives being more involved in the Children’s lives. The L.s believe strongly in maintaining the Children’s connection to their heritage, and they participate in a variety of ceremonies and cultural events within the traditional [ omitted for publication] territory in which they reside. They speak rudimentary [ omitted for publication] language at home, and plan to develop a more formal language instruction for the Children. [ 169 ] D.H.H. has expressed his desire to remain living with his siblings, and with the L.s.

He told his counsel that his siblings expressed a similar sentiment. While D.H.H. loves his mother and wishes to continue to see her, he does not wish to leave his current placement. [ 170 ] D.H.H. is opposed to the Director’s application on the basis that, if granted, there is some risk that it could lead to an open adoption for him and his siblings. The Director’s Plan of Care indicates the intention is that the Children reside with the L.s permanently. C.L. has also indicated her willingness to provide for the Children on a permanent basis, and move toward guardianship.

Nonetheless, D.H.H.’s position is that the Director ought to proceed with applications under s. 57.01 and 54.01 to allow for permanent custody to be transferred to the L.s. [ 171 ] D.H.H. takes the view that if S.H. opposes an application under ss. 57.01 and 54.01, the Director’s application should be granted as the preferred alternative. S.H. has not consented to a s. 54.01 permanent transfer of custody.

As such, I take D.H.H.’s positon to be that he supports the Director’s application. [ 172 ] The L.s remain open to S.H. having access to the Children, virtually without restriction, contingent on the disposition of the Director’s application. [ 173 ] S.H. submits that she is in a better circumstance now than when the Children were removed, as she no longer has to care for her mother. This is certainly the case. However, it does not follow in my view that S.H. would have a greater capacity to parent the Children now that her mother has passed on.

The stress associated with her mother would effectively be replaced with the responsibility to care for the Children. The issue is not so much whether S.H.’s capacity to parent was impaired by the extra responsibility to care for her ailing mother. Rather, it is S.H.’s ultimate capacity to provide adequate care for the Children, based on her cognitive limitations. I accept that S.H. was in a worse situation when caring for her mother, and dealing with the impending passing of her partner.

However, I do not accept that, without these stressors, she would be able to assume the mantle of parenting responsibilities without considerable help, direction, and supervision. [ 174 ] It is clear that S.H.’s cognitive capacity is unlikely to improve within a reasonable time. There was little change in her capacity between the two PCAs that informed the Director’s application. The main difference at the time of the latter PCA appeared to be the higher level of family and community support in place at that time.

[ 175 ] A similar level of support was not in place at the time of the hearing of the Director’s CCO application. S.H. asserts that she would have the Children reside with her and L.S. in the remote [ omitted for publication] area. S.H. submits that L.S. would be an appropriate supervisor.

Despite this, S.H. does not accept that she requires any kind of supervision. [ 176 ] L.S. has taken no steps to meet with the Director to determine 1) if he could be integrated into a home where children reside; or 2) if he could be considered an appropriate supervisor for S.H. [ 177 ] Having regard to the evidence tendered during this hearing, and taking into account S.H.’s past conduct, the Plan of Care and the Children’s best interests as described in s. 4 of the Act and s. 10(3) of the Federal Act , I do not find there is a significant likelihood that the circumstances that led to the Children’s removal will improve within a reasonable time.

Nor do I conclude that there is a significant likelihood that S.H. will be able to meet the Children’s needs. I am of the view that the Children’s bests interests are served by remaining in the Continuing Custody of the Director. [ 178 ] For these reasons, the Director’s application is granted.

SECTION 56 ACCESS ORDER [ 179 ] S.H. seeks an order pursuant to s. 56 that would grant her access to the Children. The Director opposes such an order. [ 180 ] Section 56(1) of the Act reads: 56(1) If a continuing custody order is in effect, a parent or any other person may apply to the court for access to the child. 56(3) The court may order that the applicant be given access to the child if access (

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

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

c) is consistent with the wishes of the child, if 12 years of age or older. [ 181 ] In considering how these sections of the Act are to be applied, the British Columbia Court of Appeal set out the following principles in A.M. v. Director of Child, Family and Community Service 2008 BCCA 178 (as summarized by Skilnick, J. in J.L.F. v. Director, 2010 BCPC 17 at para. 23 ): 1. When a continuing custody order is made, parents lose the right of access to the child. Access then becomes a right of the child and not of the parent (Para. [26] and [27].) 2.

An order for access may exist alongside a continuing custody order (Para. [28]). 3. Where a continuing custody order exists, an order for parental access is the exception, not the rule (Para. [29]). 4. The principle of preserving family ties should only be a consideration in granting access, where a continuing custody order has been made, if it is shown to be in the best interests of the child, having regard to all relevant factors, including the security or health of the child (Para. [29] and [30]). 5.

An adoption which is in the best interests of a child who is the subject of a continuing custody order must not be hampered or jeopardized by the existence of a right of access (Para. [29] and [31]). 6. Access to a child who is the subject of a continuing custody order should not be granted if its exercise would have negative effects on the physical or psychological health of the child (Para. [29] and [30]). 7. Any access which is ordered for such a child must be consistent with the child’s plan of care (Para. [21]). 8.

These principles are binding on the Provincial Court in considering whether to make an access order in favour of a biological parent where the plan of care is for adoption. It is an error of law if a judge fails to exercise his or her discretion guided by these principles (Para. [32] and [33]). [ 182 ] S.H. submits that an order guaranteeing her access meets all of the criteria established in s. 56(3).

Although it was not argued, I accept that S.H. takes the view that the more expansive definition of “best interests” reflected in s. 10(3) of the Federal Act further supports an order for access. [ 183 ] The Director’s opposition is based primarily on policy considerations. The Director argues an access order to S.H. could interfere with permanency planning for the Children if, for example, another potential adoption arrangement was identified. I understand this is the position usually taken by the Director in applications of this kind.

ANALYSIS [ 184 ] In reference to the subsection headings found in s. 56 , I find as follows: Best Interests of the Children [ 185 ] S.H. has exercised access with the Children throughout the time they have been in the Director’s care. She has done so with the consistent assistance of the L.s. The L.s have appropriately supervised the access visits. They are willing to continue to provide supervised access.

[ 186 ] Continued access visits will guarantee the Children retain a connection to their [ omitted for publication] heritage. S.H. has testified as to her desire to continue to speak [ omitted for publication] to the Children during visits. She wants to expand their exposure to traditional activities such as moccasin making and beadwork. These factors are directly reflected in s. 10(3) of the Federal Act , which requires a court to consider, inter alia : (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

c) the nature and strength of the child’s relationship with his or her parent; and (

d) the importance to the child of preserving the child’s cultural identity and connection to the language and territory of the Indigenous group, community or people to which the child belongs. [ 187 ] Similarly, the Act ’s definition of “bests interests” in

section 4 places import on a consideration of the child’s cultural, racial, linguistic, and religious heritage. [ 188 ] I do not see an access order as being inconsistent with the Children’s best interests. The Plan of Care [ 189 ] The Plan of Care is centred on an upbringing that maintains significant exposure of the Children to their Indigenous heritage. The Director’s plan is to allow the L.s to “…continue to immerse the children in the children’s culture…” and maintain family connections. [ 190 ] Again, there is no plan other than for the Children to continue to reside with the L.s.

The L.s wish to adopt the Children. Wishes of the Child [ 191 ] D.H.H. is the only child over 12 years of age. His views, as expressed via the letter supplied by Richard Bjarnson and marked as Exhibit 2 on these proceedings, are that he would like visits with his mother to continue. An access order is in my view consistent with the wishes of D.H.H. DECISION [ 192 ] I accept that, from the Director’s position, a s. 56 order mandating access to S.H. could interfere with permanency planning. However, in this circumstance the Plan of Care is for the Children to continue to reside with the L.s.

There is no other plan for the Children. C.L. has indicated her desire to adopt the Children. The L.s have shown themselves to be willing and able to supervise S.H.’s access to the Children, and have maintained an open door policy in this regard. The L.s place great import upon the Children maintaining contact with their heritage, and with S.H. [ 193 ] The Director’s plan is to continue with regular visits between the Children and S.H., so long as they continue to be in the Children’s best interests.

There has been no suggestion in the past year that visits have been curtailed or prohibited because S.H. acted inappropriately. [ 194 ] In all the circumstances, and with particular consideration of s. 4 of the Act and s. 10(3) of the Federal Act , I am of the view an order for access is appropriate. Such an order will ensure the Children continue to benefit from a cultural, spiritual, and familial connection with their mother. [ 195 ] I find it appropriate that access visits continue to be supervised at the discretion of the Director.

SUMMARY [ 196 ] I make the following orders: [ 197 ] Pursuant to s. 40 of the Child, Family and Community Service Act , R.S.B.C. 1996 C. 46 (the “ Act ”), the Court finds that D.H.H. born [omitted for publication], T.M.M. born [omitted for publication], and Q.N.H. born [omitted for publication], are in need of protection. [ 198 ] Pursuant to s. 49 of the Act , the Court orders that D.H.H. born [omitted for publication], T.M.M. born [omitted for publication], and Q.N.H. born [omitted for publication], shall be in the continuing custody of the Director. [ 199 ] Pursuant to s. 56, S.H. shall have reasonable access to D.H.H. born [omitted for publication], T.M.M. born [ omitted for publication], and Q.N.H. born [ omitted for publication], supervised at the discretion of the Director. ____________________________ The Honourable Judge P.D.

Whyte Provincial Court of British Columbia