Director v. N.M.B. and P.W.O. Date:, 2015 BCPC 450

Citation: Director v. N.M.B. and P.W.O. Date: 20151002 2015 BCPC 0450 File No: 1025 Registry: Nelson 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: T.M.O. , born [DOB] P.N.O., born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: N.M.B. and P.W.O. PARENTS P.N.O. CHILD REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Director: G. Stacey

Counsel for the Parent: (for N.M.B.) T. Connolly Appearing on his own behalf: P.W.O. Counsel for P.N.O. : T. Underwood Places of Hearing: Nelson and Castlegar , B.C. Dates of Hearing: September 8 and 30, 2015 Date of Judgment: October 2, 2015 [ 1 ] The children T.M.O. and P.N.O., aged 10 and 14 respectively, were taken into the care of the Director following an incident on June 2, 2015 when T.M.O. was found in the Walmart parking lot with her mother N.M.B., who was about to enter a pickup truck. N.M.B. was intoxicated. [ 2 ] The Director has applied for a Temporary Custody Order under section 41(1) (

c) of the Child, Family and Community Service Act R.S.B.C. 1996, c. 46 and amendments thereto (the C.F.C.S.A. ). The Director seeks a finding that the children are in need of protection, and an order that the children remain in the custody of the Director for six months. [ 3 ] N.M.B., the mother of the children, seeks a finding that the children are not in need of protection. In the alternative, the mother seeks an order under section 41(1) (

a) that the children be returned to the parents and be under the Director's supervision for a period of up to six months. The father, P.W.O., who appeared on his own behalf at the hearing, joined the mother in that submission. [ 4 ] P.N.O., who was represented by counsel at the hearing, submitted through his counsel that he wished to be returned to his parents. BACKGROUND [ 5 ] The family has a troubled history. N.M.B. is the mother of six children. She has struggled for many years with a deeply entrenched addiction to alcohol. Her four oldest children have been removed and no longer live with her.

P.W.O. is the father of her three youngest children. He suffered a brain injury in a motorcycle accident in August 2013. He has not yet recovered from that injury, and may never be able to function in the manner that he did before the accident. [ 6 ] P.W.O. and N.M.B. are members of the Doukhobor community. A part of P.W.O.’s family heritage includes the internment of Doukhobor children in a residential school at New Denver in the 1950’s. [ 7 ] The recent troubles within the family revolve around domestic violence and substance abuse.

Inadequate supervision of the children, which is reflected in their school attendance, is a third concern. [ 8 ] N.M.B. and P.W.O. have three children together. Their oldest child, A.O., is seventeen. She was the subject of an order under

section 54.01 of the C.F.C.S.A . in May 2015, permanently transferring custody of her to her maternal aunt. A.O. had been removed from her parents’ care on April 9, 2014 after being assaulted by P.W.O. In addition, there were reports that P.W.O. had assaulted his wife N.M.B., and a report from P.W.O.’s mother that N.M.B. had assaulted P.W.O. Violence has occurred between the members of this family unit for many years. [ 9 ] However, in a safety assessment dated July 31, 2014, following the removal of A.O., a social worker noted, "While we cannot ensure (A.O.’

s) safety within the home, there is no indication that either (T.M.O. or P.N.O.) have been physically harmed by their dad which leaves them exposed to alleged intimate partner violence and (N.M.B.’

s) alcoholism." Based on the evidence at the hearing with respect to violence within the family unit, that assessment remains accurate today. [ 10 ] A second issue for this family is N.M.B.’s profound addiction to alcohol. She has been through residential treatment for alcoholism on three separate occasions, in programs of up to three months duration. Despite the exposure to counselling, she continues to need to use alcohol as a crutch in times of heightened stress.

Her husband's brain injury appears to have resulted in an exceptional amount of emotional and financial stress. [ 11 ] N.M.B. testified that on June 2, 2015, she drove with her daughter T.M.O. to the Chahko Mika Mall in Nelson, BC. While her daughter was in a bookstore, she went to a liquor store and purchased a mickey of vodka. She then went into the washroom and drank about half of the bottle of vodka. She went into the Walmart store, where she encountered her sister. She and her sister are estranged from each other.

Her sister formed the opinion that she was impaired by alcohol, and followed N.M.B. back to her pickup truck. A physical altercation ensued, which saw the two sisters wrestling on the asphalt of the Walmart parking lot. T.M.O. was present to see this. N.M.B. was arrested by the police because of her intoxication and she was held in custody until early the next morning. T.M.O. and her brother P.N.O. were taken into the custody of the Director the next day. [ 12 ] In the months immediately prior to the incident on June 2, N.M.B. had approached the problem of addressing her alcoholism in a half-hearted manner.

However, since June 2, she has registered for and commenced attending three separate therapeutic programs. She has been attending a relapse prevention group, facilitated by a worker at the Nelson Mental Health office. She has been attending a second group called Foundations, which is intended to provide group members with the skills for what N.M.B. called "leading a virtuous life". Finally she has been attending a group based on Buddhist teachings, which she finds similar to the teachings of the Doukhobor faith she is familiar with. In addition, she has the support of her family doctor, Dr.

Noiles. [ 13 ] One of the triggers for N.M.B.’s relapse appears to have been the stress created for her by P.W.O.’s head injury.

[ 14 ] Finally, it appears that the parents have inadequately supervised the attendance of the children at school. N.M.B. testified that her daughter T.M.O. had missed school because she was uncomfortable about going to swimming lessons, and that P.N.O. had missed school after a run in with his older sister A.O. that left him unsettled. Those explanations fall far short of explaining the number of missed days of school revealed in the children’s school reports. LAW [ 15 ] Sections 40 and 41 of the C.F.C.S.A. provide: 40

(1) At the protection hearing the court must determine whether the child needs protection.

(2) If the court finds that the child does not need protection, it must (

a) if the child was removed, order the Director to return the child as soon as possible to the parent apparently entitled to custody unless the child has already been returned, and (

b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3).

(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the Director, and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. 41

(1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child's best interests: (

a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the Director's supervision for a specified period of up to 6 months; (

b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the Director's supervision, for a specified period in accordance with

section 43; (

c) that the child remain or be placed in the custody of the Director for a specified period in accordance with

section 43; (

d) that the child be placed in the continuing custody of the Director.

(1.1) When an order is made under subsection (1) (

b) or (c), the court may order that on the expiry of the order under subsection (1) (

b) or (

c) the child (

a) be returned to the parent, and (

b) be under the Director's supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the Director unless (

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

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

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under

section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the Director supervise the child's care for a specified period of up to 6 months.

(3) The court may attach to an order under this

section any terms or conditions recommended by the Director to implement a plan of care. [ 16 ] The first issue then is whether the children need protection.

If there is a finding that the children need protection, the second issue is which of the four orders in section 41 (1) are in the children's best interest. [ 17 ] Upon a consideration of the facts of this case, including the incident on June 2, 2015, and the conduct of the parents both before and after that incident, I am satisfied that the Director has established on a balance of probabilities that there is a real possibility of the children suffering physical or emotional harm, and that the children are in need of protection. [ 18 ] That finding raises the question of which of the four possible orders under section 41 (1) is in the best interests of the children.

I am guided by the principles set out in

section 2 of the C.F.C.S.A. , and in particular

section 2(b), which says, "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." [ 19 ] I am satisfied that it is appropriate to make an order under section 41(1)(a), that the children be returned to the custody of their parents and be under the Director's supervision for six months. I expect the children to be returned immediately.

[ 20 ] The terms of the supervision order will be:

a) N.M.B. must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription.

b) N.M.B. must not reside at any place where any other resident has illegal drugs or alcohol in his or her possession.

c) N.M.B. must not enter any liquor store, beer and wine store, bar, pub, lounge or other establishment from which minors are prohibited at any time by the terms of the establishment's liquor license.

d) N.M.B. must provide to the Director proof of her attendance at no fewer than two group or individual counselling meetings each week during the duration of this order.

e) P.W.O. must comply with the instructions of his physicians regarding the treatment of his head injury.

f) N.M.B. and P.W.O. must cooperate in the preparation of an educational assessment regarding the educational needs of P.N.O., and provide a copy of the educational assessment to the Director upon receipt.

g) N.M.B. and P.W.O. must ensure that their children attend school each day, and they must report to the Director in a manner satisfactory to the Director each time either child is absent from school.

h) N.M.B. and P.W.O. must permit the Director to visit the children in private, upon reasonable notice.

i) The Director may remove the children if N.M.B. and P.W.O. do not comply with one or more of the terms of this order. [ 21 ] At the conclusion of this hearing, this matter was adjourned to October 6, 2015 at 9:30 am. At that time, the parties may speak to any additional terms of the order that they think are appropriate. ____________________________ The Honourable Judge R. Hewson