Director v. M.C. and D.W.C. Date:, 2017 BCPC 327

Citation: Director v. M.C. and D.W.C. Date: 20171010 2017 BCPC 327 File No: 10473 Registry: Prince Rupert 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: C.D.C. , born [deleted for publication] K.M.C., born [deleted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.C. PARENT AND: D.W.C. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. Jackson

Counsel for the Director: J. Yuen Counsel for the Parent, M.C.: B. Slater Counsel for the Parent, D.W.C. : S. Davidson Place of Hearing: Prince Rupert , B.C.

Date of Hearing: September 27, 2017 Date of Judgment: October 10, 2017 Background [ 1 ] M.C. and D.W.C. had two children together, C.D.C. born [deleted for publication] and K.M.C. born [deleted for publication]. [ 2 ] The Ministry apprehended both children on July 4 th , 2017 and this presentation hearing commenced September 27 th , 2017. [ 3 ] The parents had a lengthy history with the Nova Scotia Department of Community Services starting in 2015 after the birth of K. M.C. had suffered from post-partum depression and D.W.C. from substance dependency.

The Nova Scotia Department also alleged violence in the parents’ relationship. [ 4 ] After the birth of C.D.C., the parents entered an agreement with the Nova Scotia Department of Community Services. This agreement included addiction counseling for both parents, residence of both children to be in British Columbia with M.C.’s mother, C.M. and only supervised and separate access to the children. [ 5 ] The children and shortly thereafter the parents relocated to Prince Rupert. [ 6 ] On June 19 th , the parents agreed to a Safety Plan with the Ministry.

In that plan the children would again live with their parents under the supervision of the Ministry with daily checks on the children by C.M. [ 7 ] On June 28 th , 2017 D.W.C. returned home intoxicated by alcohol and cocaine and entered into a verbal argument with M.C. in the presence of the children. M.C. asked D.W.C. to leave and he refused. She called C.M. who attended and also told D.W.C. to leave. He again refused.

The police were called and upon their attendance D.W.C. left. [ 8 ] D.W.C. disclosed that M.C. had also been using cocaine the night before. [ 9 ] On June 28 th , 2017 the Ministry signed a new Safety Plan with M.C. That agreement precluded D.W.C. from having contact with the children until he had met the supervising social worker and his contact was approved.

As well it was agreed that C.M. would reside with M.C. until D.W.C. “stabilized.” M.C. stated that she was separating from D.W.C. because of his ongoing substance abuse. [ 10 ] On July 4 th , 2017 the Ministry received a report that as a result of an appointment at Adult Mental Health on June 29 th , 2017 the clinician was concerned that M.C. was suicidal. [ 11 ] The Ministry was advised that on June 30 th , 2017 M.C. had attended the Prince Rupert Hospital to obtain a refill of her Clonazepam medication and that “the physician and nursing staff disclosed concern for M.C.’s overall emotional wellbeing while at the hospital.” [ 12 ] The Ministry received a report that M.C. had left “her home on July 3th at 7:30 p.m. to ‘smoke a joint’.

M.C. did not return home until 2:00 a.m. the following day. [ 13 ] On July 5 th , 2017 the parents attended the Ministry office at approximately noon. The Presentation Report states that, “both parents smelled strongly of alcohol and appeared to be fairly out of it. Two MCFD social workers heard M.C. and D.W.C. screaming at each other in the hallway and reported disturbance to the mall manager.

The supervising social worker told them that she could not meet them until 3:00 p.m. and until they had “sobered up.” M.C. stated that she was not leaving and had not been drinking. [ 14 ] Later that day the children were apprehended and placed with C.M. Evidence [ 15 ] The Ministry called the original supervising social worker, Leslie Rauschenberger. She provided the information in the Presentation Report to the Court Form A with some additional detail. [ 16 ] The Ministry also called the current supervising social worker, Tanya Simmons. She has supervised the file since the

apprehension. She testified that the parents have not contacted her since the apprehension but that she has had almost daily contact with C.M. She added that the Ministry had funded M.C. to accompany C.M. and K.M.C. to a medical appointment in Vancouver in mid- September. [ 17 ] The Ministry also called C.M. She testified that she had also been involved in the care of the children in Nova Scotia under the supervision of that province’s Department of Community Services to avoid the children going into foster care.

She added that originally after the apprehension M.C.’s contact with the children was sporadic but since the return of the children on September 17 th , 2017 from a medical trip to Vancouver, M.C. has had daily contact to tuck the children in. [ 18 ] In cross-examination, C.M. stated that she was with M.C. before she attended at the Ministry and that she had not been drinking while in her presence. [ 19 ] D.W.C. testified that he had moved to Terrace a week before this hearing to take a job.

He added that he had been dry for 62 days and without drugs for approximately three months. [ 20 ] He testified that he had lied out of revenge when he said M.C. was doing cocaine on June 28 th , 2017. [ 21 ] He testified that at the Ministry on July 5 th , 2017 he was on a “bender” and smelt of alcohol. He stated that he was not intoxicated but stank of alcohol. [ 22 ] He testified that M.C. is no longer his girlfriend but that she remains a friend and they are supportive of one another.

He added that he wants addiction counselling including a residential program and will arrange one as soon as work allows. [ 23 ] Jan DeMoissac testified for M.C. Ms. DeMoissac is the manager of the emergency department of the Prince Rupert Hospital. She testified that as a result of M.C.’s complaint about a significant delay in being treated she had reviewed the department records and interviewed the staff on August 13 th , 2017. There was no record or memory of concerns about the emotional wellbeing of M.C. on June 30 th , 2017. [ 24 ] Patricia Jones testified for M.C. Ms.

Jones is a Registered Psychologist and M.C. became a patient the last week of June 2017. She testified that she saw M.C. on June 28 th , 2017 and had no concerns over suicide. She added that a receptionist had called the police about a possible suicide because M.C. had been very emotional on the telephone when arranging the appointment and the call had been dropped. [ 25 ] Ms. Jones also testified that on July 5 th , 2017, M.C. had appeared at her office at approximately 1:30 p.m. for a 2:00 p.m. appointment.

She did not smell of alcohol and her appearance was normal. [ 26 ] M.C. testified that she suffers from depression, anxiety and a broken tailbone. She added and listed a number of medications she takes. [ 27 ] M.C. testified that she is not using cocaine and D.W.C.’s accusation in June was false. [ 28 ] M.C. testified that she was emotional on July 5 th at the Ministry office as C.M. had already told her that the children were apprehended.

She stated that she had not been drinking. [ 29 ] M.C. testified that she had falsely accused D.W.C. of alcohol use in her last two complaints to the Nova Scotia Department. [ 30 ] M.C. testified that on July 3 rd , 2017 she had left the home to “smoke a joint” but had waited to return until the effects had worn off. She then was observed by C.M. coming into the apartment with a bassinette. [ 31 ] In cross-examination, M.C. stated that she used marijuana recreationally and to counter the anxiety created in her by the Effexsor medication.

She added that she has not used marijuana for two months. [ 32 ] In cross-examination, M.C. stated that D.W.C. has issues with alcohol, marijuana, cocaine and gambling. She agreed that her mental health issues and need for medication is long-term. Analysis [ 33 ] This was a presentation hearing under s33.3, of the Children, Family, and Community Services Act .

On the Form A Report to the Court there are clearly prima facie grounds for the Ministry to conclude both that the children’s health or safety is in immediate danger and no other less disruptive measure is adequate to protect the child. [ 34 ] The procedure for a presentation hearing is different from that of a protection hearing. Paragraph 15 of B.S.R. v. The Director, 2016 BCSC 1369 states, “At the presentation stage, the issue is not whether the child needs to have protection and no such finding is required (citing BR v. KK , 2015 BCSC 1658 ). [ 35 ] Paragraph 16 of B.S.R. v.

The Director adopts the logic of Director v. C.P. , 2015 BCPC 360 at paragraphs 28 through 32. I summarize these as:

a) the court “must” give deference to the evidence of the director;

b) the court must assume if there is a dispute of facts, the Director is accurate as per Director v. K(W.H.) BCPC 307;

c) the standard of proof is lower than the balance of probabilities where there is a risk of injury to the child as per Superintendent v M.(B.) (BC SC), 1982 37 BCLR 32 (BCSC);

d) the onus on the Director is of establishing a prima facie case as per R.J.(A.) [1997] Civ. L.D. (BCPC);

e) the presentation is comparable to a preliminary hearing as per T.(K.M.) v. T.(J.D.), [1998] BCJ 822. It reads: The court “determines only whether there is admissible evidence which if believed could lead to a finding that the child is in need ofprotection. If so the matter is set for a protection hearing.

f) As per B.B. v. Director, 2005 BCCA 46 in paragraph 14, “The court’s function is generally not to make findings of credibility at thepresentation stage. Conflicting facts are left to full determination at the protection hearing stage, unless the facts the Director seeks toestablish are manifestly wrong or untrue or unlikely to have occurred.” [36] Similarly in S.M. (Re), [1998] B.C.J. 2204 in paragraph 26 it was held that “on the first stage any dispute about the facts allegedby the Director must be resolved in favour of the Director unless they are manifestly wrong or untrue or most unlikely to have occurred.

The use of the adjective “most” to modify “unlikely” is even narrower than the wording of B.B. v. Director. [37] The Director’s evidence is of risk to the children by addictions of their father, D.W.C. and the lack of mental health stability ofM.C. [38] D.W.C. admitted he should not have the children returned to him. He also testified he has been “dry” for 62 days and that he istaking steps to deal with his addictions such as Narcotics Anonymous. He also plans to take counselling. He has found work albeit onlya few weeks ago.

He retracted, under oath earlier allegations he had made about M.C. and supports the children being returned to herunder supervision. [39] There is also a dispute between the parents and the Ministry whether the parents have communicated or attempted to communicate their progress to the Ministry since July 5th. [40] It is very disappointing that much of the evidence of M.C. was not shared with the Ministry which could have been the basis fordiscussion and progress towards an agreed plan of return. [41] If this had been a protection hearing where credibility was to be assessed, I would have preferred some of M.C.’s evidence withregard to some of the incidents but not all of the disputed facts. [42] However, this court cannot conclude on all the evidence before it that the facts that the Director seeks to establish aremanifestly wrong, or untrue or unlikely to have occurred.

Determination of credibility and findings of fact must be left to the trier of factat the protection hearing. [43] Accordingly, the Director has established a prima facie case that the children are in need of protection. As per s. 35(2) of theChildren, Family, and Community Services Act the court has four options. The status quo is working. There is a pattern of dangerousbehavior by the parents, intervention by a provincial agency, separation of the parents, a lessening of agency control, reconciliation of theparents, another episode of dangerous behavior and intervention, etc.

More time is needed to ensure both parents have stabilized theirlives. [44] Therefore this court makes an order under s. 35(2)(

d) placing the two children on an interim basis in the custody of a personother than a parent under the Director’s supervision on the five conditions sought in the Report to the Court Form A marked as Exhibit1. That person is C.M. ____________________________ W. F. M. Jackson Provincial Court Judge