Director v. C.A.A. and P.M. Date:, 2016 BCPC 13

Citation: Director v. C.A.A. and P.M. Date: 20160127 2016 BCPC 0013 File No: 13241 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: I.W.M , born [omitted for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.A.A. PARENT AND: P.M. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND

Counsel for the Director: Ms. Charlene LeBeau Counsel for the Parent, P.M.: Mr. Stephen Soll Counsel for the Parent, C.A.A.: Ms. Linda Thomas Place of Hearing: Kamloops , B.C. Dates of Hearing: September 14-18 and December 10-11, 2015 Date of Judgment: January 27, 2016 INTRODUCTION [ 1 ] The Director has applied for an order that I.W.M. be placed in the continuing custody of the Director. [ 2 ] I.W.M. was born in Kamloops on [omitted for posting]. Her parents are C.A.A. and P.M. C.A.A. is Inuit and P.M. is Mohawk.

C.A.A. and P.M. met in Yellowknife and lived in a common law relationship, mostly in Ottawa, for about two years. The couple was not together when I.W.M. was born though P.M. was present for her birth. [ 3 ] I.W.M. has a number of half-siblings on both sides of her family. C.A.A. and P.M. have had some issues in raising their children and both have had interactions with child protection agencies, C.A.A. in Alberta and British Columbia and P.M. in Ontario. [ 4 ] I.W.M. has been the subject of a number of child protection orders in British Columbia since shortly after her first birthday.

I.W.M. was first removed from her mother’s care by the Director on April 2, 2010. C.A.A. had left I.W.M. with a caregiver, ostensibly for an hour, but then did not return for eight hours without providing adequate food or supplies for I.W.M. By the terms of an interim supervision order, I.W.M. was returned to her mother’s care on April 7, 2010. On April 28, 2010, the Director obtained a three month supervision order. C.A.A. consented to both the interim and three month supervision orders.

The three month supervision order expired on July 28, 2010. [ 5 ] I.W.M. was next removed by the Director on September 23, 2010. The circumstances were similar to the first removal. C.A.A. had left I.W.M. with her cousin to go to the store but had not returned by the next morning and had not made appropriate arrangements to leave I.W.M. with her cousin for that length of time. An interim custody order was made on September 29, 2010 and a three month temporary custody order (“TCO”) was made on October 20, 2010.

C.A.A. did not appear on September 29, 2010 but was represented by counsel and consented to the three month TCO on October 20, 2010. [ 6 ] The TCO and/or total time in care were extended a number of times until the Director applied for a continuing custody order (“CCO”) under s. 41(1) (

d) of the Child, Family and Community Service Act , RSBC 1996, c. 46 (the “ CFCSA ”). P.M. was not notified of either removal and service on P.M. was dispensed with when the court made the three month supervision order and the initial three month TCO. Though P.M. was made aware that I.W.M. was in care in April 2011, service on him was also dispensed with for several subsequent extensions of the TCO and/or total time in care. [ 7 ] The Director’s CCO application was first before the court on December 14, 2011. P.M. travelled from Ottawa to attend court personally on that date.

The Director’s application was adjourned for a variety of reasons before being heard by me on January 15 to 17, 2014. In the interim, two important things happened. P.M. filed an application for sole custody and guardianship under the predecessor legislation to the Family Law Act , SBC 2011, c. 25 (the “ FLA ”) and Ms.

C.A.A. made substantial progress towards dealing with her addictions and stabilizing her life. [ 8 ] By the time of the January 2014 hearing, an order had been made to hear P.M.’s application together with the Director’s application and the FLA had become the governing family law legislation in British Columbia. P.M.’s application proceeded as an application for guardianship under the FLA . As well, in view of C.A.A.’s progress, the Director had softened its position and sought a so-called “last chance order” under s. 49(7) (

c) of the CFCSA . [ 9 ] I reserved judgment to February 6, 2014. On that date, I granted the Director’s requested last chance order by ordering that I.W.M. remain in the temporary custody of the Director for a further six months to allow the Director to transition I.W.M. into C.A.A.’s care. I also adjourned P.M.’s application for guardianship to give him additional time to satisfy me that it would be in I.W.M.’s best interests to appoint him as a guardian.

I seized myself of all future CFCSA and FLA applications regarding I.W.M. [ 10 ] Unfortunately, C.A.A. was unable to follow through on the transition plan and, on August 6, 2014, the Director filed an application for a CCO under s. 49(9) of the CFCSA . For a variety of reasons, including a complete turnover of counsel, the Director’s second CCO application did not come on for hearing before me until September 14 to 18, 2015 with continuation dates on December 10 and 11, 2015.

By the time of the hearing, C.A.A. had consented to an order under the FLA making P.M. a guardian and granting P.M. primary care of I.W.M. so the only application before me is the Director’s application for a CCO. [ 11 ] As my February 6, 2014 order was a last chance order, s. 49(10) of the CFCSA provides that I can now make only one of two orders.

After considering the factors in s. 49(6), I can either order that I.W.M. be placed in the continuing custody of the Director or I can order that I.W.M. be returned to the parent apparently entitled to custody. [ 12 ] If I make the CCO requested by the Director, the Director plans to transition I.W.M. into the care of her oldest sister, C.M. (1), who would ultimately adopt I.W.M. As C.A.A. has consented to the FLA order granting guardianship and primary care of I.W.M. to P.M., he has become the parent apparently entitled to custody.

If I do not make the CCO requested by the Director, I must, therefore, order that I.W.M. be returned to P.M.

ISSUE [ 13 ] The only issue before me is whether I should place I.W.M. in the continuing custody of the Director or return her to P.M. ANALYSIS [ 14 ] I will begin my analysis by summarizing the position of the parties. Next, I will set out the relevant legislative framework. I will then analyse the factors in s. 49(6) before reaching my conclusion. The Director’s Position [ 15 ] The Director first made contact with P.M. in April 2011. Initially, the Director considered placing I.W.M. with P.M. but the Director rather quickly determined that a placement with P.M. would not be appropriate.

Over time, the Director’s position regarding P.M. has intensified. [ 16 ] The Director submits that a placement with P.M. would not be appropriate because: 1. P.M. has made insufficient efforts to exercise access to and form a bond with I.W.M.; 2. P.M. has a long history of serious domestic violence often perpetrated in the presence of children; 3. P.M. has a history of physically abusing children as evidenced by his recent conviction for assaulting the eight year old son of a former partner; 4.

P.M. has a history of having conflict with other adults, including at times when either he, the other adult or both were under the influence of alcohol; 5. P.M. has been convicted of various offences, including smuggling contraband cigarettes, impaired driving, breaching no contact provisions of court orders and assault; and 6. I.W.M. is a sensitive child with behavioural issues whose safety, well-being and best interests would not be served if she is returned to P.M. [ 17 ] The Director submits that an eventual placement of I.W.M. with her sister, C.M.(1), would be best for I.W.M.

C.M.(1) has no parenting experience but, since being contacted by a “family finder” in the summer of 2015, has travelled to Kamloops from Corner Brook, Newfoundland where she currently resides to establish a bond with I.W.M., a bond which has been maintained through regular Skype contact. C.M.(1) is proposed as a bright, hard-working and stable parent who can raise I.W.M. in an environment that is free of conflict.

P.M.’s Position [ 18 ] P.M. emphasizes the focussed nature of the CFCSA and maintains that the present case is not a contest to determine whether he or C.M.(1) would provide the most nurturing environment for I.W.M. P.M. submits the question is whether it is necessary for the state to intervene in I.W.M.’s upbringing in order to protect her health and safety. [ 19 ] P.M. submits that by severing the parent-child relationship, a CCO is “the most profound order a court can make”.

P.M. submits that a judge must exercise her or his power to take a parent’s child away “only with the highest degree of caution and only on the basis of compelling evidence”. [ 20 ] In this case, P.M. maintains that the Director has not considered him to be a viable option virtually from the outset as a result of how he treated the responsible social worker rather than on the basis of how he treats children in his care.

P.M. submits that, despite a lack of support from the responsible social worker, he has maintained a bond with I.W.M. through several visits to Kamloops and regular telephone calls. [ 21 ] P.M. notes that I.W.M. was taken into care because of concerns with C.A.A.’s parenting, not his. P.M. also notes that he currently has primary parental responsibility for two of his children, G.A. who is nine and M.M. who just turned five, and shared responsibility for two of his other children, S.I. who is almost two and A.M. who is six months old.

P.M. submits that it is impossible to reconcile how he can be considered a viable and safe placement for these children by the Ottawa Children’s Aid Society (”CAS”) but a risk to I.W.M.’s safety and well-being by the Director. [ 22 ] P.M. acknowledges that he has had troubles with the law and conflict in his interpersonal relationships. He also acknowledges that he is not a perfect parent. Nevertheless, P.M. submits that he is, as required by the CFCSA , an adequate parent.

He notes that, especially since the incident with his former partner’s eight year old son, he has accessed many supports and completed many programs to improve himself as a person and as a parent. He submits that with appropriate supports he can safely parent I.W.M. and meet all of her needs. [ 23 ] Finally, P.M. submits that if I grant the Director’s application, C.M.(1), who has long been estranged from her father, will cut P.M. and I.W.M.’s siblings on his side out of I.W.M.’s life. P.M. submits that this would not be in I.W.M.’s best interests.

C.A.A.’s Position [ 24 ] C.A.A.’s position has flip-flopped throughout the proceedings. [ 25 ] During the original hearing in 2014, C.A.A. supported the Director’s application for a last chance order and opposed P.M.’s guardianship application. C.A.A. testified during that hearing that P.M. was “mouthy” and “really aggressive” when he was drinking,

had been emotionally and physically abusive to her and had hurt G.A., for example by grabbing him by the ears. C.A.A. testified that she feared P.M. She characterized P.M. as manipulative, did not believe he was improving and did not want I.W.M. to be placed with him. [ 26 ] As highlighted earlier, after the last chance order failed but before the hearing of the Director’s present application for a CCO, C.A.A. consented to an FLA order granting P.M. guardianship and placing I.W.M. in his primary care. The FLA order also provides that C.A.A. may have parenting time with I.W.M.

C.A.A. consented to the FLA order prior to the family finder locating C.M. (1). [ 27 ] C.A.A. did not testify in the present hearing but, at a pre-hearing stage, I ordered that the evidence from the hearing in 2014 would be evidence in the Director’s present CCO application. Relying on her previous testimony plus the balance of the evidence, including C.M.(1)’s testimony that she will maintain I.W.M.’s Inuit heritage and contact with C.A.A., C.A.A. now supports the Director’s plan of care and consents to the Director’s CCO application. [ 28 ] Regarding P.M., C.A.A. raises the same concerns as the Director.

C.A.A. also submits that P.M. minimizes his own responsibility for his actions, lacks insight into how his behaviours affect the children in his care and blames others. C.A.A. is not opposed to P.M. maintaining contact with I.W.M. but she is strongly opposed to I.W.M. being returned to him. The Legislative Framework [ 29 ]

Section 49 of the CFCSA describes the circumstances in which the court may and the circumstances in which the court must make a CCO.

Section 49 provides, in part, as follows: 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order. …

(4) The court must order that the child be placed in the continuing custody of the director if (

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, or (

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

(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.

(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.

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

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months. …

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. [ 30 ] Given my previous “last chance” order under s. 49(7) (

c) and the consent FLA order granting guardianship and primary care of I.W.M. to P.M., the parties agree, and a plain reading of the CFCSA dictates, that I now have only two options. Under s. 49(10), I must either place I.W.M. in the continuing custody of the Director or return I.W.M. to P.M. The parties also agree, and a plain reading of the CFCSA dictates, that I must make my decision based on an assessment of the factors set out in s. 49(6). As set out above, those factors are: (

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. [ 31 ] Regarding factor (c), s. 4(1) of the CFCSA provides as follows: 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

b) the child's physical and emotional needs and level of development; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child's cultural, racial, linguistic and religious heritage; (

f) the child's views; (

g) the effect on the child if there is delay in making a decision. [ 32 ] In making any decision under the CFCSA , the “Guiding Principles” of the Act must also be considered.

Section 2 provides as follows: 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (

d) the child's views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child's attachment to the extended family should be preserved if possible; (

f) the cultural identity of aboriginal children should be preserved; (

g) decisions relating to children should be made and implemented in a timely manner. Consideration of Section 49(6) Factors Factor (a): the past conduct of the parent towards any child who is or was in the parent's care [ 33 ] Without referring to any authority on point, P.M. submits that this factor relates only to the parent from whom the child was removed. If so, in considering this factor, I would be limited to considering the past conduct of C.A.A. towards any child who is or was in her care but not the past conduct of P.M. towards any child who is or was in his care. [ 34 ] With the greatest respect, the

interpretation advanced by P.M. does not make sense in the circumstances of this case. C.A.A. supports the Director’s plan of care and consents to the CCO. Her past conduct towards children in her care is not relevant at this stage of the proceedings. Though I.W.M. was not removed from P.M.’s care and had nothing to do with any misconduct on P.M.’s part, P.M. is now the parent apparently entitled to custody and seeks I.W.M.’s return.

His past conduct towards children in his care is highly relevant to the question of whether I should make the CCO requested by the Director or return I.W.M. to him. [ 35 ] In my respectful view, this factor requires me to consider the past conduct of the parent who is seeking to have a child returned to her or his care. If I am wrong, then I would still have to consider P.M.’s past conduct towards children in his care as part of my consideration of what is in I.W.M.’s best interests under Factor (c).

Either way, I will now move on to consider P.M.’s past conduct towards children who are or have been in his care. [ 36 ] P.M. has ten children from six different women. I list the children’s names, their dates of birth and the names of their mothers below. Child’s Name Date of Birth Mother’s Name C.M.(1) [omitted for posting] C.M.

(2) J.M. [omitted for posting] K.N. G.A. [omitted for posting] T.I. I.W.M. [omitted for posting] C.A.A.

M.M. [omitted for posting] T.I. T.P. [omitted for posting] A.C. C.I. [omitted for posting] T.I. T.T. [omitted for posting] D.T. S.I. [omitted for posting] T.I. A.M. [omitted for posting] T.I. [ 37 ] P.M. had a significant role in raising C.M.(1) and J.M., is the primary parent of G.A. and M.M., has a significant role in raising S.I. and A.M. and has had a minimal role in raising I.W.M., T.P., C.I. and T.T. [ 38 ] C.M.(1) travelled from Corner Brook Newfoundland to testify at the hearing. C.M.(1) is in her final year of studies in Sustainable Resource Management.

She will graduate with a Bachelor’s degree in Resource Management in April 2016. [ 39 ] C.M.(1)’s mother is C.M.(2). C.M.(2) and P.M. separated before C.M.(1)’s first birthday. P.M. was actively involved in raising C.M.(1) until she was about four years old when C.M.(2) moved to Vancouver. After that, P.M. saw C.M.(1) several times a year until the two became estranged during C.M.(1)’s teen years. P.M. and C.M.(1) remain estranged. [ 40 ] Both P.M. and C.M.(1) say their relationship was good during the years that P.M. was with K.N. and that their relationship became strained when P.M. and K.N. separated.

P.M. says that his financial struggles were also a factor. He says that C.M.(1) was upset when he could no longer fly her to visit him in Ottawa nor spoil her in other ways. C.M.(1), whose testimony I accept, remembers it differently. [ 41 ] C.M.(1) had a very good relationship with K.N. who was her step-mother from the age of two to the age of 10 or 11. C.M.(1) recalls K.N. as a patient and kind caregiver. After P.M. and K.N. separated, P.M. resented that C.M.(1) wanted to continue spending time with K.N.

P.M. acknowledged that he fought with C.M.(1) in her early teens about the amount of time she wanted to spend with K.N. and other family during what he felt was supposed to be his time. P.M. recalls saying to C.M.(1), “Fine (that she could spend time with K.N.) but don’t expect me to pay for your flights to spend time with everybody else”. [ 42 ] Also disturbing to C.M.(1), was how P.M. treated his next partner, L.C., and her two children. C.M.(1) recalls P.M. displaying aggression towards L.C., including one occasion when he physically dragged her into a bedroom and yelled at her.

She also felt uncomfortable at the way P.M. raised his voice at L.C.’s children. C.M.(1) felt L.C.’s children cowered to and were in fear of P.M. [ 43 ] When C.M.(1) began challenging P.M.’s behaviours, they fought and P.M. called her a “snot-nosed little brat”. Their relationship effectively ended when C.M.(1) was 13 or 14 years old. [ 44 ] Though P.M. and C.M.(1) remain estranged, they see each other occasionally at family gatherings. At P.M.’s mother’s recent funeral, P.M. threatened to “beat the living shit” out of his brother-in-law who had allegedly stolen money from his mother.

P.M.’s outburst occurred in front of G.A. and M.M. and rekindled C.M.(1)’s fear of P.M.’s anger and aggression. [ 45 ] J.M. did not testify at trial but swore an Affidavit in support of his father. Though not subjected to cross-examination, I accept J.M.’s evidence that P.M. has “flaws” but has been a good father to him, has never hit or abused him in any way and encouraged him to complete high school and an engineering technology program.

I also accept J.M.’s evidence that his younger brothers, G.A. and M.M., are doing well under P.M.’s care. [ 46 ] During the original hearing, a social worker with the Ottawa CAS named Annie Bellemare testified about the CAS’s involvement with P.M. over the years. At both hearings, the Director introduced fairly extensive records from the CAS and P.M. testified about some of the events recorded in the CAS records and reviewed by Ms. Bellemare.

C.A.A. also testified about one of the incidents. [ 47 ] Based on all of this evidence, it is clear that P.M. has had many interactions with the CAS starting in 2005 when P.M. was charged with impaired driving with J.M., who was then 12 years old, in the car. P.M. was convicted of this offence in 2006. Since then, G.A. has been taken into care by the CAS for brief periods on two occasions and M.M. for a brief period on one occasion. Several of the CAS files were opened as a result of allegations of domestic violence between P.M. and either C.A.A., T.I. or D.T.

There was also one allegation of violence towards G.A., one allegation of P.M. being verbally threatening towards a community counsellor and one allegation of P.M. assaulting the then eight year old son of D.T. Some of the incidents of violence were alleged to have occurred in the presence of one or more children. Finally, one file related to P.M. having been arrested for smuggling contraband cigarettes with G.A. present. [ 48 ] P.M. had explanations, sometimes elaborate explanations, regarding the events that led to his various interactions with the CAS.

Even on his version of events, it is clear that he has exposed children in his care to inappropriate behaviours and a fairly high degree of conflict. Regarding the incident involving D.T.’s then eight year old son, a trial judge in Ontario must have rejected at least parts of P.M.’s version of events because P.M. was convicted of assault. I note that the assault occurred in March 2014, very shortly after I made the last chance order. [ 49 ] In British Columbia, I.W.M. is not the only child of P.M.’s who has been in care. In May 2014, P.M. brought G.A. and M.M. to Kamloops to visit I.W.M.

During a visit at the offices of the Director’s agent, Secwepemc Child and Family Services (“SCES”), staff felt that P.M. was acting aggressively towards G.A. by squeezing his hand inappropriately and that M.M. was displaying signs of anxiety. Given their belief that P.M. has an extensive history of violence against women and their knowledge of the assault charges which were then pending against P.M., the SCES determined that they wished to interview G.A. As a result of his distrust of the SCES,

P.M. was reluctant. Eventually, an SCES social worker named Jason Guimond interviewed G.A. at the local Friendship Centre in the presence of a worker at that office named Barry James. At a certain point, Mr. James determined that Mr. Guimond had all the information he needed and ended the interview. Mr. Guimond did not share Mr. James’ view. Ultimately, there was a heated confrontation between P.M. and Mr. Guimond. [ 50 ] The SCES then determined that it was necessary to apprehend G.A. and M.M. in order to conclude their interview with G.A.

With the assistance of four members of the RCMP, the children were removed from P.M. while he was with his sons at Riverside Park. G.A. and M.M. were returned to P.M. following a presentation hearing five days later on certain conditions. [ 51 ] I agree with P.M. that the SCES was overzealous in dealing with him in May 2014. Having said that, P.M. could have been far more cooperative.

As a result of the overzealousness of the SCES and P.M.’s confrontational style, G.A. and M.M. were both exposed to the trauma of being removed from P.M.’s care by the RCMP. [ 52 ] Finally, I am unable to accept C.A.A.’s testimony that she witnessed P.M. pull G.A.’s ears. C.A.A.’s changing position throughout the proceedings leaves me in the unenviable position of being unable to accept this uncorroborated allegation. Factor (b): the plan of care [ 53 ] The Director’s plan of care is to place I.W.M. with C.M.(1) as soon as C.M.(1) finishes her course of studies.

This will involve uprooting I.W.M. from a very favourable foster placement and relocating her to Newfoundland where I.W.M. will be quite far removed from her family on both sides. [ 54 ] Though C.M.(1) has no parental experience, she greatly impressed me as a mature, bright, hard-working, active, calm and caring person during her testimony. C.M.(1) demonstrated an understanding of I.W.M.’s needs, a willingness to put I.W.M.’s needs first and an ability to meet I.W.M.’s needs. I will have more to say about C.M.(1) as I analyse I.W.M.’s best interests.

At this point suffice to say that the Director’s plan of care has substantial merit. [ 55 ] Regarding P.M., his plan of care also involves uprooting I.W.M. to raise her in Ottawa amongst her many siblings who live there. P.M. will bring I.W.M. into a home with G.A. and M.M. and often with S.I. and A.M. P.M. is clearly a very experienced parent who is considered adequate by the CAS. P.M.’s plan of care also has some merit and I will have more to say about his plan of care as I analyse I.W.M.’s best interests.

Factor (c): the child's best interests [ 56 ] I will next analyse each of the factors in s. 4(1) of the CFCSA . The Child’s Safety [ 57 ] I have absolutely no concerns that I.W.M. would be perfectly safe while in the care of C.M.(1). C.M.(1) impressed me as a person who seeks to avoid conflict. She is described by her brother J.M. as “kind, smart, generous (and) outgoing” and as a person who has shown J.M. “nothing but love”.

J.M. specifically says that he has “no concerns for I.W.M.’s safety or well-being in C.M.(1)’s care”. [ 58 ] While P.M. has taken counselling and programming to deal with anger management and treating others with respect, I am concerned at the level of conflict that surrounds P.M. He has now been convicted of assaulting an eight year old boy and, even if I accept P.M.’s explanations of every incident of conflict raised in these proceedings involving adults, the reality is that he maintains relationships with others who have created conflict and acted out with violence in front of children in P.M.’s care.

Given that P.M.’s greatest conflicts have been with women who are the mothers of his children, these relationships will continue into the foreseeable future and raise the spectre of I.W.M. being exposed to violence and her safety being jeopardized. The Child's Physical and Emotional Needs and Level of Development [ 59 ] In my reasons for judgment delivered on February 6, 2014, I had this to say regarding I.W.M.’s needs and level of development: I.W.M. is a sensitive child with some behavioural issues.

She has no identified special needs or medical issues, though she should be assessed for fetal alcohol spectrum disorder, as C.A.A. may have been drinking during her first trimester with I.W.M. Either way, I.W.M. is prone to meltdowns which are outside the normal range for children of her age, particularly in transitioning from one activity to another.

While all children need and deserve a stable, calm and nurturing environment, this is even more the case for I.W.M. than for most children. [ 60 ] During the most recent hearing, the best evidence I heard regarding I.W.M.’s physical and emotional needs and level of development came from her long-time foster parent, R.A. [ 61 ] R.A. is a former paediatric nurse and an experienced and skilled foster parent who has cared for I.W.M. for more than five years. R.A. has provided a calm and supportive environment for I.W.M. which has allowed I.W.M. to flourish.

Based on R.A.’s testimony and I.W.M.’s report cards, I have concluded that I.W.M.: 1. is generally well behaved and coming out of her shell; 2. is “meeting expectations” in all academic areas; 3. loves the outdoors, animals, swimming and art; 4. remains cautious about trying new things;

5. does not warm up easily to men but attaches easily to women; 6. reacts negatively or is triggered by certain places; 7. has fewer tantrums and meltdowns; 8. shuts down, meaning she stands “stalk still” with a blank look on her face, for up to 30 minutes if something does not go her way; 9. does not like to be the centre of attention and is quick to tears if she gets in trouble; and 10. pulled out all of her eyelashes last summer, likely as a result of some anxiety she was feeling. [ 62 ] My comment in February 2014 that I.W.M. needs a “stable, calm and nurturing environment” even more than other children remains apropos. [ 63 ] In considering I.W.M.’s physical and emotional needs and level of development, the key is not to be able to describe her needs and level of development but to assess the ability of C.M.(1) and P.M. to meet her needs in relation to her level of development. [ 64 ] Though C.M.(1) lacks parenting experience, she demonstrated insight into I.W.M.’s needs and level of development during her testimony.

Based on C.M.(1)’s testimony as well as the views expressed by J.M. and the observations of R.A of C.M.(1)’ s interactions with I.W.M., I am satisfied that C.M.(1) is willing and able to meet I.W.M.’s needs. [ 65 ] I was particularly impressed with R.A.’s observations that C.M.(1) speaks to I.W.M. at I.W.M.’s level and about topics that interest I.W.M. For example, when speaking by Skype, C.M.(1) brings her dog into the screen and asks I.W.M. about her day. C.M.(1) has also had very positive personal interactions with I.W.M. when visiting I.W.M. in Kamloops.

The two spent a week together and were very busy with appropriate activities such as playing games and spending time at the local Wildlife Park. To her credit, C.M.(1) also involved I.W.M.’s foster brother in activities. [ 66 ] Indicative of her willingness to put I.W.M.’s interests ahead of her own, pending the outcome of these proceedings, C.M.(1) was planning to move to Kamloops from Corner Brook in early 2016 to allow I.W.M. to finish her school year and provide for the best possible transition into C.M.(1)’s care.

As it turns out, C.M.(1) is presently finishing a final course in Corner Brook to complete her degree and, if I make the CCO sought by the Director, now plans to take I.W.M. back to Corner Brook at the end of I.W.M.’s school year where C.M.(1) has a better chance of working in her field of study. (There is no work in Kamloops in C.M.(1)’s preferred field.) [ 67 ] Similar to the observations of J.M., R.A. describes C.M.(1) as “adorable, quiet, personable, kind and caring”.

R.A. says, and from all of the evidence I accept, that C.M.(1) cares deeply for I.W.M. and has I.W.M.’s best interests at heart. [ 68 ] P.M. is a very experienced parent who has supporters. P.M.’s son J.M. has very positive things to say about his father. A close friend of P.M.’s named M.H. swore in an Affidavit that P.M. is a devoted father who relies on appropriate supports for his children and himself. M.H. has observed P.M. to take very good care of G.A. and M.M.

A retired neighbour of P.M.’s in Ottawa named M.S. has spent time with P.M. at her home when P.M. has brought G.A. and M.M. there to spend time with her cats and explore her garden. She has observed G.A. and M.M. to have love and affection for each other and to be respectful, well-adjusted and happy boys which she clearly credits to P.M. A Kamloops parent named H.L. also testified in support of P.M. [ 69 ] After a chance meeting at a local park when P.M. was in Kamloops to attend court, H.L. and her family essentially took P.M., G.A. and M.M. in.

H.L. has extensive experience working with children as a respiratory therapist, special student assistant, long-time gymnastics coach and former foster parent. She tends to evaluate parents based on their children. In the case of P.M., she has respect for him because she has observed him to be a patient and caring father who, in G.A. and M.M., has raised two very nice boys. H.L. has left her own children in P.M.’s care and describes that her children adore him. [ 70 ] There is no doubt that P.M. has a number of important strengths as a parent, loves his children very much and wants the very best for them.

There is also no doubt that P.M. has weaknesses or, as J.M. has said, “flaws”. P.M. has been convicted of a number of serious offences, including assaulting a child, has difficulties controlling his emotions, particularly when he is under stress and has maintained a number of chaotic relationships with the mothers of a number of his children. While I do not need to assign blame, the fact is that P.M.’s children have been exposed to incidents of domestic violence within his chaotic relationships. The fact is also that these relationships revolve around children and so will be ongoing.

P.M. has repeatedly shown that he can be very hard to get along with, especially when things do not go his way. Beyond the conflict with the mothers of his children, P.M. has been in conflict with various service providers, including a number of the Director’s social workers. [ 71 ] In terms of being able to meet I.W.M.’s needs, R.A. has made some observations of P.M. When P.M. speaks to I.W.M., he does most of the talking with I.W.M. answering questions “yes” or “no”. I.W.M. listens but does not show much interest in the topics P.M. chooses to speak about.

While I.W.M. is “fine” with speaking to P.M., she is “not excited” to speak with him. I.W.M. says that P.M. “talks too much”. [ 72 ] R.A. also has some experience with P.M.’s abrasiveness. After not being available to take some of P.M.’s calls to I.W.M., R.A. received a series of “escalating” voicemails in which P.M. expressed his frustration. [ 73 ] Regarding the episode last summer when I.W.M. pulled her eyelashes out, R.A. correlated that behaviour to a telephone conversation between P.M. and I.W.M. during which P.M. may have inappropriately spoken to I.W.M. about the possibility of I.W.M. living with C.M.(1).

Given that I.W.M. pulled her eyelashes out a week and a half after the conversation at issue, that I.W.M. herself identified other relatively minor frustrations as the reason for her conduct and that a physiological cause was not investigated, I cannot conclude that I.W.M. pulled her eyelashes out because of something P.M. said to her. Given everything else I have heard about I.W.M., I agree with R.A.’s more general view that the eyelash incident was anxiety related.

[ 74 ] Even M.H.’s Affidavit discloses that P.M. is not always easy to get along with. M.H. swears that P.M. “will not become meek in front of adversity, he will be himself and defend himself”. M.H. also swore that P.M. takes a “more adversarial” approach to achieving his end goals and has “ruffled feathers along the way”. [ 75 ] P.M. has his hands more than full with two children in his primary care and two others often in his care, managing relationships with the mothers of a number of his children and accessing services to support himself and his children.

While chaos and conflict may not be part of P.M.’s life on a daily basis, I have no reason to think they would not arise regularly if I returned I.W.M. to him. In fact, with one more child to care for, P.M. would be under even more stress and it is hard to imagine how he could meet I.W.M.’s unique needs in his present circumstances. The Importance of Continuity in the Child's Care [ 76 ] Whether I make the CCO sought by the Director or return I.W.M. to P.M., there will be a significant disruption to I.W.M.

Either way, I.W.M. will be uprooted from the only home she has ever really known and relocated either half way or all the way across the country. The transition will not be easy for I.W.M. [ 77 ] That said, in my view a transition to C.M.(1)’s care will be easier than to P.M.’s care and the prospects for future stability and continuity are better with C.M.(1) than with P.M. I say this for a number of reasons. [ 78 ] First of all, if I make a CCO, the Director can work with C.M.(1) to facilitate an orderly transition and move to Corner Brook.

If I return I.W.M. to P.M., arrangements would have to be made, essentially immediately, for I.W.M. to move to Ottawa. Secondly, I.W.M. would be C.M.(1)’s exclusive focus whereas I.W.M. would find herself in an extremely busy household with many competing demands if returned to P.M. Finally, in terms of the future, rightly or wrongly, G.A. and M.M. have been removed from P.M.’s care in Ottawa and in Kamloops. While P.M. is currently considered by the Ottawa CAS to be adequately parenting his children, the risk of future disruptive interventions remains.

I see no similar risk to continuity in I.W.M.’s future care if she is raised by C.M.(1). The Quality of the Relationship the Child has with a Parent or Other Person and the Effect of Maintaining that Relationship [ 79 ] Since being identified by the family finder, C.M.(1) has, in a relatively short period of time, forged a very close relationship with I.W.M.

I.W.M.’s weeklong stay with C.M.(1) in Kamloops went very well, I.W.M. is excited and happy to speak with C.M.(1) on the phone or by Skype and I.W.M. is very comfortable with C.M.(1). [ 80 ] Though P.M. was present for I.W.M.’s birth and I.W.M. was baptised in Ottawa with P.M. and his family present, it has been difficult for P.M. to develop the type of relationship with I.W.M. that he clearly and dearly desires. [ 81 ] As it would be in dealing with almost any young child, it has been hard for P.M. to have meaningful conversations with I.W.M. by phone.

It may have worked better for P.M. to use Skype but he was not made aware of that possibility in a timely way. Despite his modest means, P.M. has travelled to Kamloops a number of times to attend court and spend time with I.W.M. Because of the Director’s views about P.M. and the unfortunate events that led to G.A. and M.M. being taken into care in Kamloops, P.M. has not had the opportunity he should have had to build his relationship with I.W.M.

While I cannot say that I.W.M. feels as close to her father as she does to her oldest sister, I can say that, despite all the impediments, she has a meaningful relationship with P.M. [ 82 ] Whether I make the CCO or return I.W.M. to P.M., in my view, it will be important for I.W.M. to maintain a relationship with both P.M. and C.M.(1).

Because of the estrangement between the two, I have some concerns whether both relationships will be maintained to an appropriate level whether I.W.M. is in the care of P.M. or C.M.(1). [ 83 ] I.W.M. does not have much of a relationship with C.A.A. or her many other siblings on both sides of her family. I am confident that, if I make the CCO requested by the Director, C.M.(1) will live up to her word to maintain contact between I.W.M. and C.A.A. and between I.W.M. and her siblings. If I return I.W.M. to P.M., I.W.M. will clearly have very close contact with at least J.M., G.A., M.M., S.I. and A.M.

Given that the relationship between P.M. and C.A.A. has, at times, been tumultuous, I am not as confident that P.M. will afford C.A.A. the same quality of contact with I.W.M. as C.M.(1). It is hard to say how well P.M. would be able to maintain contact between I.W.M. and her many other siblings. The Child's Cultural, Racial, Linguistic and Religious Heritage [ 84 ] I.W.M. has Inuit, Mohawk and European ancestry, all of which will be important to maintain. [ 85 ] Eight of P.M.’s ten children have Inuit mothers and, therefore, the same heritage as I.W.M. P.M. is close to his own Mohawk heritage.

He testified while holding a fan of eagle feathers. The Affidavits of both J.M. and M.H. support the conclusion that P.M. embraces his Mohawk culture, takes his children to their reserve and is involved with the elders of his community. The evidence from many sources is also clear that P.M. exposes his children to their Inuit heritage by, for example, spending time at the Ottawa Inuit Community Centre. [ 86 ] C.M.(1) is committed to maintaining a connection between I.W.M. and her Inuit culture which will be achieved, at least in part, by C.M.(1) maintaining contact between I.W.M. and her mother.

C.M.(1) does not, however, self-identify as having indigenous heritage. She has come to believe that P.M. was adopted and, therefore, does not share his mother’s Mohawk ancestry. C.M.(1)’s belief is not supported by the balance of the evidence and it concerns me that if I make the CCO requested by the Director, C.M.(1) will not keep I.W.M. connected to her Mohawk culture. The Child's Views [ 87 ] I.W.M. is too young to express her views about what is best for her. The Effect on the Child if There is Delay in Making a Decision

[88] I.W.M. has now been in care for more than five years.

There are many reasons why these proceedings have been so protracted,including efforts to provide services to C.A.A. to put her in a position to care for I.W.M., efforts to resolve issues through a Family CaseConference and an Aboriginal Family Group Conference, the added complexity of dealing with P.M.’s FLA application, a completeturnover in counsel between the two hearings that have come before me, coordinating busy schedules, underestimating the amount oftime required to hear all the evidence and the time it has taken me to thoroughly consider the evidence and render my decisions.

Regardless of the explanation, by any measure, the decision in I.W.M.’s case has not been made in accord with the guiding principle setout in s. 2(

g) of the CFCSA that “decisions relating to children should be made and implemented in a timely manner”. [89] At this point, I cannot recapture the time that has passed since I.W.M. was last taken into care and I must now make a finaldecision. Further delay is, accordingly, not an issue. Conclusion on I.W.M.’s Best Interests [90] Though I have some concerns about C.M.(1) maintaining contact between I.W.M. and her father and about C.M.(1) developinga connection between I.W.M. and her Mohawk ancestry, I have concluded that I.W.M.’s best interests will be served by making the CCOrequested by the Director.

C.M.(1) is in the best position to provide the stable, calm and nurturing environment that I.W.M. needs tocontinue to flourish. P.M., despite his experience and strengths as a parent, does not have the capacity to take on the responsibility ofparenting another child. He would not, in my view, be able to meet I.W.M.’s unique needs. CONCLUSION [91] P.M. relies on cases such as Hepton et al. v. Maat et al., (SCC), [1957] SCR 606, Re C (1984), (BC CA), 59 BCLR 317 (CA) and K.(C.) v.

British Columbia (Superintendent of Child, Family and Community Services) (1997), (BC SC), 35 BCLR (3d) 115 (SC) for the proposition that the fundamental right of a natural parent to raise her or hischild should not be severed except when necessary to protect a child’s health and safety. P.M. submits that the biological bond betweenparent and child should never be severed lightly and only on the basis of compelling evidence.

P.M. submits that the present case is notakin to an FLA proceeding to determine the best home for I.W.M. but rather to determine whether P.M.’s plan of care for I.W.M. willadequately protect I.W.M.’s health and safety. P.M. relies heavily on the results of his parenting of G.A. and M.M. and on hiswillingness to continue to access counselling and services to meet his children’s needs. [92] I agree with all of P.M.’s legal arguments. They are well reflected in the Guiding Principles set out in s. 2 of the CFCSA.

However, giving paramount consideration to I.W.M.’s safety and well-being and after considering the factors set out in s. 49(6) of theCFCSA, I am granting the Director’s application for a CCO. I am doing so for the following reasons: 1. The Director’s plan of care is in I.W.M.’s best interests because C.M.(1) is in a position to meet I.W.M.’s unique needs while P.M. isnot; 2. I.W.M. will be perfectly safe in C.M.(1)’s care but faces the realistic risk of being exposed to chaos, conflict and violence betweenadults if in P.M.’s care; 3.

Though C.M.(1) is not I.W.M.’s parent, she is family and will maintain I.W.M.’s connection to most, and hopefully all, of herextended family; 4. P.M.’s willingness to access support services is insufficient for him to meet I.W.M.’s unique needs. Despite extensive past support,P.M. continues to expose his children to conflict and has recently been convicted of assaulting a child; and 5. C.M.(1) is committed to maintaining I.W.M.’s connection to her Inuit heritage.

C.M.(1)’s reluctance to acknowledge her ownindigenous heritage is reflective of her estrangement from P.M. and, while concerning, is insufficient to override the other factors thatpoint clearly to C.M.(1) being positioned to be the best parent for I.W.M. [93] I thank all of the parties and their counsel and wish I.W.M. the very best for the future. ________________________________ L.S. Marchand Provincial Court Judge