Director v. B.S. and K.M. Date:, 2015 BCPC 337

Citation: Director v. B.S. and K.M. Date: 20151126 2015 BCPC 0337 File No: 13597 & 15095 Registry: Salmon Arm IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: K.A.M. , born [d.o.b.] T.M. , born [d.o.b.] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: B.S. PARENT AND: K.M. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Director: David M. Ross

Counsel for the mother B.S. : Courtenay Simmons Counsel for the father K.M. : Juan O'Quinn Place of Hearing: Vernon & Salmon Arm , B.C. Date of Hearing: 2015: September 15-18; October 28-29; Nov 19 Date of Judgment: November 26, 2015 I. INTRODUCTION [ 1 ] B.S. (the “mother”) and K.M. (the “father”) have two children, K.A.M. (the “daughter”) born [d.o.b.] and T.M. (the “son”) born [d.o.b.]. Both children were removed from birth, the older in 2011 and the younger in 2013.

Both parents also had a child in prior relationships and there was also significant child protection Ministry involvement with those children. [ 2 ] The Director seeks an s.49 continuing care order for K.A.M. and s.41 continuing care order for T.M. The parents have in recent months separated on friendly terms. The father acknowledges the children can’t be returned to him, although he supports the children being returned to their mother. The father last saw the children December 3, 2014.

The mother seeks the return of the children to her, or alternatively, that they continue in temporary care and not be made continuing care wards. [ 3 ] The court heard seven days of evidence and these are the written reasons for the court now making both children permanent wards of the Director. II. THE FACTS [ 4 ] B.S., now age 28, was born [d.o.b.] in Calgary. She grew up in St John, New Brunswick with her father. At age four she was sexually abused by her father’s friend, resulting in the assailant being criminally convicted and receiving a federal jail sentence.

B.S. claims her father also started sexually abusing her when she was nine to eleven years old. [ 5 ] After age eleven, B.S. no longer lived with her father. New Brunswick social workers placed her into a group home for over a year. In December of 1999 she visited her mother, who lived in Sorrento, B.C. (near Salmon Arm). She hadn’t seen her mother for nearly nine years prior to that visit. Plans were made for B.S. to move to B.C. to live with her mother. That move happened in March of 2000 when B.S. was age thirteen. [ 6 ] B.S. lived with her mother in Sorrento for a few years before that placement broke down.

The mother was unable to control the behaviour of B.S. and the parent teen conflict escalated to the point that in June 2003 age sixteen B.S. was voluntarily placed into the care of the child protection ministry. B.S. claims her Enderby foster parents were phenomenal and she also thought the Ministry was giving her lots of support. [ 7 ] While in foster care, age seventeen B.S. met Raymond and started a romantic relationship with him.

The foster parents didn’t approve of this relationship, largely because Raymond came from a very dysfunctional family background and the foster parents worried that dysfunction would carry into the relationship between the young couple. The foster parent and child relationship further broke down when the foster parent discovered B.S. was writing suicidal idealization in her diary. B.S. was upset when she learned foster mother had read the diary. B.S. chose to move out and live with Raymond. [ 8 ] By the spring of 2004 B.S. was pregnant with her first daughter (named S.E.). Raymond was the father.

Multiple people tried providing supports to the young couple, but they seemed unable to take sufficient advantage of those supports to allow them to live a healthy lifestyle. They went from crisis to crisis. Their daughter “S.E.” was born [d.o.b.] [ 9 ] The Ministry continued working closely with B.S. and in July 2005 she moved from Vernon to a safe house in Salmon Arm because of her fear of Raymond. In August and September 2005 a Salmon Arm family development worker started working closely with B.S. That worker had concerns that B.S. wasn’t able to apply the parenting skills being taught.

The child was nine months old and B.S. had difficulty understanding the proper development level of such a young child. For example, B.S. believed the child should already be toilet trained when nine months old. The worker worried that B.S. often took the child out in the middle of the night, often meeting up with Raymond on those occasions. The worker worried that B.S. allowed others to come into her home and eat all of her food, including the baby’s milk. On 20 October 2005 the landlord said the home was turning into a flop house with undesirable people staying there.

It was a supportive housing complex which had a high level of security requirements for the tenants. [ 10 ] S.E. was removed by social workers 29 March 2007. The Director believed B.S. frequently went to bars, leaving the infant with inappropriate care givers. The Director had concerns about the mother’s parental capacity. The capacity issues became secondary to the practical reality that the mother wasn’t properly looking after her daughter. B.S. had difficulty making healthy decisions in her own life. S.E. was made a continuing care ward 19 June 2008 when B.S. was age twenty-one.

S.E. is now adopted out and B.S. hasn’t seen her daughter S.E. for many years. [ 11 ] The mother’s second daughter K.A.M. was born [d.o.b.] and that child was removed at birth by the Ministry. On 29 June 2011 the first temporary order was made placing K.A.M. in the custody of the Director. That order was extended from time to time. On 6 July 2012 the Director applied for a continuing care order. Remarkably, that hearing, albeit nominally commenced in a timely way, did not substantially have any evidence called until 15 September 2015.

In short, a child removed from birth on [omitted for publication] is now fast approaching age five and still awaits this court’s ruling in spite of the application for a continuing care order being filed three and a half years ago. Regardless of who is to blame for this lengthy delay in hearing the matter, it makes a mockery of the s. 2(

g) guiding principle that decisions relating to children should be made and implemented in a timely manner.

[ 12 ] K.M. is the father of K.A.M. Back in 1998 K.M. was convicted of sexually abusing his then six year old daughter. He also assaulted that child’s mother. For these convictions, he received a two year jail sentence followed by a lengthy probation order. In 2002 he was still assessed by corrections staff as being at moderate to high risk to reoffend. K.M. testifies that his sexual offending treatment while he was on probation did help him such that he has never reoffended. K.M. eventually entered into another relationship and fathered his second daughter.

He has had no contact with that second child or that child’s mom since that child was age three. [ 13 ] K.M. and B.S. started their relationship after meeting in a bar in September of 2007. Within a year of meeting, they started living together in Enderby. She testifies, “He was a wonderful support to me. He was my emotional support.” She claims they had a wonderful relationship for four years, in spite of the fact that they were both using cocaine.

At some point he told her about his sexual assault conviction years earlier with his first daughter. [ 14 ] As previously stated, K.M.’s third daughter K.A.M. was born [d.o.b.] and she was removed by the Ministry from birth. K.M. continued struggling with his cocaine addiction, as evidenced by his 17 April 2012 drug screen hair sample which confirmed he tested in the very high range for cocaine and benzoylecgonine. B.S. was also using cocaine. Each parent was blaming the other for the removal of the child.

After the [d.o.b.] removal of K.A.M., the parents K.M. and B.S. continued living together off and on in a dysfunctional relationship. [ 15 ] On 20 February 2012 Ms Kelly of the Shuswap Family Resource Centre started helping the parents under their intensive family support program. It involved in home parenting education and hands on coaching for the parents. They met three times per week. B.S. was receptive with these services, but Ms Kelly believed the mother had difficulty following through with the parenting suggestions. K.M. was more resistant to thinking any parenting changes were needed.

The mother was seen as passive and the father as passive- aggressive. Ms Kelly didn’t see any significant progress in parenting skills or relationship communication between the parents. In June 2012 the parents last worked with the intensive family support program. This service ended when both parents again tested positive for cocaine with hair drug screening. [ 16 ] The parent’s relationship involved domestic violence that from time to time was brought to the attention of the police. On December 25, 2012, K.M. was arrested for domestic assault and released on a no-contact condition with B.S.

She told the police that he had shoved her twenty times against the refrigerator. The matter was eventually resolved by way of a February 23, 2013 six month peace bond which also had a no-contact term. It was during the window of time that K.M. was to have no contact with B.S. that the couple secretly continued their relationship and conceived their second child T.M. She claims she reconciled with K.M. partly because she was afraid of him hurting her and partly because she didn’t want to be alone.

On April 29, 2013 the police came to the residence and arrested K.M. for breaching the no-contact condition of his order. On June 7, 2013 police again attended the residence and found K.M. present with B.S. [ 17 ] On 16 October 2013 the peace bond order with the no-contact term lapsed and the parents again requested having their access visits together. With a 13 November 2013 visit to the home, the social worker confirmed the parents were again residing together. The father was taking a respectful relations course and he claimed not to be using illegal drugs.

The social worker requested hair samples from both for drug screening but the father said they would only provide urine tests and not hair tests. [ 18 ] T.M. was born [d.o.b.] and he was also removed from birth by the Ministry.

A 10 Dec 2013 Meconium test on the new-born child T.M. tested positive for cocaine. [ 19 ] The trial dates in this matter (that for various reasons have been adjourned from time to time) include: • 1 st trial date: May 2013 - unclear why it didn’t proceed • 2 nd trial date Oct 2013 - mother’s counsel (Begin) obtained adjournment (parent’s son R.M. born [d.o.b.]) • 3 rd trial date: April 2014 - mother’s counsel (Begin) got off record after obtaining adjournment of trial.

Parents sought other counsel • 4 th trial date: December 2014 - mother’s counsel (Pielecki) obtained adjournment which was unsuccessfully opposed by director • 5 th trial date: April 2015 - mother’s counsel (Pielecki) got off record after obtaining adjournment of trial • 6 th trial date: This current hearing commenced in September 2015 and the evidence concluded in November 2015. (C. Simmons counsel for mother and J. O’Quinn counsel for father). [ 20 ] On January 3, 2014 the mother told the social worker she was leaving K.M. and moving to Kelowna into supportive living housing called “Karis”.

She indicated she was afraid of K.M. She tried to leave him before, but this time she intended to follow through because he was actively using Methamphetamine and they were arguing and fighting too much. She told the supervisor on January 8, 2014 they had separated. [ 21 ] The mother never moved to the Kelowna “Karis” housing. She was unwilling to move there unless the children were also moved to Kelowna.

The Director wanted the mother to first follow through with moving in and taking care of herself before they would commit to moving the children to foster care in Kelowna. [ 22 ] Throughout January 2014 the mother claimed she still intended to separate from K.M., but by late February 2014, it was apparent they were again reconciled and living together. The father’s uncle passed away in February 2014 and in March 2014 the mother acknowledged to the supervisor that she had slipped and again used cocaine during the time of the wake for the deceased uncle.

B.S. told the social worker in early March 2014 that K.M. was again drinking. [ 23 ] In May 2014 the director received the hair drug screening results for the parents (covering a three month window starting in

December 2013). Those results tested positive for cocaine for both parents. Similarly, on July 31, 2014 another hair drug screening tested positive for both parents. [ 24 ] In September 2014 the parents advised the social worker that they had moved into a new residence. The mother privately told the social worker that she and K.M. were arguing a lot and he was controlling and she still wanted to separate from him. [ 25 ] On October 8, 2014 both parents attended a supervised access visit. The supervisor believed the father was impaired.

He was unsteady on his feet, swaying and his eyes were glossy and at times he seemed to be falling asleep. Subsequently, the father told the social worker his impairment was caused by the doctor over-prescribing too much medication. The doctor later confirmed this with the social worker. [ 26 ] On November 5, 2014 the mother told the social worker that she had again left K.M. and she had moved into the Woman’s Resource Centre. On November 14, 2014 the mother’s hair drug screen results came back negative (covering 8 July - 8 Oct 2014).

Later in November, the father’s hair drug screen results came back positive for cocaine. No hair samples have been taken from either parent since October 2014. Sometime before December 2014 the parents yet again reconciled. [ 27 ] On December 3, 2014 the parents had a supervised access visit. The father said he wanted to take a picture of the press-on tattoo on his then age three and a half daughter K.A.M. In the process, he held her arm and pushed her hand firmly over his genital area. The supervisor in close proximity, seeing this event, immediately ended the visit.

The father testifies that he was disturbed at seeing the child with a latex tattoo and he wanted to take a picture of the tattoo. He denies putting his daughter’s hand over his genital area. [ 28 ] Between September 2011 and March 2015 there were 44 visits supervised by the Salmon Arm Family Resource Centre. The main supervisor (T.L.) believed the mother often made poor judgment calls regarding how to best meet the needs of the children. T.L. believed the mother too often put her own needs ahead of those of the children.

T.L. believed the mother particularly had difficulty dealing with both children at the same time. [ 29 ] On January 21, 2015 the mother reported to the social worker that she was again no longer living with K.M. She added that K.M. was no longer working because of his physical and mental ailments. On February 16, 2015 the landlady told the social worker that the parents were still living together in the mother’s apartment off Fourth Street and they had been together for several weeks. This was inconsistent with what the mother had told the social worker a few weeks earlier.

The mother claims the father started living there the second week in February. [ 30 ] In early March 2015 the landlady gave B.S. a verbal warning that other tenants were complaining about the multiple undesirable people coming and going from B.S’s apartment. They were expressing a concern that K.M., a convicted child sex offender, was still living in the apartment. B.S. responded that she loved K.M and she wanted him to get help and that was why she was housing him until he could get into some other supportive housing residence. [ 31 ] On 9 March 2015 the landlord delivered a written warning.

On that date, B.S. wasn’t present, but K.M., a second male, and two young children were in the apartment. K.M. told the landlady that the kids were the children of friends of B.S. and he was caring for them. Two days later, on 11 March 2015, B.S. told the landlady that the two children in question were her children. This wasn’t true because her children were still in foster care and she only had supervised parenting time with them. K.M. claims the landlord lied and he never had care of children on the day in question.

Having heard all of the evidence, the court accepts the evidence of the landlord and outright rejects the evidence of K.M. in this regard. [ 32 ] On 15 March 2015 the police became involved at the residence when the neighbours reported domestic violence between the parents. The father was charged with assaulting the mother and he was again placed on a no-contact term. The following day, on 16 March 2015, B.S. phoned the police to report that K.M. had again attended her residence and had subsequently followed her downtown.

The criminal trial commenced 14 September 2015 and was adjourned for subsequent continuation. B.S. tells this family court that they assaulted each other, meaning she hit him and he hit her. She claims he wanted their relationship to continue and she wanted it to end. [ 33 ] B.S. in early April 2015 was with a Vernon man named Norm. They told the landlady that B.S. wanted to move to Vernon. B.S. denies that Norm was her new boyfriend, but she agrees that Norm may have told her landlord that he was B.S.’s new boyfriend. Norm gave the landlady his phone number for contacting B.S.

As required by the eviction notice, B.S. moved out by the April 8 th deadline. B.S. had difficulty settling in anywhere. She initially moved into a friend’s place in Salmon Arm for three months. [ 34 ] In June 2015 she was sexually assaulted in Salmon Arm. She knew the assailant from a prior recovery program they had both attended. Her mental health deteriorated, resulting in her spending two days in the hospital in Vernon. She then moved into the Vernon transition house.

In late August 2015, she rented a community supported home in Vernon. [ 35 ] It wasn’t until August 31, 2015 that the mother told the social worker she had moved to Vernon. When the social worker testified in mid-September, he still didn’t know any details about where the mother was living in Vernon. [ 36 ] An October 4, 2015 incident in Vernon shows the mother is continuing being on the fringe of crisis. She denies being in any romantic relationship with a man named R.F., yet she finds herself at his residence at 2:55 a.m. in the presence of police.

R.F.’s children are in the custody of the Director, living in Dawson Creek. R.F. went to Dawson Creek to visit his children. He had no permission to bring them back to Vernon. On October 4, 2015 he wrongly drove his kids from Dawson Creek to Vernon. Police were looking for him. The RCMP knew to call B.S. to learn the whereabouts of R.F. It is unclear what she told the RCMP in that regard. At some point in those early morning hours, R.F., while travelling to Vernon, also called B.S. and asked her to clean up his place before he and the kids arrived.

She claims she then went to his unlocked residence and started cleaning. R.F. and his kid arrived around 2 a.m. and the RCMP arrived around 2:55 a.m. to remove the children. B.S. acknowledges she told the social worker at that time that R.F. was her boyfriend. She now claims he wasn’t her romantic boyfriend, but rather, was just a male friend. Her claim in that regard isn’t believable. [ 37 ] On the following day of October 5, 2015 B.S. moved from Vernon to Kelowna to live in the “Karis” Support Society. This is a wonderful Society which helps women with drug recovery and life skills.

It doesn’t allow children over age three to live there. They do

frequent unscheduled drug screening with urine samples. B.S. claims sobriety the past fifteen months. Her multiple urine drug screens since residing at Karis have all come back negative for drugs or alcohol. [ 38 ] Tuesdays between September 2014 and October 20, 2015 B.S. attended “Managing Conflict in the Family” workshops in Vernon. She was reported as having excellent participation, attending five of six sessions once a week each Tuesday morning. She travelled by bus from Kelowna to Vernon to attend the last three sessions.

On some of those occasions she also visited with R.F. [ 39 ] Mondays she busses from Kelowna to Vernon to attend a program called “Parenting on my Own.” Fridays she also travels from Kelowna to Salmon Arm to see her children. Otherwise, she remains living in Kelowna at the Karis home. [ 40 ] B.S.’s cultural heritage is less than clear. She believes she is Metis. According to her Auntie, B.S.’s grandfather was Metis. It wasn’t until B.S. moved to B.C. that she became aware of being one quarter Metis.

She grew up having no involvement with Metis traditions. [ 41 ] The social worker testified to multiple protection concerns remaining with the mother despite her regularly visiting the children with her supervised visits. He has concerns that the mother doesn’t have the capacity to parent. She frequently has relationship issues fraught with domestic violence and drugs such that she is going from crisis to crisis and in the process she is unable to provide stability for herself or her children.

The director seeks a continuing care order and the plan of care is for a closed adoption. [ 42 ] The father acknowledges he is in no position to have the children returned to him. He has had no visits with the children since December 3, 2014. [ 43 ] K.A.M. is three months shy of her fifth birthday. She was removed at birth, only knowing foster placement. She was in the same foster home until June 2015 when that foster mother moved back to England. She is now in a new foster home with her younger brother.

Those foster parents are contemplative of making an adoption application if a continuing custody order is made. The children are potentially one-eighth Metis and the current foster parents aren’t first nations, so the adoption process is unsettled. [ 44 ] Both kids are active. Both have asthma and use inhalers. The kids have a good bond with each other. Both kids are otherwise physically healthy, intelligent and happy. The emotional health of the older child is not as healthy.

She now receives counselling because of her acting out in the foster home or while on visits. [ 45 ] Throughout the four days of hearing in September 2015, the parents always sat in court in close proximity to each other. Their interaction was consistent with a level of co-dependence, in spite of their separation. With subsequent court appearances, they did seem more distant with each other, as if the separation is starting to take hold. It is in circumstances where they now no longer live in the same communities. III.

THE LAW [ 46 ] The whole of the Child, Family and Community Service Act has been considered, with particular attention being given to Sections 2, 4, 13, 40, 41,45, 49 and 68 as set out below: 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. 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. 13(1) A child needs protection in the following circumstances: (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child; (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child’s parent; (

e) if the child is emotionally harmed by the parent’s conduct;

(2) For the purpose of subsection (1)(e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety (

b) depression, (

c) withdrawl, or (

d) self-destructive or aggressive behavior 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 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 the 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.

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

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

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. 45(1) The total period during which a child is in the temporary custody of the director…must not exceed, from the date of the initial order until the child is returned to the parent or a continuing custody order is made,… (a) 12 months, if the child or the youngest child who was the subject of the initial order was under 5 years of age on the date of that order….

(1.1) On application the court may extend, by a specified period, a time limit in subsection (1) if the court considers it in the child’s best interests to do so.

(2) In this section, “initial order” means a temporary custody order made under section 41(1)(

b) or (

c) or 42.2(4)(

b) or (c). 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. 68(1) Before ordering that a child be placed in or returned to the custody of a person other than a director, the court may consider the person’s past conduct toward any child who is or was in that person’s care.

(2) In a proceeding under this Act, the court may admit as evidence any hearsay evidence that the court considers reliable, or any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding .

IV. ANALYSIS [ 47 ] With the history provided, nobody disputes there are sufficient grounds for finding the children are in need of protection. At issue is whether the best interests of the children require continuing care orders. One must remember that the test for a continuing care order for the older child under s.49 is different than the test under s.41 for a continuing care order in the first instance for the younger child. Under

section 41 the onus is on the director to convince the court on the balance of probabilities that there is little prospect it would be in the child’s best interests to be returned to the mother. That is a much more stringent test than the s.49 test where a continuing custody order will usually follow unless there is evidence showing, on the balance of probabilities, a significant likelihood that the circumstances that led to the child’s removal will improve within a reasonable time. [ 48 ] What is a “reasonable time?” The legislation in

section 45 gives significant guidance in that regard. S.45(1.1) allows the court to apply a “best interests of the child” test in determining “reasonable time.” It gives a guideline of twelve months as the reasonable total period of time any child under age five should be under the temporary custody of the Director. One must remember that the date of removal is different than the date of the beginning of a “temporary” order. These two children were removed from birth.

The first temporary custody order for K.A.M. was made June 29, 2011, thus it has now been four and a half years K.A.M. has been in the temporary custody of the Director. When looking at the best interests of the younger child T.M., the court is mindful that in spite of the [d.o.b.] removal from birth, no temporary custody order has yet been made. It is an application for a continuing care order in the first instance.

The mother has in fact had two years since the birth of T.M. to work towards improving her situation in an effort to create some meaningful prospect of it being in the best interests of the child to be returned to the mother. [ 49 ] The status quo for these children has been foster care since birth. Counsel for the mother correctly submits the court cannot deprive children of their parents simply because of the length of time it takes to process a case ( CSS (Re ) ), [1998 BCJ No. 2969 (PC) par 56-57] .

This is another way of saying that the status quo (children settled into foster care and never having lived with the natural parents) created by the length of time it took to process a child protection case should not receive the weight such “status quo” might receive in a primary care dispute between two parents.

However, the length of time following a removal is always relevant to determining whether the circumstances that led to the removal will improve within a reasonable time (s.49(5)), or whether there is little prospect it will be in the child’s best interests to be returned to the parent based on the likelihood that the child will suffer harm as a result of lengthy unresolved parental issues which are seen as keeping the child at risk (s.41(2)(c)). [ 50 ] The guiding

section 2 principles make it clear that the safety and well-being of the children is the paramount consideration. Principally, the preferred environment for a child is in the family home, provided the safety and well-being of the child can be met in that home with proper supports. That said, the support resources are not endless and it isn’t the role of those supports to become the primary care giver. [ 51 ] The Director submits the mother does not have the parental capacity to parent her children.

Such capacity arguments usually will require a professional parental capacity assessment by a qualified professional who can analyse the intellectual capacity of the mother. The Director chose to not fund any such parental capacity assessment. I find that action fundamentally wrong. The court does not have the ability in this case to make such a parental capacity assessment from the bench, in circumstances where the mother is clearly oriented to person, place and time and able to rationally give her evidence.

Some diminished capacity is painfully obvious, but absence of parental capacity is not so obvious and it hasn`t been sufficiently proven, in the absence of a parental capacity assessment. Finding the Director has not proven the absence of parental capacity is not the conclusion of the matter. Even assuming parental capacity, there must be some evidence that the circumstances that led to the removal will be improved within a reasonable time.

At times parents having the capacity to do better, make choices which militate against it being in the child`s best interests to be returned. [ 52 ] In recent times the mother has made three significant improvements. First, I accept the mother is now maintaining sobriety. Second, she recently ended her relationship with K.M. One would hope that is a permanent thing, in spite of the very lengthy history of separation and reconciliation between them. Third, on October 5, 2015 she moved to Kelowna to attend the Karis supportive living home for women.

These three factors, viewed in isolation, would persuade the court not to make a continuing care order, but for other complicating factors. [ 53 ] B.S. continues to gravitate towards unhealthy, dysfunctional relationships, leading to an absence of stability in her life. She was sexually abused as a child by her father`s friend and by her father. She has never sufficiently dealt with the post-traumatic stress issues resulting from those abuses.

She was then victimized by the father of her first daughter and in spite of intensive efforts with many professionals trying to help and support B.S., she was unable to shake off the dysfunction sufficient to avoid that daughter becoming a continuing care ward in 2008. Even before that continuing care order was made, she had already gravitated to her relationship with K.M. and she was yet again victimized. [ 54 ] R.S.’s second daughter K.A.M. was born in 2011.

She was removed from birth due to the high level of dysfunction in the home, which made it likely the best interests of K.A.M. could not be met in the home. Between February and June 2012 the Director funded intensive support for the family, yet the underpinnings of dysfunction and living from crisis to crisis continued. [ 55 ] In November 2013 T.M. was born and there was yet another removal from birth given the protection concerns had never been resolved. A 10 Dec 2013 Meconium test on the new-born child T.M. tested positive for cocaine. The dysfunction was much deeper than illegal drug use.

The mother seemed unable to remove herself from dangerous situations and therefor would be unable to keep her children safe. She chose to continue reconciling with K.M. and in the process she was assaulted on occasion. B.S. allowed multiple undesirable people to stay in her home and multiple neighbours complained of this to the landlord. B.S. told others she allowed K.M. to live there because she loved him and she wanted him to get help. B.S. was eventually evicted from her residence after K.M. allegedly assaulted her in March 2015.

That criminal trial is ongoing. [ 56 ] In April 2015 B.S. was with a man named Norm and Norm told the landlord that he was B.S.`s new boyfriend. B.S. denies Norm was her boyfriend but she agrees Norm likely told this to the landlord. In June 2015 B.S. claims she was sexually assaulted by another man she knew from a prior drug treatment centre. B.S. a few days later ended up in the Vernon hospital having suicidal idealization. She then moved into the Vernon woman`s shelter for a few days. In late August she rented a place in a Vernon community

supported living home. [ 57 ] On October 4, 2015 (the day before her move to the Karis home in Kelowna) B.S. was in the genesis of yet another dysfunctional relationship with a man named R.F. She denies that relationship in spite of having told the police and social worker on October 4, 2015 that R.F. was her boyfriend. In court she testified that he was just a male friend but not her boyfriend. The evidence overwhelmingly points to them being in some form of close relationship.

On October 4, 2015 the police and social workers are at the home of R.F. at 2:55 a.m. in circumstances where B.S. is also present, having access to the home even before R.F. arrived. That situation yet again involved child protection concerns. It is in this backdrop that B.S. arrived at Karis housing in Kelowna on 5 October 2015. [ 58 ] B.S. has been victimized since her childhood and she will benefit from the life-skills guidance she will receive at Karis. She needs support in learning how to not be victimized by men who are willing to take advantage of her. She needs to learn how to protect herself.

Unfortunately, she is nowhere near able to look after the best interests of her children. This is in the context of it now being over seven years since her first daughter was made a permanent ward (March 29, 2007 removal and June 19, 2008 continuing care order). It has continued being true since the removal of her second daughter K.A.M. at birth on [omitted for publication] and unfortunately it continues being true after the removal of her son T.M. at his birth on [omitted for publication]. [ 59 ] B.S. is no longer a teen-ager. She is now twenty-eight years old, turning twenty-nine in January.

New-born children don`t have years to wait for their parents to grow up and live a functional lifestyle. In early years the brains of children are developing and learning how to deal with stress. If the child`s primary care giver is living from crisis to crisis and unable to deal in a healthy way with the stresses of life, the child`s brain runs the risk of becoming wired into dealing with stress in a similar dysfunctional way. The courts are regularly told by experts of such attachment disorders. Two years in the life of a developing pre-school child is different than two years in the life of an adult.

There are sound “best interest of child” reasons why a guiding principle of the CFCSA is to deal with decisions relating to children in a timely manner (s.2(g)). [ 60 ] I do not question B.S. loves her children. I do not question the children love their mother. In addition to love, a parent needs to be able to properly nurture and protect children. When B.S. demonstrates over a decade that she is unable to protect herself from dysfunction, the children can’t then be added into that dysfunction. Love alone isn’t enough. [ 61 ] The plan of care of the Director is adoption.

That plan has unfortunately been somewhat thwarted by the court system that is to be the vanguard of children removed by the Director. There is just no rational excuse for this matter taking so long to complete.

The Director applied on July 6, 2012 for a continuing care order for K.A.M. and it is just now completing. [ 62 ] I have no hesitancy in now finding there is little prospect it will be in the best interests of T.M. to be returned to his mother. [ 63 ] Regarding the s.49 test for K.A.M., there is no significant likelihood that the circumstances that led to the child’s removal will improve within a reasonable time.

The mother is slowly making some improvements, but with the soon to be five year old daughter removed from birth, it can`t be said that there is a significant likelihood there will be sufficient improvements within a reasonable time to justify not making a continuing care order in the best interests of the child. V. CONCLUSION [ 64 ] The child K.A.M. was found by the court on 29 June 2011 to be in need of protection.

This court now finds pursuant to s.40 of the CFCSA that the child T.M. is also in need of protection. [ 65 ] This court orders pursuant to s.49(5) that the Director now have continuing custody of the child K.A.M. [ 66 ] This court orders pursuant to s.41(1)(

d) that the Director now have continuing custody of the child T.M. -------------------------------------------- R.R. SMITH, P.C.J.