Director v. V. Date:, 2012 BCPC 161

Citation: Director v. V. Date: 20120423 2012 BCPC 0161 File No: 13954 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 CHILDREN: J.J.V.(1) , born [DOB] J.J.V.(2), born [DOB] J.J.V.(3), born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.B. PARENT AND: R.V. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Director: Ms. C. Oien

Counsel for the Parent, Christine Benton: Ms. D. McBain Counsel for the Parent, Ralph Vos: Ms. B. Muliner Place of Hearing: Kamloops , B.C. Dates of Hearing: January 23, 24, 25, 26, February 27, 28, 29, and March 1, 2012 Date of Judgment: April 23, 2012 [ 1 ] This is an application by the Director under the Child, Family and Community Service Act for a finding that the children are in need of protection and for a six month temporary custody order of the following children: J.J.V.(1) born [DOB], J.J.V.(2) born [DOB], and J.J.V.(3) born [DOB]. [ 2 ] Each of these children have challenges that must be met.

J.J.V.(1) engages in cutting. J.J.V.(2) suffers from encopresis and enuresis. J.J.V.(3) evidently has cognitive challenges. [ 3 ]

Section 13 of the Child, Family and Community Service Act (C.F.C.S.A.) provides as follows: 13

(1) A child needs protection in the following circumstances: (

a) if the child has been, or is likely to be, physically harmed by the child's parent; (

b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

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; (

f) if the child is deprived of necessary health care; (

g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment; (

h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care; (

i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being; (

j) if the child's parent is dead and adequate provision has not been made for the child's care; (

k) if the child has been abandoned and adequate provision has not been made for the child's care; (

l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

(1.1) For the purpose of subsection (1) (

b) and (

c) and section 14 (1) (

a) but without limiting the meaning of "sexually abused" or "sexually exploited", a child has been or is likely to be sexually abused or sexually exploited if the child has been, or is likely to be, (

a) encouraged or helped to engage in prostitution, or (

b) coerced or inveigled into engaging in prostitution.

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

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. [ 4 ] The Director’s counsel submits that the applicable circumstances are (

a) physical harm, (

e) emotional harm, and (

l) the parents are unable to resume care at the completion of a Voluntary Care Agreement. [ 5 ] As can be expected, the parties are not entirely in agreement with respect to the family’s history or the events which led to the children being placed voluntarily into care. FAMILY HISTORY:

[ 6 ] C.B. and R.V. married in 1993. They moved to Walhachin in February, 1997. [ 7 ] The parties separated in 2000. Mr. V. was the one who left the family home. He originally stayed with friends in Walhachin, moving to Vernon and then to Kelowna. During the first year of the separation, he did not see the children. There was a restraining order in place preventing Mr. V. from contacting Ms. B. Ms. B. did not honour the spirit of that restraining order but twice went to Kelowna to talk to Mr. V. about seeing the children. She was unsuccessful and blamed Mr. V. for not having contact with her. [ 8 ] In 2002, Mr.

V. moved to Anaheim Lake for work. He remained there for two years. During that time, the children visited in the summers for six weeks at a time. During each of those visits, incidents occurred requiring medical attention for one or another of the children. Ms. B. complained that on each occasion when the child was hurt, she did not learn about it until after the fact. Mr. V. said he did advise her or have her notified afterward, after the crisis was dealt with. [ 9 ] In 2004, Mr. V. purchased a house in Walhachin next door to Ms. B. Ms.

B. had been in a common law relationship with S.F. since the break up of her marriage to Mr. V. She was not happy that Mr. V. moved next door. She did not permit the children to see their father. The children had to sneak next door to visit their father. [ 10 ] Shortly after Mr. V. returned to Walhachin, Ms. B., Mr. F. and the three children moved to Alberta. They were only there for about five months before returning to Walhachin. The children were unhappy about leaving the school they had come to love. [ 11 ] In December, 2005, Mr. V. went to court for access.

Even with an access order permitting him access every second weekend, Ms. B. refused to comply. As a result, Mr. V. said he only had eight overnights with J.J.V.(3) and three visits with J.J.V.(1) between the time of the order and his affidavit in October 9, 2011. [ 12 ] In August, 2010, Mr. F. announced to Ms. B. that he was separating from her. He left the family home and cut off financial support which caused a great deal of strife for the family. Ms. B. decided to move to Alberta. Mr. V. was opposed to this. As a result, a court order was made permitting Ms.

B. to move to Alberta with J.J.V.(1) and J.J.V.(3), and J.J.V.(2) was to remain behind with his father. This was a consent arrangement. [ 13 ] In November, 2010, Ms. B. moved to Alberta with J.J.V.(1) and J.J.V.(3). This arrangement came by way of a consent order. A

Section 15 Views of the Child Report had been prepared for the parties. As a result, J.J.V.(2) remained with his father, and J.J.V.(3) and J.J.V.(1) moved with their mother. While Ms. Brown, the counsellor who prepared the report, was aware of the family violence and explored this with the children during the preparation of the report, it is clear that these children do not communicate their fears and concerns well. They have since disclosed that the children agreed to this arrangement so that their father would not be alone. Mr. V. argued that the Director could have obtained its own Views of the Child Report but did not do so. In fact, the

Section 15 Report only indicates that a history of family violence was discussed with C.B. There is no indication that it was discussed with the children. [ 14 ] Life for J.J.V.(2) was not entirely unhappy. He was able to do activities with this father. There were concerns along the way that he had been left without care while his father worked on the coast. He stayed for a few weeks with Mr. V.’s parents and for a few nights with a family friend, I.S., and some neighbours. There was apparently plenty of food in the home, although there was no tolerance for junk food. Ms.

Swanton confirmed that J.J.V.(2) was well cared for by Mr. V. but claimed that the Director’s delegates in Ashcroft ignored her opinions in this regard. [ 15 ] As the Director’s counsel pointed out, Mr. V. was gone for approximately three months for this work. Ms. S. said that she looked after J.J.V.(2) for one week. He stayed with friends of his grandparents in Vernon for two weeks. There are 10 weeks unexplained for how J.J.V.(2) was cared for while his father was on the coast. Mr.

V. argued that the report only showed J.J.V.(2) was conflicted noting that if he stayed with his father he would miss his mother and sisters. [ 16 ] The second move to Alberta was short-lived as well. In February, 2011, Ms. B. moved to Cranbrook with the girls. This lasted for about three weeks. She had nowhere else to go, so asked Mr. V. if they could move in with him. He agreed and Ms. B. moved there with the girls in or around the end of March, 2011. [ 17 ] J.J.V.(2) was unhappy with having to move out of his room. He was also resentful that J.J.V.(3) and J.J.V.(1) did not have to do chores, while he did.

The house was overcrowded and there was a lot of yelling. The conditions were unacceptable as well, with water damage and mold. [ 18 ] Both parents are struggling. Mr. V. has issues with alcohol, drugs, his temper and his inability to properly care for the children. This dates back to Ms. B.’s original complaints following their move to Walhachin in 1997. Ms. B. was the one who was able to find employment so Mr. V. stayed home and looked after the children. Ms. B. said that she was not concerned about his ability to care for the children until she began to receive reports from the neighbours that Mr.

V. was not watching them. In one incident, the children were able to get into a partially emptied pool that had swampy, dirty water in it. The children were unable to get out and Mr. V. had to climb in to rescue them. He had to be assisted to get out. Mr. V. does not dispute this incident occurred and that it was a mistake to let the children out of his sight. [ 19 ] Apart from the neglectful care concerns that Ms. B. had, the family experienced a lot of domestic violence. Mr. V. admitted to choking Ms. B. on a dozen occasions. Ms. B. said there were even more instances. She also claimed that Mr.

V. hit her on many occasions. For some of those incidents, the children were also present. [ 20 ] Apart from harming Ms. B., Mr. V. also suffered an episode of depression. In an effort to get attention, he cut his wrist to make it look like he was attempting suicide. J.J.V.(1) was present for this and was extremely upset. [ 21 ] Communications between the parties have been poor through the marriage and subsequently. Ms. B. said that Mr. V. was angry and not engaging in conversations.

As the Director argued in submissions, the evidence was so inconsistent on this point that it is difficult to know whether there were any civil conversations. Ms. B. testified that communication was impossible so they could not speak, which explained why they did not make proper arrangements for the children. On the other hand, she said that she and Mr. V. did

have conversations about parenting the children. I agree with the submission by the Director that Ms. B. characterized her communications with Mr. V. to suit her needs in the moment. When it was necessary to show that she was working in the best interests of the children, the conversations were civil. When she was expressing her concerns about Mr. V.’ ability to care for the children, the communications were filled with anger. Mr. V. blamed Ms. B. entirely, saying that when she became angry he would simply walk away. [ 22 ] The children have also described Mr. V.’s violence against J.J.V.(2).

None of the children testified at the proceedings and so all of their reports have come through social workers, counsellors and foster parents. J.J.V.(2) claimed his father choked, hit, kicked and punched him. The girls confirmed that they had heard physical fighting between Mr. V. and J.J.V.(2). On one occasion, J.J.V.(1) saw Mr. V. choking J.J.V.(2). J.J.V.(1) attempted to separate Mr. V. from J.J.V.(2). She reported that her mother was doing nothing except watching what was going on and crying. After J.J.V.(1) broke them apart, Ms. B. thanked her for intervening. [ 23 ] Mr.

V. claims that the only harm he inflicted on J.J.V.(2) was when J.J.V.(2) flew into a rage in May, 2011 in the presence of his sisters. It was over an argument with J.J.V.(3) about cooking that set off his temper. He apparently smashed a mirror and was yelling. When Mr. V. held J.J.V.(2) down to control his tantrum, he conceded that he accidentally held J.J.V.(2) too tightly. When he realized J.J.V.(2) was having difficult breathing, he let him go. Mr. V. claimed this incident was upsetting to everyone. [ 24 ] Mr.

V. otherwise denies ever hitting, kneeing, choking or punching J.J.V.(2), or harming any of the other children. He says their allegations in that regard are untrue. [ 25 ] Mr. V. denies he has a substance abuse problem. It is difficult to assess whether he uses substances or abuses them. Ms. B., Ms. S. and Mr. V. all described him as a marijuana smoker and a drinker. He refuses to have a hair test done because he claims that he has a medical condition preventing his hair from growing. Consequently, a hair test would not accurately reflect his use. Ms. B. said that he smokes 20 marijuana cigarettes a day.

She said that he drinks three to four glasses of alcohol a day. The children confirmed Mr. V. smokes marijuana and drinks alcohol. [ 26 ] Eventually, in May, 2011, the children were all placed in care pursuant to a Voluntary Care Agreement. However, neither parent met the expectations of the Director during that placement so the children have been formally removed. [ 27 ] Following the Voluntary Care Agreement, the children began to disclose further incidents of harm, particularly against J.J.V. (2) but also with respect to Mr. V. hitting the girls. [ 28 ] Since the children have gone into care, Mr.

V. has not sought access to his daughters. They have not seen him and have expressed that they have no desire to do so. Mr. V. has seen J.J.V.(2) three times which are the only occasions which he has requested access to J.J.V.(2). Initially, J.J.V.(2) indicated that he did not want to see Mr. V. However, in October, 2011, he decided that he did want to see Mr. V. [ 29 ] Mr. V. has not engaged in the mental health counselling sought by the Director. He takes no responsibility for his behaviours and it is the Director’s position this stands in the way of him learning to be an effective parent. [ 30 ] Ms.

B. has suffered under stress and has bouts of depression. She exhibits poor judgment and is an ineffective parent when it comes to protecting her children. Two of the more alarming incidents include the occasion when J.J.V.(1) stopped Mr. V. from choking J.J.V.(2) while Ms. B. sat by crying, and when Mr. V. tried to make it look as though he was trying to commit suicide. Although J.J.V. (1) was only a young child at the time, Ms. B. did not attend to her upset daughter. She preferred to ignore Mr. V. because she knew he was not really trying to commit suicide.

This exhibits an extreme disregard for the impact of a parent’s actions on a child. [ 31 ] Despite the domestic violence in the home and the restraining order put in place in light of that violence, Ms. B. attempted to engage Mr. V. in a breach of that order. There were any number of other more efficient ways for her to arrange access for Mr. V. but she did not engage in them. [ 32 ] Despite Ms. B.’s parenting concerns while she was living with Mr. V. and the violence in the home, she permitted the children to go visit their father for six weeks at a time when he moved to Anaheim Lake. I do not fault Ms.

B. for affording access to the children’s father. I do question her judgment if she felt that he was incapable of providing proper, safe care for them. [ 33 ] At present, these parents have no insight as to why their children are suffering so significantly with emotional problems. Their behaviours are a product of the environment they have lived in resulting in emotional and physical harm to these children. It is clear at this point that neither parent is capable of putting the needs of their children ahead of themselves without engaging in the counselling the Director wishes to see them take.

The parents have instead embarked on a course of action which blames foster parents, schools, each other and the Director for the state they are in, the plight of their children, and their failure to meet the Director requirements during the course of the Voluntary Care Agreement. [ 34 ] Counsel for Ms. B. argued that the expert evidence of the doctors testifying was biased because they did not have relevant information with respect to J.J.V.(2). Certainly some of the information provided by the social workers, the child and youth mental health counsellors was not accurate.

However, the very physical presentations of his emotional state cannot be disputed. He has suffered from encopresis and enuresis all of his young life. His desire to remain in foster care only heightens the very troubling circumstances in which he finds himself. [ 35 ] While it was frustrating that none of the witnesses testifying on the part of the Director came to court with their files, I am satisfied that there is more than sufficient evidence to find that J.J.V.(2) has suffered terribly in his environment and will require a good deal of counselling to overcome his mental health issues.

I agree with counsel for Ms. B. that the care he is going to need cannot be fleeting or transient as it was with Ms. K. However, the efforts made by his parents have fallen far short of his needs and their conduct between each other as well as Mr. V.’s treatment of J.J.V.(2) has only compounded the seriousness of his problems. Certainly J.J.V.(2) has had temper tantrums and has a history of defiance in school. However, this cannot diminish the perception of those who have engaged with J.J.V.(2) that he seems beaten and defeated. His current improved state of affairs is not a product of living a “very carefree,

privileged life”, but of living in an environment which is free from the violence and stress that he suffered at home. [ 36 ] Having said that, Ms. B. is not opposed to the Director having temporary custody of J.J.V.(2). She is prepared to have him return to her custody at a later date if it is determined that Mr. V. is not able to provide J.J.V.(2) with the care that he needs. She seeks regular phone contact and unsupervised visits in the meantime. She also wishes for the Director to pay for the costs of those visits. [ 37 ] With respect to J.J.V.(3), Ms.

B. has advocated well for giving her the support at school that she required. T.B., J.J.V.(3)’s counsellor, described her as scared and profoundly sad. However, he was not aware that J.J.V.(3) had been assessed with a learning disability. Clearly there was a miscommunication amongst those who are supposed to be providing assistance to J.J.V.(3). [ 38 ] With respect to J.J.V.(1), Ms. B. immediately sought help when J.J.V.(1) first began cutting. That cutting has continued since J.J.V.(1) went into care. Ms.

B. also approached the Director herself when she struck J.J.V.(1) with a belt because she knew it was wrong and she knew she needed help. Ms. B. maintains that she has a strong relationship with J.J.V.(1) to this day. They text each other daily. [ 39 ] Ms. B. concedes that when the children went into voluntary care she was in no position to care for J.J.V.(1) and J.J.V.(3). The end of her common law relationship was traumatizing to her both financially and emotionally. Her efforts to move in order to start over failed. She returned to Walhachin in response to her daughter’s unhappiness with the move to Cranbrook.

This proved to be an unhappy arrangement. Mr. V. and J.J.V.(2) had to share a room. Ms. B. and the girls shared another room. The quarters were too close and the history of domestic violence was a recipe for the failure. [ 40 ] There is no question that Ms. B. was seeking assistance. She sought out counsellors for her mental and emotional health. However, she ended those sessions when she moved to Ashcroft making her access more difficult.

This was a result of the Director asking her to find accommodation in Ashcroft to facilitate her daughters continuing to go to school there. [ 41 ] Having moved to Ashcroft, she had a number of challenges with seeking accommodation and dealing with her bankruptcy. She began seeing R.W. in August. The length of time it took her to do this, she claimed, was because the Director told her that the counselling was not the top priority on her plate. When she was no longer able to continue counselling in Ashcroft, Ms. B. declined to go to Kamloops for those appointments.

There is no question that her employment circumstances and financial constraints were not conducive to frequent counselling visits in Kamloops. [ 42 ] Ms. B. has had a number of frustrations getting visitation with her children. They were moved to foster care in Merritt while she lived in Cache Creek. The same limitations with respect to her employment and financial circumstances made it difficult for her to travel to Merritt more frequently. However, she has also subsequently moved to the coast making it even more difficult both in distance and in cost for her to visit the children.

She wants the Director to send them to visit her there. The move to Chilliwack was not to facilitate the return of her daughters to her, but to look after her own needs. The move to Abbotsford is expected to facilitate securing better employment and a suitable place for the children to live. She hopes to continue her educational upgrading and plans to make further arrangements for counselling. However, the crux of it is she has placed everything ahead of her counselling and the needs of her children. The counselling is key to her being able to parent her children effectively, given their challenges. [ 43 ] Ms.

B. argued that it is not in the best interests of J.J.V.(3) and J.J.V.(1) to remain in care. She does want them to remain in Merritt in foster care until they complete the school year. She seeks regular phone contact with J.J.V.(3), since she already has it with J.J.V.(1). She would like a

schedule of visitation until the end of the school year so the girls can travel to Abbotsford, at the costs to be covered by the Director. Then J.J.V.(3) and J.J.V.(1) should be transitioned to Abbotsford ultimately to live with their mother. They want the Director file concerning J.J.V.(3) and J.J.V.(1) to be moved from Ashcroft to Merritt and contacts to be made with the Abbotsford Director of Children and Families to set up a social worker to assist the family in their reuniting. CONCLUSION: [ 44 ] I find that all three children are in need of protection.

From the time the children entered into voluntary care to the present, the expectations of the parents have remained the same. Those expectations have not been met. It is appropriate for a six month temporary custody order to be made which will afford the parents a further opportunity to comply with the following expectations of the Director: From Ms. B.: 1) Engage in mental health counselling with a qualified mental health practitioner and attend frequently and consistently. 2) Engage in parenting courses.

These courses should be directed towards parenting teens and teens with challenges. 3) Obtain housing that is appropriate for the children and maintain a consistent living environment. From Mr. V.: 1) Mr. V. needs to come to terms with the role he has played in placing his children in an unsafe environment, particularly his physical assaults on the children and his substance misuse. 2) Continue parenting courses.

These courses should be directed towards parenting teens and teens with challenges. 3) Engage in anger management counselling. 4) Engage in mental health counselling with a qualified mental health practitioner. 5) Engage in drug and alcohol counselling.

[ 45 ] Mr. V. claimed that he has regularly attended counselling and parenting courses through R.W. since J.J.V.(2)’s removal. He says that he has learned a number of parenting skills as a result of these courses and is better able to deal with his son. [ 46 ] Mr. V. claimed that J.J.V.(2) wanted to be in foster care because it is apparently considered cool by teens in that community. He said this had been overheard by his friend Ms. S. However, Ms. S.’s evidence did not go that far. She said that a child had indicated that things were fine for her in foster care.

There is some suggestion that the luxurious accommodation J.J.V.(2) now enjoys is also a reason why he wishes to remain in foster care. These views exemplify profoundly the lack of insight Mr. V. has into the impact that indifference and violence have had on J.J.V.(2). [ 47 ] Mr. V. wants J.J.V.(2) returned to him and is prepared to agree to a supervision order in order to achieve that. He is committed to taking J.J.V.(2) to specialists and counselling to deal with the encopresis.

He agrees to continue taking parenting courses directed to dealing with family dynamics and teens with challenges, personal counselling, and alcohol and drug counselling. [ 48 ] If the temporary custody order is granted, Mr. V. requests access to J.J.V.(2) to continue. He prefers unsupervised access. If it is supervised, he wishes the longer visits and weekend visits offered by Mr. L. [ 49 ] Ms. B. shall have access to J.J.V.(1) and J.J.V.(3), supervised at the discretion of the Director.

I urge the Director to consider her request that the daughters be permitted to travel to Abbotsford in order to adjust to what will conceivably be their new home. Access to J.J.V.(2) will be supervised at the discretion of the Director and in the manner determined by the Director. [ 50 ] Mr. V. shall have access to J.J.V.(2) supervised at the discretion of the Director. Again, while I make no order to this effect, I urge the Director to consider the offer by Mr. L. to accommodate longer access visits and even overnight access visits supervised by Mr. L.

There is to be no access to J.J.V.(3) or J.J.V.(1) except in accordance with their wishes, in the manner determined by the Director and supervised at the discretion of the Director. ________________________ S.D. Frame Provincial Court Judge