Director and TJ.S. and S.A.K. Date:, 2015 BCPC 257

Citation: Director and TJ.S. and S.A.K. Date: 20150916 2015 BCPC 0257 File No: 14724 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: S.T.S. , born [omitted for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.A.K. PARENT AND: T.J.S. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME

Counsel for the Director: Mr. Graham Kay Counsel for the Parent, T.J.S.: Ms. Lisa Scruton Place of Hearing: Kamloops , B.C. Date of Hearing: September 11, 2015 Date of Judgment: September 16, 2015 [ 1 ] This is an application by the Director to extend total time in care with respect to the removal of the child, S.T.S., born [omitted for posting] and to make that extension retroactive to June 16, 2015. S.A.K. takes no position on the application. She and her counsel appeared through Ms. Scruton as their agent. [ 2 ] S.T.S. was removed due to safety concerns on January 18, 2013. He was then five months old.

Proceedings were commenced on January 23, 2013 granting the Director interim custody of the child. The parents were granted access to be supervised at the discretion of the Director’s representative. [ 3 ] On March 6, 2013, a consent order was entered with respect to a finding of need of protection and a three month temporary custody order to expire on June 16, 2013. [ 4 ] On June 19, 2013, after the temporary custody order had already expired, a further temporary custody order was granted to expire on September 19, 2013. This was again extended on October 23, 2013 to expire June 23, 2014.

There appears to have been no order between September 19 and October 23, 2013 evident on the record to deal with that intervening period. There may have been an interim order, but I have not seen it. [ 5 ] The file was back in court on January 22, 2014 at which time the application to extend the temporary custody order was adjourned to February 12, 2014. An application for a continuing custody order was filed on February 12, 2014. The file was again adjourned to March 19, 2014, April 2, 2014, and April 23, 2014. It was again adjourned on that date to February 26, 2014.

It was only on April 2, 2014 that total time in care was extended to a new date. By then, S.T.S. had been “in care” for nearly 15 months. [ 6 ] On April 23, 2014, total time in care was extended to May 7, 2014, being the date to which the applications were adjourned. Again on May 7, 2014, total time in care was extended and the application adjourned to the Judicial Case Manager. On August 22, 2014, total time in care was extended and the applications adjourned to October 1, 2014.

The total time in care and applications were again adjourned that date to October 22, 2014, November 14, 2014, December 16, 2014 and June 16, 2015. The adjournment on December 16, 2014 resulted in a six month “last chance” temporary custody order. By this time, S.T.S. was nearly 28 months old. He had spent 23 of those months in care. [ 7 ] Unfortunately for the child, the application did not appear before the court again until June 17, 2015 at which time total time in care had expired again, this time by one day. [ 8 ] The parents have already been granted what is colloquially known as a last chance order.

If this matter is set for trial on the current continuing custody order application, the options are extremely limited with respect to what orders can be made. [ 9 ] As it should, the legislation contains very strict guidelines with respect to when notice must be served, how much notice must be given and how long the Director can keep a child in care under a temporary custody order.

These are extremely important time limits in order to ensure the child is not in care any longer than need be, permanency is resolved as quickly as possible in the best interests of the child, and both the Director and parents know the timelines they are working toward in order to establish what the appropriate outcome ought to be. These are not merely administrative dates. Of particular importance is the amount of time for which a temporary custody order can remain in effect for a child as young as S.T.S.

It is also important to bear in mind that extensions of the temporary custody order should only be granted where there has been some progress made toward addressing the protection concerns such that a safe return can be effected. If the parents have established a safe environment, the child should be returned. If no effort has been made or too little consistent effort is made, the Director should move quickly to seek the continuing custody order.

The child should not be left to languish in uncertainty. [ 10 ] Under s. 45, the total period during which S.T.S. could remain in the temporary custody of the Director was not to exceed, from the date of the original order, a period of 12 months. It is clear that the legislators turned their minds to the importance of permanency for these young children.

It is only if it is in the best interests of the child that the court should extend the time beyond that total period of temporary custody. [ 11 ] As here, the Director must file an application for continuing custody not sooner than 60 days before the temporary custody order expires and provide at least 10 days’ notice of the hearing date for that application. [ 12 ] I have no evidence before me with respect to what transpired regarding keeping of diaries for the expiry of the various orders on this specific file other than generalities until the social worker, Donna Fraser, resumed conduct of the file in May, 2015. [ 13 ] Ms.

Fraser has been with the Ministry of Child and Family Development in various capacities for 25 years. She was off work during 2014 for a period of 18 months, returning on a trial basis in May, 2015. When she returned, she had a new computer system to learn, as well as new files to review. She was back to full time in June, 2015 with 70 cases in her caseload. This is, evidently, the low end of the normal range of 70 to 100 cases per social worker. [ 14 ] The cases were handed to Ms. Fraser in groups of 10s and 20s. She reviewed those cases on her own as well as with the social

worker transferring the file to her. She would prioritize the files according to what stage each of the children were at. Her priorities were according to time in care and upcoming court attendances. [ 15 ] In this case, Ms. Fraser met with Chelan Lubin, the social worker who had conduct of the file in Ms. Fraser’s absence. They met for a full day and discussed the various upcoming court dates. Ms. Fraser concedes that she did not, at that time, review total time in care. Her caseload was so busy at the time that she was only concentrating on the court date.

She testified that she did not realize the lapse of the total time in care by only one day would cause a concern for the courts. It is not so much a concern for the court as it is for the child. Lapsed time is loss of jurisdiction. [ 16 ] Ms. Fraser is also aware that the parents are entitled to 10 days’ notice of an application to extend the total time in care. She met T.J.S. on May 17, 10 days after assuming conduct of the file. She acknowledged the e-mail from her supervisor, Dana McKenzie, to Ms. Lubin on May 20 noting that the total time in care would expire in June. This notice went to Ms.

Lubin because, at the time of the e- mail, Ms. Fraser was not yet on the new computer system. She was not working the file with Ms. Lubin, but Ms. Lubin did pass the message on to her. [ 17 ] Ms. Fraser acknowledges that she received the message that the last chance temporary custody order would expire June 16. She also acknowledges that she could have prepared the application to extend the total time in care at that time. However, it slipped her mind. Ms. Fraser did handle the file a number of times between May 20 and June 17. The diaries ought to have come to her attention in that time, but they did not.

In the meantime, counsel for T.J.S. was contacting Ms. Lubin. Ms. Lubin believed she was responding appropriately by sending faxes and passing messages on to Ms. Fraser. Neither she nor Ms. Fraser contacted Ms. Scruton at any point, with the possible exception of one telephone call that may have been a voicemail exchange between Ms. Lubin and Ms. Scruton. There were a number of alerts that ought to have brought the time constraints to the attention of one or the other of the social workers to ensure that the time did not lapse.

It is particularly concerning that no one was mindful of the very undesirable circumstance that this child had then been in care for 29 months, being more than 27 months from the making of the first temporary custody order following the finding of a need of protection made on March 6, 2013. [ 18 ] Bearing in mind that a new computer system had been implemented, it is frankly astounding that an organization governed so strictly by time limitations did not provide for an automatic diary system which could be updated from time to time to reflect the realities of each case.

The diary system that is in place is wholly and woefully inadequate to the governance of the best interests of children in care. This is clear not only from this expiry but from the others that preceded it. The court is not here to rubber stamp extensions. Notice must be given, time limits adhered to and justifications made ready in case they are asked for. [ 19 ] The system in place between the prior Director’s counsel and the Ministry is not known to me. However, Mr.

Kay has a system whereby his office notifies the social workers every Thursday following family remand Wednesday of the status of each order made together with the expiry dates in question. At first blush, one might wonder why the lawyer did not also diarize for the expiry of these orders. However, when one considers the various steps that can and are often taken by the social workers in the course of these files, that would not be practical.

Mediations often end in mediated agreements; protection concerns resolve themselves resulting in the return of the children and sometimes there is even a deliberate lapse of the orders; the Director may decide to pursue a supervision order instead of continuing with the temporary or continuing custody order applications. Any number of outcomes can alter the course of the proceedings as well as the governing time limitations. This is presumably why the diaries are left to the social workers as are the preparation and service of the applications. [ 20 ] Ms.

Fraser testified that she keeps a personal calendar which she reviews regularly to determine what orders are coming up for expiry, what matters are in court, and when next steps must be taken. Apart from her calendar, there is no other alert system in place except for the weekly mailing from the lawyer’s office. If Ms. Fraser becomes too busy to look at the calendar, or if she handles the file and some other course of action is taken, it is too easy for her to forget to take a step to meet the time requirements. [ 21 ] Ms.

Lubin testified that once she is no longer in control of a file, she does not follow up with the various limitations that she kept on her own day timer. She keeps a similar diary to Ms. Fraser but only for the files she is actively involved in. Consequently, if a telephone call, e-mail or notification from the lawyer’s office comes in with respect to a file she no longer has charge over, she passes it along to the new social worker. She does not take any action herself. Given the caseload that each of the social workers bears, this is not unreasonable.

It could lead to unfortunate miscommunications and confusion if a social worker who is not in charge of a file is following up with lawyers or clients simply because she received that notification. However, at some point, someone has to communicate with the parents or lawyers that this social worker is no longer involved. In this case, T.J.S. assured Ms. Lubin that he had told his lawyer Ms. Fraser was now in charge of the file. Even so, when Ms. Lubin received the correspondence from Ms. Scruton not once, but several times, she ought to have communicated with Ms.

Scruton that she was no longer in charge of the file. Had she done so, Ms. Scruton may well have contacted Ms. Fraser and the two of them may well have sorted out what steps were going to be taken and when. Certainly Ms. Fraser ought to have contacted Ms. Scruton immediately upon realizing that Ms. Scruton was communicating with Ms. Lubin to advise Ms. Scruton that she was now the social worker in charge of the file. The volume of work seems to have been too great for both Ms. Fraser and Ms.

Lubin to ensure that communication was corrected. [ 22 ] As I have stated, there has been a finding of need of protection for S.T.S. The last chance order was granted by way of a temporary custody order expiring on June 16, 2015. It was not until February, 2015 that T.J.S. began to take active steps to exercise access to S.T.S. In fact, he only missed two visits in the time period leading up to June 16, 2015. However, when the temporary custody order inadvertently lapsed, T.J.S. decompensated significantly.

He was ultimately admitted to hospital as a result of this. [ 23 ] He also took Respectful Relationships and the PAID program in 2015. However, the social workers and foster parent still observe parenting capacity issues during the limited supervised visits T.J.S. does have. The latest observations have been very positive for preparations and parenting during those visits but the Director remains concerned that T.J.S. cannot sustain his parenting beyond the play time he enjoys at present. [ 24 ] S.T.S. remains in care.

If the total time in care is not extended in order to permit the continuing custody order application to be set and heard, the Director will notionally remove S.T.S. again and proceed with its continuing custody order application. The process

will have to start over with a presentation hearing and go forward to possibly more temporary custody orders. [25] The issue is what is in the best interests of S.T.S. Whether the Director has to commence another continuing custody order orproceed with the continuing custody order application already before the court, it will be some time before this matter can be set for trial.In the meantime, S.T.S. remains in care. There should be no significant difference in time to trial for the application regardless ofwhether it starts over or continues on unless the various stages of the proceedings are contested.

There is no way of knowing at thispoint if that will occur. The advantages in the process are entirely T.J.S.’s with no evident benefit to S.T.S. if an opposed presentationhearing would result in further days to trial. If the presentation hearing is not opposed, T.J.S. may well have another last chance orderarising from the application for the continuing custody order. This will create further delays for S.T.S. but may have the benefit that heis ultimately returned to his father’s care.

The delay in reaching permanency of a decision one way or the other must be weighed againstthe benefit there may well be in having S.T.S. return home. [26] The Director argued that it is not in S.T.S.’s best interests to recommence the proceedings against the backdrop of his father’shospitalization for anxiety. As part of that anxiety, T.J.S. missed 12 of 22 visits scheduled.

If T.J.S. were to improve his parenting skillsin the time it would take to get to trial regardless of whether it is a new proceeding, the Director would have to look at the father as anoption in any event. [27] While there have been improvements in T.J.S.’s parenting, they are by no means to the significance and degree as found in thedecision of the British Columbia (Director of Child, Family & Community Service) v. B.(A.), 2011 BCPC 160 , 2011 B.C.P.C.160. In that case, the limitation period had expired eight weeks prior to the court appearance. It was the judge who identified that totaltime in care had expired.

Not only did the Director fail to point this out to the court in the first instance, he failed to come to court whenthe court directed the Director attend to address whether there should be an extension of the total time in care. The court found that theDirector’s actions were contrary to the best interests of the child. [28] In the case before me, the total time in care had lapsed by one day. It was brought to the attention of the court immediately thenext morning.

Had the application for extension been brought the day prior to setting the application for trial, it would most certainlyhave been granted. [29] At paragraph 39 of the decision of B.(A.), supra, the court said: [39] Limitation periods exist for a reason. There are high expectations placed upon a mother and a father to follow through withprogrammes as directed by the Ministry in many files. If they do not do so, they are held accountable. There are high expectationsplaced upon this Court to ensure that the best interests of the child are paramount and that the legislation of the Act is upheld.

I thereforefind it very troubling and a distinct lack of accountability that counsel for the Director does not diarize limitations and states that it is theresponsibility of the Social Worker to do so and that in turn, the Social Worker states that she does not diarize limitation periods. Thesepeople are the custodians of this and many other children. [30] As I have said, the Director’s counsel in this case did keep the social workers apprised of the various limitations which could beexpected to be monitored by counsel at least with respect to this last order.

However, there is still the undesirable outcome that the socialworkers do not have a proper diary system in place to ensure that limitations are met and that those limitations are changed as the courseof proceedings change. The social workers rely too much on parents simply accepting that a re-removal is too traumatizing and too timeconsuming, and on the indulgence of the court to backdate expired orders.

As is evident in this case, not every parent is prepared toaccept what the social workers view as inevitable. [31] This case is not as egregious as the matter before Judge Arthur-Leung in B.(A.), supra, but any delay in achieving a resolution orpermanency for the child is contrary at least to some degree to the best interests of the child. In B.(A.), supra, the court was satisfied atthat point there was no evidence the child was in any danger if placed with the father. In this case, there is inadequate evidence ofprogress made by T.J.S., which progress came two years after removal.

Certainly if there had been more consistent signs of steadyprogress throughout the proceedings, I may well be compelled to find it was in the best interests of S.T.S. to deny the Director’sapplication to extend the total time in care retroactively. [32] In J.(D.) v. British Columbia (Superintendent of Family & Child Service), [1993] B.C.W.L.D. 995, Justice Parrett had a casebefore him where there was no finding that the children were in need of protection coupled with inordinate delay. There was no propernotice which compounded existing procedural difficulties.

The court held that the Director did not have a proper regard for the statutorylimits of its authority. At paragraphs 49 and 54 the court said this: [49] I do not wish to be taken as saying that fundamental matters in the Act, such as time limits, hearing requirements, and noticerequirements, are in any way to be treated “flexibly” by the Superintendent.

On the contrary, such matters are to be strictly obeyed, andwhere they are not, the courts will not condone such failure by the Superintendent to observe statutory requirements of its authority.However, the desire of the court to censure possible lapses in meeting statutory requirements through a finding of loss of jurisdictionmust be weighed against the consequences of such a finding… [54] Here, the inordinate delay is not in the trial process itself but in matters leading up to the trial and, in effect, constitutes a delay ofthat process itself. The same principles apply.

The entire thrust of the Act is to ensure that the Superintendent, although empowered toact quickly and decisively to take custody of children thought to be in need of protection, must adhere to strict time and noticerequirements so that the taking of custody may be disputed by the parents within the court process provided in a timely manner. Aboveall, it is for the court and not the Superintendent to make the critical finding that a child is in need of protection.

Without such a finding,the Superintendent has no power or authority to retain custody. [33] As stated in J.(D.), supra and in British Columbia (Director of Child, Family and Community Service) v. G.A.A. and S.E.A.,

2003 BCSC 492 , 2003 B.C.S.C. 492, the burden is on the Director to prove that it is in S.T.S.’s best interest to extend the totaltime in care and to make that extension retroactive to June 16, 2015. [34] I am satisfied that, had the Director sought an extension of the total time in care on June 16, 2015, it would have beenappropriate to extend it in order to have the continuing custody order application set for trial to reach whatever conclusion would haveresulted.

While T.J.S. has begun to exercise access more fully this year, this has not been without complications, given his significantstep backwards after June 16. The visits are short, supervised and largely positive. However, his role at these visits is as a play buddy asopposed to a caregiver. Ms. Scruton argued that S.T.S. is healthy and happy and enjoys visits with his father. He has no special needs inhis care. He has an emotional attachment to his father, whose August visits produced no parenting concerns.

She argued that if theDirector were required to do a notional re-removal and the process to commence again, it would permit the connection and bond todevelop to the point that S.T.S. could be returned to his father’s care. She acknowledged that T.J.S. had a lapse over the summer but heis working to get back on track again. [35] I find that the progress T.J.S. has made, while good, is not the kind of progress that would persuade me it is in S.T.S.’s bestinterests to start this process all over again. The bonding and parenting skills ought to have been developing in the last 28 months.

It isnot at all in S.T.S.’s best interest to have this proceeding delayed in order to allow T.J.S. to start over again. T.J.S. must make his bestefforts to engage fully between now and the trial date. S.T.S. must have certainty and permanency without further delay. I am extendingtotal time in care from and including June 16, 2015 to the next appearance day, being September 23, 2015. The continuing custody orderapplication shall be set for an assize or, if more trial time is needed, for a pre-trial conference to resolve the length of trial needed andtotal time in care shall be extended to that date.

Counsel must confirm this on the record as soon as those dates are fixed. _______________________________ S.D. Frame Provincial Court Judge