DIRECTOR OF CHILD, FAMILY, v. COMMUNITY SERVICE, 2022 BCPC 296

Citation: British Columbia (Director of Child, Family, and Community Services) v. G.A.H. and T.P.C. 2022 BCPC 296 Date: 20221228 File No: 17056 Registry: [omitted for publication] 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: A.M.C., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY, AND COMMUNITY SERVICE APPLICANT AND: G.A.H. PARENT AND: T.P.C. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Director : K. Surcess Counsel for the Parent G.A.H.

No appearance Counsel for the Parent T.P.C. I. Henderson Place of Hearing: [omitted for publication], B.C Dates of Hearing: January 31, Februray 2, 3; October 3, 4, 2022 Date of Judgment: December 28, 2022 INTRODUCTION

[ 1 ] A.M.C. is the biological child of G.A.H. and T.P.C. The Director of the Child, Family and Community Service Act ( the “ Director ”) apprehended A.M.C. from the hospital at birth. A.M.C. has been in the care of the Ministry of Family and Child Development (“MCFD”) ever since. She is now six years old. Both G.A.H. and T.P.C. have a history of mental illness and substance misuse. A.M.C. has never had any unsupervised time with either parent.

A.M.C. resides in [omitted for publication], BC, with her foster parent S.L. and attends grade 1 at [omitted for publication] Elementary School. [ 2 ] The Director is seeking a continuing custody order of A.M.C. on the basis there is no significant likelihood that the circumstances leading to A.M.C.’s removal six years ago will improve within a reasonable time. This is the sixth time the Director ’s application has come before this Court for hearing.

Despite years of supporting the parents with rehabilitative services and supervised parenting time, the Director has determined that A.M.C. cannot be returned to their care. G.A.H. agrees and has provided her written consent to A.M.C. remaining in the Director ’s care. T.P.C. wants to be an important and active parent in A.M.C.’s life. Ultimately, he would like A.M.C. to live with him full time. T.P.C. proposes that he gradually increase the number and length and quality of his visits with A.M.C., until such time as he can assume full custody of her.

ISSUES [ 3 ] The issues to be determined in this case are as follows: a. Was A.M.C. in need of protection at the time of her removal from her parents [at birth]? b. Is T.P.C. unable or unwilling to resume custody of A.M.C.? c. Is there any significant likelihood that the circumstances will improve within a reasonable time? d. Should an order be made under s. 49(7) (

c) of the Child, Family and Community Service Act (“ CFCSA ”) ? Or e. If the court does not return A.M.C. to T.P.C.’s care, should he continue to have access visits with A.M.C.? [ 4 ] A.M.C. is not an Indigenous child for the purposes of the CFCSA or the First Nations, Inuit and Métis children, youth and families Act, SC 2019 c. 24 .

PROCEDURAL HISTORY [ 5 ] The Director applies under s. 49(5) of the Child, Family and Community Service Act , R.S.B.C. 1996 c. 46 (the “ CFCSA ”) for a Continuing Custody Order (“ CCO ”) for the child A.M.C. born [omitted for publication], age six. [ 6 ] The Director initiated these proceedings on September 20, 2016, with the filing of its Presentation Report and Form “A” Report in the [omitted for publication] Provincial Court of British Columbia. There are now 71 documents filed in the court electronic information system (“CEIS”) with respect to this matter. There have been 49 court appearances and 19 orders.

This matter came before the court for Family Case Conferences on: December 7, 2016; February 7, 2017; May 9, 2017; March 13, 2018; and it has been scheduled for hearing on: December 3, 2018; June 3, 4, 5, and 6, 2019; September 4, 5, 6, 2019; March 26, 27, April 23, 24, 2020; May 3, 4, 5, and 6, 2021; January 31, February 1, 2, 3, 2022; and October 3, 4, 5, 6, 2022. [ 7 ] Both parents attended self-represented at the first appearance of the Director ’s application for an interim custody order (CEIS 1, 3) before Judge Galbraith in the [omitted for publication] Provincial Court of British Columbia.

After this initial appearance, both parents were represented by legal counsel. Judge Galbraith ordered the commencement of the presentation hearing and adjourned the matter to November 23, 2016, for continuation (CEIS 5). INTERIM CUSTODY ORDER (“ICO”) [ 8 ] On November 23, 2016, this matter came before me for a second appearance on the Director ’s application for an interim custody order (CEIS 1, 3). At that time G.A.H. was represented by legal counsel Mr. K. Thomson and T.P.C. was represented by legal counsel Mr. D. Frappier.

On that date, I ordered, by consent, that A.M.C. remain in the interim custody of the Director pursuant to s. 35(2)(

a) of the CFCSA and that G.A.H. and T.P.C. have reasonable access to A.M.C. at the discretion of the Director and supervised at the discretion of the Director pursuant to s. 55 of the CFCSA . TEMPORARY CUSTODY ORDER [ 9 ] On December 7, 2016, G.A.H. and T.P.C. attended before Judge Bayliff in the [omitted for publication] Provincial Court represented by their respective legal counsel. Both parents consented to the Director ’s application for a four-month Temporary Custody Order (“TCO”). On December 7, 2016, Judge Bayliff granted the Director ’s TCO application for four months pursuant to s. 41(1) (

c) of the CFCSA (CEIS 11). On February 7, 2017, the court extended the TCO by consent to May 24, 2017 (CEIS 12) and then subsequently to June 28, 2017 (CEIS 13), July 26, 2017 (CEIS 20), October 17, 2017 (CEIS 21). On November 29, 2017 (CEIS 35) and again on March 13, 2018 (CEIS 41) Judge Whonnock extended the total time A.M.C. could remain in the temporary custody of the Director to the end of the hearing of the Director ’s CCO Application. [ 10 ] Temporary custody orders are of limited duration.

Section 43 of the CFCSA holds that the maximum duration for an order of a child of A.M.C.’s age (under five years) is three months. Section 45(1) (

a) of the CFCSA limits the total time A.M.C. may be in the temporary custody of the Director to a period of 12 months. Subsection 45 (1.1) , however, allows the court to extend the total period during which a child is in the temporary custody of the Director from the date of the initial order (i.e. December 7, 2016) until the child is returned to the parent or a continuing custody order is made. On November 29, 2017, Judge Whonnock had extended the total time A.M.C. could be in the care of the Director until the end of the hearing of the Director ’s CCO Application (CEIS 35). CONTINUING CUSTODY APPLICATION

[ 11 ] On October 6, 2017, the Director filed its Form 2 Application for an Order that A.M.C. be placed in the continuing custody of the Director pursuant to s. 49(5) (

a) of the CFCSA (CEIS 24; the “CCO Application”). In support of this application, the Director relied on its Court Plan of Care filed October 6, 2017 (CEIS 23). FIRST CCO HEARING DATE: DECEMBER 3, 2018 [ 12 ] The Director ’s CCO Application was first scheduled for a one-day hearing (the “CCO Hearing”) on December 3, 2018, with Pre- hearing Conferences on October 31, 2018, and November 14, 2018. At the October 31, 2018, Pre-hearing Conference, T.P.C.’s lawyer, Mr. D. Frappier, asked to be removed as counsel of record because he had lost contact with T.P.C. In his stead, Mr. W.

Van Delft was appointed to represent T.P.C. On December 3, 2018, T.P.C. appeared in person before Judge Galbraith with his new legal counsel Mr. William Van Delft. G.A.H. also appeared in person and represented by her legal counsel Mr. K. Thomson. Judge Galbraith granted Mr. Van Delft’s request to adjourn the CCO Hearing because he had not had sufficient time to consult with T.P.C. and prepare for the hearing.

Judge Galbraith ordered the Judicial Case Manager to reschedule a four-day CCO Hearing (CEIS 46). [ 13 ] As discussed below, T.P.C. had been hospitalized and in treatment centres for long periods in 2018. [ 14 ] December 3, 2018 was the last time G.A.H. appeared in person in court. She continued to be represented by legal counsel until the end of May 2019, after which she no longer participated in these proceedings in person or by counsel or agent. SECOND CCO HEARING DATES: JUNE 3, 4, 5, 6, 2019 [ 15 ] The CCO Hearing was next scheduled for June 3, 4, 5 and 6, 2019. These dates were confirmed in December 2018.

T.P.C. was present in person and represented by legal counsel Mr. W. Van Delft. G.A.H. did not appear in person or by counsel or agent. On the first day of the CCO Hearing, June 3, 2019, Judge Hoy granted the parties’ joint request to adjourn the CCO Hearing in order to obtain records from the RCMP. THIRD CCO HEARING DATES: SEPTEMBER 4, 5, 6, 2019 [ 16 ] The CCO Hearing was rescheduled for September 4, 5 and 6, 2019. On September 4, 2019, T.P.C. appeared in person and represented by his legal counsel Mr. W. Van Delft. G.A.H. did not appear in person or by counsel or agent.

On the first day of the CCO Hearing, T.P.C. sought an adjournment, or failing that, a “last chance order.” He said that he had turned his life around, was now engaged in community services and wanted a chance to prove to the Director that he was now capable of caring for A.M.C. The Director opposed the application, given that it had been four years since A.M.C. had been removed from her parents’ care. Judge P. Whyte granted the adjournment request to give T.P.C. a further six months to mitigate the Director ’s concerns.

FOURTH CCO HEARING DATES: MARCH 26, 27, 2020; APRIL 22, 23, 2020 [ 17 ] The Director ’s CCO Application was rescheduled for March 26, 27, 2020, and April 22, 23, 2020. The court adjourned this hearing due to the onset of the COVID-19 pandemic. The court scheduled a subsequent appearance on July 15, 2020, which Mr. Van Delft appeared as counsel and agent for T.P.C. The matter was adjourned to September 23, 2020, then October 28, 2020, then December 9, 2020. [ 18 ] Instead of increasing the number, frequency and quality of A.M.C.’s visits with her father, the Director stopped them all together.

I gather this was due, at least in part, to the mobility restrictions in force after 2020 as a result of the COVID-19 pandemic. I also note that in the fall of 2020, T.P.C. was an inpatient at [omitted for publication] mental health facility [omitted for publication]. FIFTH CCO HEARING DATES: MAY 3, 4, 5, 6, 2021 [ 19 ] On January 13, 2021, the Director ’s CCO Application (CEIS 24) was scheduled for hearing on May 3, 4, 5 and 6, 2021, with a Pre-hearing Conference on April 9, 2021. On April 9, 2021, Mr. Van Delft advised the court he had not had any contact with T.P.C. since the September 4, 2019, hearing date.

Mr. Van Delft advised the court he had left a number of messages for T.P.C. to call him. T.P.C.’s retainer had expired, the telephone number Mr. Van Delft had for T.P.C. had been disconnected. Mr. Van Delft says his efforts to reach his client through T.P.C.’s mother, father and brother were fruitless. Mr. Van Delft was at a loss as to how to obtain instructions from T.P.C. Judge Mengering granted Mr. Van Delft’s application to be removed as T.P.C.’s counsel of record. [ 20 ] G.A.H. did not appear at the May 2021 CCO Hearing in person, or by counsel or agent.

On May 3, 2021, T.P.C. appeared at the commencement of the CCO Hearing by MS Teams. He made an oral application for an adjournment of the CCO Hearing as he was without legal counsel. The Director vigorously opposed this fifth adjournment of the CCO Hearing. T.P.C. advised the court that he had been trying diligently to contact his lawyer, which some of his support workers [omitted for publication] confirmed. Judge Brecknell granted T.P.C.’s application and adjourned the matter to June 23, 2021, to fix a new CCO Hearing date. Judge Brecknell made it peremptory that T.P.C. appear at his next hearing date in person.

The social workers provided T.P.C. with a copy of the affidavits upon which the Director intended to rely at the hearing (i.e. SW Carifelle’s April 28, 2021 Affidavit (Exhibit 1) and GSW Leung’s April 28, 2021 Affidavit (Exhibit 3)). [ 21 ] For two weeks in the spring of 2021, T.P.C. attended the [omitted for publication]; he was also hospitalized for brief periods during this time. [ 22 ] On June 23, 2021, this matter came before Judge Galbraith to fix a new date for a four-day hearing of the Director ’s CCO Application (CEIS 24). On that day, Mr.

Ian Henderson appeared as T.P.C.’s newly appointed counsel for T.P.C. SIXTH CCO HEARING DATES: JANUARY 31, FEBRUARY 1, 2, 3, 2022 [ 23 ] On June 23, 2021, Judge Galbraith ordered the Judicial Case Manager to reschedule the CCO Hearing (CEIS 24) for four days. On November 4, 2021, the Judicial Case Manager scheduled the CCO Hearing for January 31, February 1, 2 and 3, 2022, with Pre-

hearing Conferences on November 24, 2021, January 7 and January 25, 2022. On November 24, 2021, Mr. I. Henderson appeared before Judge Galbraith on behalf of T.P.C. and Ms. Surcess appeared on behalf of the Director . The Pre-trial Conference was adjourned to January 25, 2022. [ 24 ] On January 25, 2022, Mr. Henderson appeared on behalf of T.P.C. He confirmed that T.P.C. was ready to proceed to hearing on the January 31, 2022, assize. The Director confirmed that it was relying on the affidavits of social worker Sherry Carifelle and guardianship social worker Donna Leung, both of which were provided to Mr.

Henderson electronically. The Director had given T.P.C. physical copies of these two affidavits at the May 3, 2021, CCO Hearing date. As the January 31, 2022, assize was the sixth hearing date, I advised counsel this matter had priority over all other files scheduled for that assize. [ 25 ] On January 31, 2022, the first day of the sixth hearing date, T.P.C. did not appear in person. He connected to the court by MS Teams with the assistance of Psychiatric Registered Nurse Smith. T.P.C. and PRN Smith were sitting in a borrowed office in the [omitted for publication] General Hospital.

T.P.C.’s reasons for failing to attend the CCO Hearing in person were unclear. T.P.C. mistakenly believed the CCO Hearing might proceed virtually as a result of the outbreak of the Omicron variant of the COVID-19 virus.

I note, however, that the CCO Hearing dates were confirmed at the January 25, 2022, Pre-trial Conference. [ 26 ] Much of the morning session of the January 31, 2022, CCO Hearing date was spent with Director ’s counsel, MCFD social workers and the court registry staff trying to facilitate T.P.C. appearing remotely from the [omitted for publication] Court House or [omitted for publication] MCFD Office.

T.P.C. agreed to take whatever flight the Director could arrange or to participate later that afternoon by telephone from the [omitted for publication] MCFD office, provided the social workers could find him a suitable support person. Ultimately, the social workers arranged to fly T.P.C. from [omitted for publication] to [omitted for publication] to [omitted for publication], where an assistant social worker would meet the plane and drive T.P.C. to [omitted for publication] so he could attend the hearing in person on February 2, 2022.

T.P.C. was unable to supply his own telephone, or computer, or private space, or support person. It fell to the social workers to do whatever was necessary to secure T.P.C.’s attendance at the CCO Hearing, either in in person or remotely. Ultimately, I adjourned the CCO Hearing until February 2, 2022, to give the Director an opportunity to arrange for T.P.C. to travel [omitted for publication], BC, to attend the hearing in person. [ 27 ] In 2022, T.P.C. had two social workers (“SW”): SW Joanne Bowden in [omitted for publication] and SW Laurel Hilton [omitted for publication].

SW Hilton became concerned that T.P.C. was not taking the steps necessary to arrange to attend the upcoming CCO Hearing starting on January 31, 2022. She was unable to reach him by telephone, so SW Hilton attended at T.P.C.’s residence in person a number of times between January 24 and 28, 2022, to confirm he had arranged his travel to [omitted for publication]. SW Bowden also attempted to reach T.P.C. through his brothers, mother and father, albeit unsuccessfully. Finally, SW Hilton was able to connect with T.P.C. on the afternoon of Friday, January 28, 2022.

She told T.P.C. he had to make arrangements with his [omitted for publication] social worker to fly to [omitted for publication] to attend the upcoming hearing. T.P.C. was unable to make these arrangements in the time remaining. SEVENTH CCO HEARING DATES: OCTOBER 3, 4, 2022 CONTINUATION [ 28 ] Because the CCO Hearing could not proceed on January 31 and February 1, 2022, due to T.P.C.’s absence, it did not complete in the time allotted. The CCO Hearing had to be scheduled to continue on the October 3, 4, 5, 6, 2022, assize.

The hearing continued on October 3, 2022, without incident and completed on October 4, 2022. [ 29 ] At the end of the hearing, I reserved my decision. These are my reasons for judgment. POSITIONS OF THE PARTIES ON THE DIRECTOR’S APPLICATION [ 30 ] On October 18, 2018, G.A.H. provided her written consent to the Director ’s application for a Continuing Custody Order pursuant to s. 49(5) (

a) of the CFCSA . Whether she still consents to the CCO is uncertain. What is certain is that G.A.H. last appeared in court in these proceedings on December 19, 2018. By the second hearing date, she was no longer represented by counsel. G.A.H. has not seen A.M.C. for years. [ 31 ] T.P.C. seeks an order that A.M.C. be placed in his care, which he acknowledges would require a transitional period in which he increases the length and time of his access visits with A.M.C. and exercises unsupervised access.

As a lesser alternative, T.P.C. asks the court to consider a “last chance” order, pursuant to s. 49(7) of the CFCSA , that A.M.C. remain in the temporary custody of the Director for a period of six months to allow T.P.C. time to demonstrate he has the requisite parenting capacity. If the court rejects both these options and grants the Director ’s CCO Application, T.P.C. asks that he continue to have access to A.M.C. pursuant to s. 56 of the CFCSA . [ 32 ] The Director seeks an order that A.M.C. be placed in the continuing care of the Director .

In its Plan of Care filed October 6, 2017, the Director states its overall goal for A.M.C. is as follows: . . . PLAN OF CARE FOR CHILD The overall goal of the plan of care for the child is as follows: Pursuant to section 49(5) (

a) of the Child, Family and Community Services Act, the Director is seeking a Continuing Custody Order, that the child, A.M.C. be placed in the continuing custody of the Director and a permanency plan be developed. . . . [ 33 ] The Director ’s plan is to register A.M.C. for adoption and “search for out of care options.”

[ 34 ] The Director opposes a last chance order under s. 49(7) (

c) of the CFCSA , or an order granting T.P.C. post-CCO access to A.M.C. pursuant to s. 56 . [ 35 ] I have set out below the relevant legislative provisions for the parties’ ease of reference. LEGISLATIVE FRAMEWORK [ 36 ] The guiding principles of the CFCSA are set out in s. 2 : 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; . . . (

g) decisions relating to children should be made and implemented in a timely manner. [ 37 ] Clearly, the safety and well-being of a child are the paramount considerations: see S.(B.) v. British Columbia (Director of Child, Family and Community Services) , [1999] B.C.J. No. 162 (S.C.) ; and B.(C.M.) v. British Columbia (Ministry for Families and Children) , 2000 BCSC 774 . [ 38 ]

Section 4 of the CFCSA lists seven factors relevant to a child’s best interest: Best interests of child 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. [ 39 ] The CFCSA identifies 12 circumstances in which a child needs protection: When protection is needed 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 (

i) the parent’s conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides;

(

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; and (

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. [ 40 ] A number of these factors were at play when the Director removed A.M.C. at birth. In the support of its application for a CCO, the Director relies only on 3(1)(h). The Director submits the circumstances giving rise to A.M.C. needing protection are the same now as they were at the time of removal: “ the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care.” [ 41 ]

Section 40 of the CFCSA governs protection hearing. It reads in relevant part: Protection hearing 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. [ 42 ] If the court determines the child needs protection, then it must proceed under s. 41 to determine in whose custody the child will reside and under what conditions. It is at this stage the court considers the child’s best interests as set out in s. 4 of the CFCSA .

Section 41 states: Orders made at protection hearing 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 apparently entitled to custody 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 a 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.

(1.1) When an order is made under subsection (1) (

b) or (c), the court may order that on the expiry of the order under subsection (1) (

b) or (

c) the child (

a) be returned to the parent, and (

b) be under the director's supervision for a specified period of up to 6 months.

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

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

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, (

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

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.

(2.1) If an order was made under

section 33.2 (2), the child has not been removed since that order was made and the court finds that the

child needs protection, the court must order that the director supervise the child's care for a specified period of up to 6 months.

(3) The court may attach to an order under this

section any terms or conditions recommended by the director to implement a plan of care. Content of supervision orders 41.1 The court may attach to a supervision order terms and conditions recommended by the director to implement the plan of care, including (

a) services for the child's parent or another person in the child's home, (

b) daycare or respite care, (

c) the director's right to visit the child, and (

d) the requirement that the director remove the child if a person does not comply with one or more specified terms or conditions of the order. [ 43 ] Section 49(1) of the CFCSA governs continuing custody hearings and orders. It states: Continuing custody and hearing orders 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.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearing must be served as follows: (

a) on the child, if 12 years of age or over; (

b) on each parent; (

c) if the child is a First Nation child, on a designated representative of the First Nation; (c.1) if the child is a Nis g a'a child, on a designated representative of the Nis g a'a Lisims Government; (c.2) if the child is a Treaty First Nation child, on a designated representative of the Treaty First Nation; (

d) if the child is not a First Nation child, a Nis g a'a child nor a Treaty First Nation child but is an Indigenous child, on a designated representative of another Indigenous community that has been identified by (

i) the child, if 12 years of age or over, or (ii) the parent, if the child is under 12 years of age; (d.1) any person who has been made a party under section 39 (4); (d.2) any person who has custody of the child under section 41 (1) (b), 42.2 (4) (c), 54.01 (9) (

b) or subsection (7) (

b) of this section; (

e) on the Public Guardian and Trustee, if appointed as the child's property guardian under

section 58 .

(3) If a person referred to in subsection (2) (

b) to (d.2) appears at the commencement of the continuing custody hearing, that person is entitled (

a) to be a party at the hearing, and (

b) to notice of a hearing under

section 42.2 , 54 , 56 or 57 and, if the person appears at the commencement of the hearing, to be a party at that hearing.

(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.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care 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. EVIDENCE [ 44 ] At the CCO Hearing on February 2 and 3 and continuing on October 3 and 4, 2022, I received oral and documentary evidence and heard submissions from both parties. [ 45 ] On behalf of the Director , I heard oral and affidavit evidence from: a. Sherry Lynn Carifelle, social worker and delegate for the Director , speaking to her affidavit sworn April 28, 2021 (Exhibit 1).

Social Worker Carifelle was T.P.C.’s social worker in [omitted for publication], BC, from September 24, 2017, until she left her employment with MCFD on May 21, 2021. b. Joanne Louise Bowden, social worker and delegate for the Director , speaking to Exhibits 4 to 12 inclusive and Exhibit 14 (Reunification Vulnerability Assessment). Social Worker Bowden became T.P.C.’s social worker in [omitted for publication] after SW Carifelle left MCFD. c. Donna Yet Ping Leung, guardianship social worker and delegate for the Director , speaking to her affidavit sworn April 28, 2021 (Exhibit 3).

GSW Leung was A.M.C.’s social worker from September 15, 2016, until September 2021; d. Kelly Pomeroy, guardianship social worker (“GSW”) for A.M.C. and delegate of the Director , speaking to Exhibit 13 (A.M.C.’s Individual Education Plan at [omitted for publication] Elementary School). Guardianship Social Worker Pomeroy has been A.M.C.’s guardianship social worker since September 2021. [ 46 ] The documentation the Director filed is voluminous, in excess of 2,500 pages, and included: a. MCFD originating Authorization and Service Plan commencing September 25, 2016, and ending December 31, 2016; b.

MCFD’s Vulnerability Assessments and Reunification Vulnerability Assessments with respect to A.M.C.; c. Axis Family Resources supervised access monthly reports from September 1, 2016, to April 30, 2018; d. MCFD social workers’ notes, reports and emails, with respect to G.A.H. and/or T.P.C.’s supervised access visits with A.M.C.; e. MCFD Supervised Access Visits Reports with respect to T.P.C.’s visits with A.M.C. in 2022; f. RCMP records with respect to T.P.C. and G.A.H.’s involvement with the criminal justice system, released January 6, 2018; g.

RCMP General Occurrence Reports with respect to T.P.C. and G.A.H.’s involvement with the criminal justice system, released August 19, 2016 and June 10, 2019; h. North Cariboo Aboriginal Family Planning Society notes; i. MCFD Family Plan Meeting notes; j. MCFD Plans of Care developed at a Family Group Conference; k. MCFD Needs Assessments for T.P.C., G.A.H. and A.M.C.; l. MCFD Referrals for Support Services for G.A.H. and T.P.C.; m. Bruce Landon’s Specialized Counselling and Assessment Reports with respect to T.P.C.; n. MCFD Mediation Agreement dated December 13, 2017;

o. MCFD access schedules for T.P.C.’s visits with A.M.C.; p. T.P.C.’s medical records from the [omitted for publication] Clinic in [omitted for publication], BC; q. T.P.C.’s medical records from the [omitted for publication] Hospital in [omitted for publication], BC; r. T.P.C.’s medical records from the Northern Health Authority Mental health and Addiction Emergency Services in [omitted forpublication] BC; s. Correspondence from [omitted for publication] Family Services concerning T.P.C.; t. T.P.C.’s medical records from [omitted for publication] General Hospital; u.

T.P.C.’s medical records from [omitted for publication] Health, Mental Health & Addictions, [omitted for publication]; v. Dr. Bell’s clinical notes on T.P.C.; w. Reports, notes, questionnaires and Individualized Family Service Plan from the [omitted for publication] & District ChildDevelopment Centre with respect to A.M.C.; x. MCFD Foster Care/Monthly Report from with respect to A.M.C.; y. Northern Health Speech-Language Pathology Consultation Report with respect to A.M.C. dated September 10, 2019; NorthernHealth Speech-Language Pathology Assessment Report with respect to A.M.C. dated February 3, 2021; and z.

A.M.C. Individual Education Plan at [omitted for publication] Elementary School 2021-2022. [47] I heard from T.P.C. on his own behalf. He tendered no documents to be entered as exhibits. CREDIBILITY AND RELIABILITY [48] Many of the salient facts in this trial are unopposed or not seriously contested. Still, there are some pieces of evidence whichrequire me to assess the witness’ reliability and credibility. This exercise engages the oft-cited test described in Faryna v. Chorny, (BCCA), at p. 357, wherein Mr. Justice O’Halloran for British Columbia Court of Appeal stated: . . .

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of theprobabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. . . . [49] In this case, I am satisfied that all the witnesses who testified before me were attempting to be truthful. The evidence of theDirector’s witnesses was generally corroborated with business records that have been marked as exhibits in these proceedings. I foundT.P.C. remarkably candid, however, he did not always recall dates and times with precision.

This is not surprising given the passage oftime. Where his evidence differs from the business records, I prefer the evidence of the latter. BACKGROUND HISTORY [50] A.M.C. was born [omitted for publication]. She is now six years old. She is the first and only child of G.A.H., born [omitted forpublication] and T.P.C., born [omitted for publication]. [51] G.A.H. is the daughter of K.H. and N.R.L. N.R.L. had extensive history with the Director. On August 10, 2015, the Directorremoved G.A.H. from her mother’s care. G.A.H. was experiencing mental-health issues and went on and off her medication.

G.A.H.became violent towards her mother. She was placed in a foster home. On March 7, 2016, the Director returned G.A.H. to her mother’scare because G.A.H. kept running away from her foster home. [52] MCFD social workers learned of G.A.H.’s pregnancy with A.M.C. on June 20, 2016, and began to provide G.A.H. with supportservices.

Upon conducting a vulnerability assessment with respect to G.A.H., MCFD social workers rated the vulnerability of the yet-to-be born A.M.C. as high. [53] The Director removed A.M.C. from G.A.H. and T.P.C.’s care at birth on [omitted for publication] 2016, “as there was not anapproved plan in place for someone who was willing to supervise [G.A.H.] and her baby at all times”.

The Director had concerns aboutG.A.H.’s mental stability, domestic violence, substance misuse and history of sexually abusing her sister on [omitted for publication].MCFD social workers advised G.A.H. her parenting time with her baby would have to be supervised at all times and that N.R.L. was notan approved supervisor given her extensive and current history with MCFD. [54] While in the Director’s care, A.M.C. resided in one of two MCFD foster homes. For the first seven months, A.M.C. lived withN.D. and K.V., who were G.A.H.’s former foster parents.

On August 10, 2017, A.M.C. was placed in S.L.’s foster care in [omitted forpublication], BC, where she continues to reside to this day. [55] The Director facilitated G.A.H. and T.P.C.’s supervised access to A.M.C. through the Axis Family Services in [omitted forpublication], BC. Neither G.A.H. nor T.P.C. have ever had any unsupervised visits or parenting time with A.M.C. They have never hadA.M.C. in their care overnight. [56] After the Director removed A.M.C. from her care, G.A.H. attempted to engage in parenting programs and support services.

Shecompleted the Incredible Years, Healthy Relationships and Circle of Security Parenting programs. She attended almost all her supervisedvisits with A.M.C. Initially, she sought to have A.M.C. returned to her care, but that plan disintegrated when G.A.H.’s life unravelled.G.A.H. stopped taking her medications; she succumbed to her mental illness and addictions. Eventually, G.A.H. became homeless and

fed herself from dumpsters. [ 57 ] By October 2017, G.A.H. had stopped attending her access visits with A.M.C. On December 13, 2017, G.A.H. consented in writing to the Director ’s CCO Application (CEIS 32). On January 10, 2018, G.A.H. withdrew her consent for the Director ’s CCO Application (CEIS 37) in support of T.P.C.’s application for custody of A.M.C. [ 58 ] On October 18, 2018, G.A.H. again provided her written consent to the Director ’s CCO Application (CEIS 44).

Although she continued to vacillate in her plans and intentions with respect to A.M.C., G.A.H. never formally withdrew her consent, nor did she attend any access visits with A.M.C. I understand G.A.H. last saw A.M.C. sometime in 2019. [ 59 ] Although MCFD social workers kept her apprised of these proceedings, G.A.H. stopped participating in the CCO Hearing process. She last appeared in court in December 2018. She told GSW Leung that she was consenting to the CCO Application in order to give A.M.C. the proper care she deserves.

G.A.H. declined access visits because it would be too confusing for A.M.C. if her mother could not be consistent with those visits. When SW Carifelle provided her with the 2020 CCO Hearing Scheduling Notice, G.A.H. told her, “I don’t want to talk about it.” [ 60 ] G.A.H. was recently before the [omitted for publication] Provincial Court with respect to criminal charges against her for theft of merchandise under $5,000, on Information 28800-1. The Undertaking G.A.H. entered into with a police officer on February 23, 2022, indicates she is of “no fixed address”, which I infer to mean that G.A.H. is still homeless.

A.M.C. [ 61 ] G.A.H. was only 17 years old when A.M.C. was born. G.A.H. had limited prenatal care and used marijuana and crystal methamphetamines during her pregnancy with A.M.C. She was taking Seroquel for her mental illness. G.A.H. disclosed to CDC Infant Development Consultant Penny Sterling that in her last trimester, T.P.C. punched her in the stomach. Not unexpectedly, A.M.C. was not a healthy infant. She had a low birth weight and experienced chronic chest and ear infections, colds and digestive issues. When she was three months old, A.M.C. was hospitalized for six days due to a respiratory virus.

Later A.M.C. manifested signs of neurodevelopmental disorders that became more pronounced as she got older. [ 62 ] When A.M.C. was five years old, she was diagnosed with autism spectrum disorder (“ASD”), global delays and coordination disorder. She has delays in her speech and language and communication with others. She has difficulty with coordination and struggles with physical tasks and activities requiring fine or gross motor skills.

A.M.C. is susceptible for Attention Deficit Disorder and Hyper Activity Disorder (“ADHD”) and other learning disorders. [ 63 ] Each morning A.M.C. catches the bus to [omitted for publication] Elementary School in [omitted for publication], where she attends grade 1 full time. She likes to read, particularly the Disney classic “Frozen” and “Peppa Pig” tales. I am told A.M.C. is also very creative. She loves art, drawing, colouring, puzzles, unicorns and the colour pink. She loves riding her bike.

A.M.C. attends [omitted for publication] Consulting and Behavioural Interventionist Agency (“[omitted for publication] Consulting”) twice weekly. [omitted for publication] Consulting works with A.M.C. to improve her reading, math, language, motor skills, self-regulation and coping with transitions. [ 64 ] A.M.C.’s 2021-2022 Individual Education Plan (Exhibit 13) indicates her many strengths including advocating for herself.

However, when A.M.C. becomes “dysregulate she is unable to communicate her needs and stands ‘stuck’ in one spot for slightly longer.” [ 65 ] S.L. has been A.M.C.’s primary caregiver since A.M.C. was placed in her care at seven months old. S.L. has two other children in her care: an 18-year-old adopted son and a foster child who is one year and three months old. GSW Pomeroy became A.M.C.’s guardianship social worker in September 2021, following GSW Leung’s departure. GSW Pomeroy advises the court that S.L. has had many years in fostering children. S.L. provides a supportive, nurturing and loving home for A.M.C.

S.L. is experienced in caring for children with ASD and provides A.M.C. with the structure and stability required for A.M.C. to thrive. S.L. works closely with MCFD social workers and [omitted for publication] Consulting on A.M.C.’s behalf. She ensures A.M.C. receives appropriate medical, dental and optical care. S.L. is a strong advocate for A.M.C. She has also facilitated T.P.C.’s access visits with A.M.C., both in person and electronically. [ 66 ] In the Director’s 2021 Care Plan for A.M.C., GSW Leung indicated: a. A.M.C. had not seen her mother since the fall of 2019; b.

G.A.H. continues to struggle with mental illness, addictions and homelessness; c. The Director cancelled T.P.C.’s visits with A.M.C. because of COVID-19 concerns; d. In April 2020, T.P.C. entered a treatment program and did not have contact with A.M.C. again until February 2021; e. MCFD social workers had explored having A.M.C. reside [omitted for publication] with T.P.C.’s family members. Ultimately, MCFD social workers considered T.P.C.’s brother G.C. and his girlfriend “J.” unsuitable because of their immaturity, excessive marijuana use and lack of knowledge and understanding of A.M.C.’s special needs.

T.P.C.’s father P.C. was unsuitable because of his drinking and use of physical discipline; f. A.M.C. had scored a very high risk for autism at her last CDC team assessment and was referred to the Northern Health Assessment Network for autism and Complex Developmental Behavioral Conditions; g. A.M.C. attends the CDC and sees an occupational therapist and speech and language therapist; and h. GSW Leung expresses concern for A.M.C.’s excessive attachment to and dependence on her foster parent S.L.

T.P.C. [ 67 ] T.P.C. was born in Kamloops, BC. His mother is A.T. (born [omitted for publication]) and his father is P.C. T.P.C. is the second of three children, all boys: T.C. born [omitted for publication], T.P.C. born [omitted for publication], and G.C. born [omitted for publication]. When he was five years old, T.P.C. moved with his family to Kamloops, BC, where he spent most of his childhood. [ 68 ] When he was 14 years old, T.P.C. left his parents’ home after he had been sexually assaulted. On February 11, 2010, he went to live with a family friend, C.F., under a Voluntary Care Agreement.

On August 26, 2011, T.P.C. was removed from his parents’ care and on November 3, 2011, he was placed in the continuing care of the Director . T.P.C. remained living with his foster parent C.F. until he “aged out” at 19 in 2013. T.P.C. and C.F. continued to keep in touch after T.P.C. left her care, until she died in 2015 at the age of 81. [ 69 ] T.P.C. speaks positively of his life with his foster parent C.F.

When he graduated from high school, T.P.C. was healthy, athletic, drug free and with the exception of having to manage his ADHD, mentally healthy. [ 70 ] When he turned 19, having nowhere else to go, T.P.C. went to live with his biological family. First he went to live with his father P.C., who was an alcoholic. This living arrangement did not work out well. A couple of months later, T.P.C. went to live with his mother A.T. and her new partner K.G. Unfortunately, both were drug users and K.G. was a drug dealer.

While living with his mother and K.G, T.P.C. also began to use drugs and his former pro-social lifestyle disintegrated. He became involved in the criminal justice system and was charged and convicted of a number of offences. [ 71 ] T.P.C. moved to [omitted for publication] with his mother and K.G when he was 20-21 years old. Here, he met and began dating G.A.H., who was 16 years old and in foster care. G.A.H. introduced T.P.C. to crystal methamphetamine, to which he became instantly addicted. Shortly after they began dating, G.A.H. became pregnant.

T.P.C.’s drug use and involvement in the criminal justice system persisted. On June 28, 2016, T.P.C. was convicted after guilty pleas to four offences that had occurred in [omitted for publication] in early 2016, and two in Kamloops that occurred in 2014, to which he also pled guilty, and received a brief jail sentence and probation. [ 72 ] T.P.C. left [omitted for publication] briefly to spend time with his brother G.C. [omitted for publication]. When G.A.H. told him she was pregnant, T.P.C. decided to return to [omitted for publication] to take care of G.A.H. and be a father to their child.

When he returned to [omitted for publication], T.P.C. and G.A.H. moved in together in the [omitted for publication] . This period of cohabitation lasted only a few months. G.A.H. and T.P.C. separated, after which A.M.C. was born. Hence, T.P.C. was not a presumptive guardian of A.M.C. under s. 39 of the Family Law Act. [ 73 ] G.A.H. and T.P.C. had a tumultuous relationship, rife with substance misuse and domestic violence. The family violence between G.A.H. and T.P.C. continued despite G.A.H.’s pregnancy and after A.M.C.’s birth.

One violent incident occurred on September 12, 2016, four days before A.M.C. was born. This altercation resulted in the police arresting T.P.C. for assaulting G.A.H. and vice versa . They were placed on reciprocating restraining orders. Ultimately, the Crown did not proceed with charges. On October 29, 2016, the police again arrested G.A.H. and T.P.C. for assaulting each other. Once again, the Crown declined to approve charges. T.P.C. was never tried or convicted for any violent offences against G.A.H. or anyone else.

The last offence for which he was convicted was for breaching his recognizance of bail on May 31, 2016. [ 74 ] On October 31, 2016, T.P.C.’s stepfather K.G. died of a drug overdose. [ 75 ] At the time of A.M.C.’s birth, T.P.C. was suffering from depression, substance misuse, suicidal ideations and actual suicide attempts.

T.P.C. acknowledges he was unable to play a meaningful role in A.M.C.’s life because he thought “getting high was more important.” The information provided by the Kamloops RCMP to SW Brenner on August 19, 2016, indicates that between 2014 to 2015, T.P.C. had a significant history of suicidal ideation and suicidal attempts requiring police intervention. [ 76 ] In late 2016, Sherry Carifelle became T.P.C.’s social worker. She arranged for T.P.C. to access a number of services from the [omitted for publication] Adult Mental Health Program. On December 15, 2016, SW Carifelle referred T.P.C. to: (

a) Bruce Landon, a registered clinical counsellor with the Specialized Counselling Resources Society (“SCRS”); (

b) the Circle of Security Program with AXIS Family Social Worker (“FSW”) Deb Burton; (

c) the Aboriginal Infant Development Program Worker (“AIDP Worker”) Lisa Lightening at the North Cariboo Aboriginal Family Program Society; and (

d) the Child and Youth Mental Health Worker (“CYMH Worker”) Megan Klotz. [ 77 ] Despite these wrap-around support services, T.P.C.’s drug use continued and his mental health deteriorated. He was profoundly depressed and plagued by suicidal and self-harm ideation. His residential insecurity exacerbated his anxiety. He did not attend his counselling sessions with Bruce Landon and began missing his access visits with A.M.C. Nevertheless, T.P.C.’s desire to have A.M.C. in his care never abated. [ 78 ] On May 8, 2017, SCRS counsellor Bruce Landon sent a letter to Dr.

Obanye recommending he refer T.P.C. to Mental Health and Addictions for a psychiatric assessment and intervention, or detox in an addictions treatment centre. At the end of April 2017, T.P.C. attended [omitted for publication] Detox arranged by his Probation Officer Rebecca Leblanc. After two days, T.P.C. left the facility. T.P.C. admitted to daily heroin use to the point of overdose. He suffered seizures and frequented the hospital emergency department for suicidal ideation and depression.

According to the medical records produced by the [omitted for publication] Hospital in [omitted for publication], T.P.C. was brought to its emergency room on 12 different occasions between September 19, 2016, and August 1, 2017, regarding suicidal threats to harm himself and drug abuse. [ 79 ] In his discharge

summary dated August 4, 2017, Dr. Hezekiah Agboji diagnosed T.P.C. as suffering from: a. Methamphetamine and THC ( tetrahydrocannabinol in cannabis) substance use disorder with dependence and secondary mental/behavioural disorder; b. Borderline/antisocial personality with poor concept of responsibility on the background of immaturity; and

c. History of deliberate self-harm, blaming restriction of access to his daughter in the Director ’s care. [ 80 ] Dr. Agboji noted that T.P.C. discharged himself against medical advice and states: [T.P.C.] never follows through with the plan for him to engage with Addiction Services or to go to the inpatient detox. He discharged himself from Inpatient Detox Facility at UHNBC, lasting less than 49 hours the last time.

He is aware of the available support in the community and that a psychiatric follow up appointment could be arranged as needed. [ 81 ] On August 15, 2017, T.P.C.’s older brother T.C. died of a fentanyl overdose. This was a wakeup call for T.P.C.’s mother A.T., who decided to quit using substances. She moved to [omitted for publication] and joined the congregation of the Jehovah’s Witnesses.

Although early on she assisted T.P.C. with attending his access visits with A.M.C., A.T. is no longer prepared to take on an active role in caring for A.M.C. [ 82 ] On August 24, 2017, the day after his brother’s funeral, T.P.C. had an access visit with A.M.C. at MCFD Office – his first in eight months. He felt overwhelmed by the prospect and brought a friend to support him in attending the visit.

MCFD social workers refused to allow T.P.C.’s friend to participate in the visit. [ 83 ] Whereas in the fall of 2017, T.P.C. began to renew his access visits with A.M.C., G.A.H. began missing her visits. [ 84 ] T.P.C. met and began dating H.L. in September 2017. H.L. had a three-year old son, M.L., with whom the Director was also involved. At some point T.P.C. and H.L. began cohabitating. Their relationship ended in the early 2018. T.P.C. said that H.L. could not deal with the fact that he was also involved with the Director and thought it was best to part ways.

H.L. helped T.P.C. maintain his sobriety. [ 85 ] On December 13, 2017, after mediation, G.A.H. consented in writing to A.M.C. remaining in the continuing care of the Director . T.P.C. was critical of G.A.H.’s willingness to consent to the Director ’s CCO Application. G.A.H. withdrew her consent to the CCO Application on January 10, 2018, when T.P.C. sought to have A.M.C. placed in his care. To that end, T.P.C. consented to the Director ’s request for RCMP disclosure and agreed to attend and participate in mental health and addictions counselling with [omitted for publication] Family Services.

He promised to attend all scheduled access visits with A.M.C., barring some extraordinary circumstance. The following day, on December 14, 2017, T.P.C. signed a Family Plan to address his mental health and coping ability, his parenting skills and his alcohol, drug and substance use. [ 86 ] In late 2017 and early 2018, while living with H.L., T.P.C. began to address his mental health and addiction concerns and connect to community resources and parent groups.

Specifically, he agreed to participate in counselling with SCRS Bruce Landon, the Support and Recovery Group through the [omitted for publication] Mental Health and Addiction Services, attending Narcotics Anonymous (“NA”) and participating with H.L. in [omitted for publication] Family Services.

During this three to four month period, T.P.C. regularly attended his access visits with A.M.C. [ 87 ] T.P.C. did engage with [omitted for publication] Family Services from December 14, 2017, until April 23, 2018. [omitted for publication]Family Services connected T.P.C. to community resources to address his mental health and addiction and enrolled him in budgeting and parenting programs. [ 88 ] By March 2018, T.P.C. and H.L.’s relationship had ended and with it, T.P.C.’s commitment to rehabilitation. T.P.C. began using drugs and missing his access visits with A.M.C.

T.P.C. tried to attend the Prince George Detox, but it had no beds available. Family Services Family Support Worker Erin Richardson attended T.P.C.’s home and found him in dirty clothes, dishevelled, restless, rocking back and forth, speaking very loudly and making no eye contact.

T.P.C. admitted to using "crystal meth and anything else he can get his hands on.” When he called Prince George Detox and was told that there were no beds available, T.P.C. screamed, "no one gives a fuck about me,” exited the car and shouted "I might as well go shank myself.” [ 89 ] T.P.C.’s drug use persisted and his mental health deteriorated. Social Worker Sherry Carifelle urged T.P.C. to attend a residential treatment facility.

T.P.C. said he was reluctant to attend a residential treatment facility because it would interrupt his supervised access visits with A.M.C., which in turn would undermine his objective of having A.M.C. placed in his care. [ 90 ] In 2018, T.P.C.’s attendance at his scheduled access visits with A.M.C. was sporadic. In January 2017, he attended only one of seven access visits with A.M.C.; one out of four visits in February 2017; two in four in March 2017.

T.P.C. had no visits with A.M.C. from April 2018, until August 23, 2018. [ 91 ] On April 23, 2018, T.P.C. was accepted at Baldy Hughes, a remote men’s long-term addictions recovery centre and therapeutic community situated on the Blackwell Forest Service Road in backwoods of Prince George, BC. This was a 12-month commitment during which he could not have any access visits with A.M.C. According to the Psychiatric Assessment of Vancouver Coastal Health, T.P.C. resided at Baldy Hughes for only five days before he began experiencing seizures.

He was rushed to the University Hospital of Northern British Columbia (“UHNBC”) in Prince George. T.P.C. was discharged at the end of the day, but no one from Baldy Hughes was available to pick him up. T.P.C. ended up on the streets of Prince George for the night and relapsed into using drugs. Baldy Hughes refused to permit T.P.C. to return to its facility before undergoing detox. [ 92 ] T.P.C. attended Prince George Detox for three weeks. Upon his discharge, T.P.C. decided not to return to Baldy Hughes.

Instead, he chose to attend [omitted for publication] Recovery Society facility in [omitted for publication], which was closer to his family who had since relocated from [omitted or publication to [omitted for publication]. [ 93 ] T.P.C. resided at the [omitted for publication] treatment facility for nine days. He began experiencing auditory and visual hallucinations. He was transported to the psychiatric ward in the Royal Columbian Hospital in New Westminster on May 18, 2018, where he remained until June 27, 2018.

The staff at the Royal Columbian Hospital arranged for T.P.C. to be placed on the waitlist for the King Haven Treatment Centre in Abbotsford. In the interim, T.P.C. was discharged from the hospital and he went to live with his mother in a travel trailer [omitted for publication]. He never did attend the King Haven facility.

[ 94 ] When he arrived in [omitted for publication], T.P.C. was assessed by its acute mental health team. The teams’ psychiatric assessment carried out between June 11, 2018, and June 27, 2018, indicates that at the time of his discharge from the Royal Columbian Hospital, T.P.C. was prescribed Fluoxetine, Suboxone, Quetiapine, Gabapentin, Prazosin and Tamsulosin. T.P.C. reported ongoing visual and somatic hallucinations of being infested by bugs.

He experienced multiple derogatory voices in his head that made fun of him, degraded him and often told him to harm himself. [ 95 ] In [omitted for publication], T.P.C. was supported as an outpatient by the Vancouver Island Health Intensive Case Management Team (“ICMT”).

Typically, T.P.C. engaged in weekly or biweekly visits with the ICMT nursing or outreach staff. [ 96 ] By July 4, 2018, T.P.C. was prescribed a potpourri of medications to manage his psychosis, depression, blood pressure, opiate dependency, seizures and anxiety. [ 97 ] On July 9, 2018, the RCMP brought T.P.C. to the [omitted for publication] General Hospital, when, after an argument with his mother, T.P.C. put a rope around his neck and threatened to hang himself. [ 98 ] From August 11-13, 2018, T.P.C. was hospitalized for pericarditis/pericardial effusion.

In her clinical note of September 4, 2018, psychiatrist Dr. Rachel Bell refers to T.P.C. as a 23-year old man who she had been “following along in the past few months re: unspecified psychosis and polysubstance abuse.” [ 99 ] On September 4, 2018, Dr. Bell met with T.P.C. She opined T.P.C. was doing reasonably well psychologically, with no relapse to psychosis, alcohol, opiate or methamphetamine use.

However, T.P.C. did use marijuana daily. [ 100 ] On November 8, 2018, SW Carifelle received a letter from T.P.C.’s Clinical Coordinator, Kate Hodgson, who provided the following update on T.P.C.’s medical history: . . . [T.P.C.] resided [omitted for publication] since he was transferred after an admission to Royal Columbian Hospital in Vancouver, British Columbia. [T.P.C.] was discharged from [omitted for publication] General Hospital on June 27, 2018, and has been followed as an outpatient by the Intensive Case Management Team (ICMT), usually engaging in weekly or biweekly visits with nursing or outreach staff, ICMT has been supporting [T.P.C.] In attending his weekly urine drug screens, monitoring mental health symptoms such as auditory hallucinations and depression, relapse prevention and support in finding fun sober ways to socialize, [T.P.C.] is followed by Dr.

Bell for unspecified psychosis and substance use disorder. [T.P.C.] is managed by a long acting injectable anti-psychotic medication, pallperidone. [T.P.C.]'s mood low as reflective of some situation issues regarding the current MCFD decision making around custody of his daughter, living in a small RV with his mother and not making too many friends [omitted for publication]. He has had occasional fleeting suicidal ideation.

He has had some medical challenges and was hospitalized for pericardian effusion in late August and was transferred to a higher level of care in Vancouver for a few days to stabilize. [T.P.C.] did have a recurrence of chest pain related to pericardial effusion in September but it resolved [omitted for publication]. He is followed by Dr. Takhar Internal Medicine in this regard. ICMT is working with [T.P.C.] to get him connected to general practitioner [omitted for publication] for better care coordination. Overall, [T.P.C.] functions well with support and psychiatric monitoring in place.

He has not relapsed since June 2018 and participates in recovery activities when reminded and assisted with transportation. [T.P.C.] is working with ICMT to apply for disability income. A.T. supports [T.P.C.] in daily living activities like reminding him to shower, do laundry, and buy groceries. . . . [ 101 ] The Director also arranged and financed T.P.C.’s and A.T.’s attendance at court in [omitted for publication] (December 3-5, 2018) in these CFCSA proceedings.

The Director also arranged and financed T.P.C. having one-hour visits with A.M.C. in [omitted for publication] on November 13, 14, 15, 2018, and again on December 3, 4, 5, 2018. These visits were supervised by Stephanie Shopa, the Social Program Officer Assistant, Practicum Student Tonja Belcher and Foster Parent S.L. On December 14, 2018, T.P.C. signed a Family Plan to address the Director ’s concerns with respect to his mental health, parenting skills and substance misuse. [ 102 ] On January 14, 2019, T.P.C. called the RCMP stating he was going to shoot himself and that he had access to firearms.

The RCMP apprehended T.P.C. under the Mental Health Act (“ MHA ”) and brought him to the [omitted for publication] General Hospital. T.P.C. told the emergency room physician he was going to slit his carotid artery. T.P.C. was certified by two physicians (Dr. Ricketson on January 14, 2019, and Dr. Andreae on January 15, 2019) and detained under the MHA. The [omitted for publication] Community Health (Vancouver Coastal Health) nursing psychiatric assessment team conducted an assessment of T.P.C. from January 15 to 25, 2019.

Trevor Logan, an ICMT registered nurse, wrote in the Acute Nursing Psychiatric Assessment: Patient was last discharged from this unit on 27 th June 2018, at that time he had been admitted with suicidal ideation coupled with psychosis, at that time he was threatening to jump off a ferry he had been triggered at that time by having to move home with his parents he had auditory hallucinations telling him to kill himself a long history of polysubstance abuse and previous diagnosis of ADHD, OCD, Borderline Personality Disorder and drug induced psychosis.

He has multiple attempts at suicide, including hanging, overdosing and cutting, and was followed by [omitted for publication] Mental Health when he lived there. He is followed by the ICMT here and has been seen by Dr. Bell in the past. [ 103 ] Upon his admission on January 14, 2019, T.P.C. was taking Suboxone, Prazosin, Gabapentin, Fluoxetine, Quetiapine, Paliperidone Palminate, Salbutamol, and Nicotine Gum.

While in the hospital, he was prescribed Lorazepam, Seroquel, Invega Sustenna, Tylenol, Trazodone and Loxapine. [ 104 ] The Director arranged, financed and facilitated T.P.C. having monthly visits with A.M.C. in [omitted for publication] in 2019. Typically, these visits were between one to three hours each for three consecutive days. The longest visit T.P.C. has ever had with A.M.C. was four hours (11:00 a.m. to 3:00 p.m.). Whatever length of time, T.P.C.’s visits with A.M.C. were always supervised. [ 105 ] Still, they were not without incident.

In February, T.P.C. went to [omitted for publication] Hospital emergency department for pneumonia and missed his access visit. On March 29, 2019, T.P.C. was evicted from his hotel room at the Travel Lodge. The hotel manager called the police to investigate T.P.C. allegedly assaulting a housekeeper with a soiled toilet plunger and threatening to kill her. The manager agreed not to press charges if T.P.C. packed up and left the hotel immediately. T.P.C. left the hotel and no charges ensued.

[ 106 ] In her April 28, 2021 Affidavit, SW Carifelle reported receiving 74 pages of disclosure from the RCMP on June 10, 2019, with respect to T.P.C., which show: a. T.P.C. was alleged to have assaulted a housekeeper at the Travelodge, while staying in [omitted for publication] to exercise access and go to court on March 29, 2019; b. T.P.C. was apprehended under the MHA on April 18, 2018, after self-reporting to the suicide hotline; c.

The RCMP assisted T.P.C. during several suicidal episodes Involving substances on February 14, 24, 25, April 10, 2018, including while he was residing at the [omitted for publication] Unit Emergency Short-Stay Treatment facility (“[omitted for publication]”); and d. T.P.C. reported suicidal ideation on March 29, 2018. [ 107 ] T.P.C.’s monthly visits with A.M.C. in 2019 were of varied success depending on his health concerns at the time. During his August and September 2019 visits with A.M.C., T.P.C. attended [omitted for publication] Hospital for severe migraines.

Despite having sought an adjournment of the September 2019 hearing dates because he had “turned his life around,” the FCPC Worksheet of August 21, 2019 (Exhibit 1; Exhibit “DD”) indicates T.P.C.’s August 13, 14, 15, 2019 visits were problematic. The supervisor noted T.P.C. needed to be coached to focus on A.M.C. at the pool and not his cell phone. The second visit was cancelled because of T.P.C.’s suspected drug use. On August 13, 2019, T.P.C.’s urine drug screens tested positive for amphetamine, methamphetamine, cannabinoids, ecstasy, opiates and buprenorphine.

In his October and November 2019 visits with A.M.C., T.P.C. was unwell because he forgot to bring his Suboxone medication with him from [omitted for publication]. Social Worker Carifelle writes in her April 28, 2021 Affidavit at para. 146: On October 30, 2019, [T.P.C.] was scheduled to have a visit from 11:00 am to 4:00 pm supervised by Keyoh Services. [T.P.C.] had not showered.

He began the visit by saying he had vomited all night and morning as he forgot his suboxone medication [omitted for publication]. [T.P.C.] was not playing or interacting with [A.M.C.]. [T.P.C.] had not stopped to change [A.M.C.] during his visit. The visit ended early due to [T.P.C.] feeling unwell as he did not have his medication. He did not bring any food for the visit. [T.P.C.] chose to smoke throughout the visit and he admitted to going for a beer the night before. [ 108 ] There are many times when T.P.C.’s visits with A.M.C. went well.

Sometimes T.P.C. and A.M.C. went to the park, where A.M.C. would play on the slide or trampoline and other playground equipment. Sometimes they would go to the pool; sometimes they played indoors at the supervisor’s access facilities. Other times, even when the visits were brief and uneventful, T.P.C. was not always attentive to A.M.C.’s needs and expectations. For example, occasionally T.P.C. smoked during these visits, although discouraged from doing so.

Other times, he forgot his shorts so he could not take A.M.C. to the pool as planned. [ 109 ] T.P.C. had two monthly visits with A.M.C. in early 2020 before the COVID-19 pandemic intervened. These visits in January and February 2020 were supervised by Axis Family Services. They were for two consecutive days and only one and one-half hours long. It is not clear to me why, in light of Judge Whyte’s order, T.P.C.’s access to A.M.C. was contracting rather than expanding. [ 110 ] T.P.C. had no in-person visits with A.M.C. Between March 2020 and February 2021.

Family Social Worker Donna Greenway reported that she tried to contact T.P.C. to make some arrangements for his continuing visits with A.M.C. remotely, but was unable to reach him by telephone. [ 111 ] Even if the COVID-19 pandemic had not interrupted his visits with A.M.C., for much of 2020, T.P.C. was inaccessible because his own mental health crises. On March 22, 2020, less than two weeks after his visit with A.M.C., T.P.C. was hospitalized for a psychotic relapse with suicidal ideation.

He was discharged on March 26, 2020, and readmitted on April 11, 2020, where he was an inpatient until April 23, 2020, discharged, and readmitted again on June 6, 2020, where he remained until July 4, 2020. [ 112 ] T.P.C.’s medical records from the [omitted for publication] Hospital and Mental Health and Substance Use confirm T.P.C. continued to suffer psychotic episodes with suicidal and homicidal ideation. Dr. Rachel Bell notes on June 12, 2020, that T.P.C. had numerous admissions to the hospital in the past four or five months for psychosis and thoughts of self-harm.

She reports T.P.C. had little insight into the correlation between his cannabis and methamphetamine use and his decompensation. Dr. Bell diagnosed T.P.C. with: (

a) methamphetamine use disorder; (b) “Cluster B personality traits; (

c) borderline personality traits; and (

d) schizoaffective disorder. She indicates in her July 10, 2020, medical report that upon discharge from the [omitted for publication] General Hospital on July 10, 2020, T.P.C. was prescribed Clozapine, Invega Sustenna, Quetiapine, Propranolol, Prazosin, Suboxone, Gabapentin and Fluoxetine. [ 113 ] His clinical records also indicate T.P.C. was also supported by a number of outreach workers who assisted him with his daily living and household chores, including: (

a) removing garbage from his residence; (

b) cleaning his residence (

c) unplugging his sink; (

c) obtaining food and groceries from the food bank and elsewhere. The outreach workers also assisted T.P.C. in installing and using the necessary software to communicate with A.M.C. remotely. [ 114 ] Social Worker Carifelle referred T.P.C. to the [omitted for publication] Child, Youth and Family Services Society (“CYSS”) so that he could attend his virtual visits with A.M.C. with the support of a supervised access worker who could help coach him during the virtual visits.

SW Glaze advised SW Carifelle that it took several attempts before CYSS was able to hold a foundation meeting with T.P.C. to initiate the service. He attended one virtual meeting with the CYSS supervised access worker in August 2020, and then abruptly left for Sumac. CYSS closed its file.

In June 2021, Social Worker Glaze expressed the concern that T.P.C. was “unmotivated or unable to follow through with voluntary services” with the CYSS Family Support program: Exhibit 4. [ 115 ] T.P.C. was an inpatient at [omitted for publication] from August 18, 2020 to December 18, 2020. [omitted for publication] is a specialized mental health facility in [omitted for publication] on Vancouver Island.

It focuses on counselling, life skills, cognitive behavioural therapy and other forms of treatment. [ 116 ] Psychiatric Registered Nurse Diane Camponi became T.P.C.’s Adult Mental Health Case Clinician in June 2020. She became his pillar of support in the community. PRN Camponi supervised three of T.P.C.’s telephone visits with A.M.C., which took place from 3:30 to 4:00 p.m. each Tuesday. PRN Camponi advised SW Carifelle:

His daughter is always happy to see him and she is busy showing him her toys, and never wants to end the call. The FP [S.L.] recommends to end the call in thirty (30) minutes, but It usually goes for one (1) hour. [T.P.C.] was in [omitted for publication] for three to four months. After he came back from [omitted for publication] in December 2020, he wanted more support, so he went to the [omitted for publication] and he has been doing very well. He is at [omitted for publication], and he has been there since the first week in March, 2021.

He is no longer using any drugs, but now using alcohol. [PRN Camponi] keeps in touch with Mr. Fitzpatrick and he is the Director of [omitted for publication] [T.P.C.] is doing very well, and he has been moving forward since July. [T.P.C.] is working on developing his coping skills, and he attends a lot of groups. The addiction is not like it was last year. His main issue is dealing with his anxiety. He's getting good counselling and meeting other peers . . . [ 117 ] When he left [omitted for publication], T.P.C. went directly to the hospital where he stayed for a couple of days.

He did not relapse, but became sick with anxiety. [ 118 ] According to PRN Camponi, T.P.C. attributed his lack of contact with A.M.C. as a significant contribution to his mental health deteriorating. [ 119 ] T.P.C. testified at the CCO Hearing that he last used drugs in 2018 or 2019. However, his medical records indicated that in 2020, T.P.C. continued ongoing use of cannabis regularly with episodic use of methamphetamines.

At hearing, T.P.C. admits to smoking cigarettes and using cannabis. [ 120 ] The Director has tried to facilitate T.P.C. having regular remote visits with A.M.C. by video, but that has not been without its problems. T.P.C. is to have Skype calls with A.M.C. every Tuesday from 3:30 to 4:00 p.m. In her April 28, 2021 Affidavit, GSW Leung states that T.P.C. missed four Skype calls with A.M.C.: March 9, 2021; March 23, 2021; March 30, 2021; April 6, 2021.

She states, “FP [S.L.] told me that one week [T.P.C.] wasn’t feel well, then had a tattoo appointment, and the last week, no one was able to locate him. [T.P.C.] texted me on 07 April 2021 that he was at his mother’s home which has poor cell service, so he didn’t receive the texts and phone message.” [ 121 ] T.P.C. not only missed his remote visits with A.M.C., he also missed his review meeting on April 1, 2021, with his social workers and psychiatric nurse.

PRN Camponi tried contacting T.P.C. by telephone but could not reach him even though she met with him in person on March 31, 2021, and advised him of the meeting. SW Carifelle recommended T.P.C. travel to [omitted for publication] on Saturday and Sunday in order to have a visit with A.M.C. before the commencement of the May 3-6, 2022, hearing date (the Fifth Hearing Date).

She did not recommend T.P.C. have access with A.M.C. during the hearing because “his anxiety levels may be up, as he doesn’t cope well with stress, which may affect their access between them.” [ 122 ] After PRN Camponi met with T.P.C. on March 31, 2021, she was unable to reach him for over a week, despite having left him numerous voicemails asking if he intended to participate in the Tuesday calls at 1:30 pm with A.M.C. on April 12, 2021. T.P.C. did not return her calls and did not attend the April 12, 2021, Skype visit with A.M.C.

I gather PRN Camponi became exasperated and sent SW Carifelle an email on April 13, 2021, advising she would no longer facilitate T.P.C.’s remote access to A.M.C. and she would not travel with him to [omitted for publication] to support him during the May 3-6, 2021, court proceedings. PRN Camponi said she would continue to support T.P.C. as his case manager for the [omitted for publication] Mental Health and Substance use as required and needed. T.P.C. would continue to see Dr. Bell as his psychiatrist. [ 123 ] On April 19, 2021, SW Carifelle met with GSW Leung, SW Glaze, T.P.C. and PRN Camponi.

She states in her April 28, 2021 Affidavit (CEIS 66): 13. . . . [T.P.C.] stated that he would contact the lawyer Mr. Van Delft and find out if he can still represent him. [T.P.C.] will ask Mr. Van Delft if he can attend hearing virtually. [PRN] Camponi is willing to support [T.P.C.] during the hearing virtually. SW Glaze offered to supervise a visit between [T.P.C.] and his daughter on April 20, 2021, but he said that he also wanted [PRN Camponi] present during the visit. [PRN] Camponi stated she could continue to supervise his access…” [ 124 ] Although Mr. W.

Van Delft was happy that T.P.C. was well supported, he maintained that if he could not get instructions from T.P.C. personally, he could not represent him. [ 125 ] In an email sent to PRN Camponi on April 12, 2021, SW Carifelle asks if there is anyone who can assist T.P.C. to contact his former legal counsel (Mr. W.

Van Delft) and who can assist T.P.C. in attending his access visits with A.M.C. via telephone every Tuesday at 3:30. [ 126 ] In an email dated April 12, 2021, SW Katherine Glaze advised SW Carifelle that the [omitted for publication] MCFD social workers referred T.P.C. to the Supervised Access program through [omitted for publication] Child Youth and Family Support Services a year ago, “but it took several attempts before he was able to follow through with meeting with me and the Supervised Access Worker to initiate service.” SW Glaze states, “He attended one virtual visit in August or September 2020 and then the service was discontinued as he was no longer residing in the area.” [ 127 ] In her affidavit (Exhibit 1), SW Carifelle set out a

summary of T.P.C.’s access to A.M.C. in 2020 and 2021, as follows:

SUMMARY OF ACCESS IN PERSON VISITS February 26, 2020: 2:45 pm to 4 pm supervised by Axis Feb 27, 2020: 10 a.m. to 11:30 am at MCFD office. Foster Parent [S.L.] supervised [T.P.C.]’s access visit with [A.M.C.] from 4:00 pm to 6 pm at the arena. She reports the visit went good; [T.P.C.] interacted with [A.M.C.] and [A.M.C.] loved skating,

Feb 28, 2020: 1 p.m. to 2:30 p.m., supervised by AXIS TELEPHONE ACCESS Feb 25, 2021/SKYPE 3:15 to 4:16 to 4:30ish pm March 5, 2021: from 3:30 pm to 4 pm SW Carifelle received an email that [T.P.C.] cancelled wasn't feeling well, cancelled the March 9, 2021, 3:30-4pm Skype visit. March 16, 2021: 3:45-4:30 pm SKYPE visit March 23, 2021 3:20 - no show March 30, no call show Foster Parent [S.L.] said that visits went well overall but [T.P.C.] gets distracted.

When it’s time to say goodbye, [A.M.C.] says no “I want to see daddy,” but then is fine once the call is done. [ 128 ] In 2021, T.P.C. had two assigned social workers, one in [omitted for publication] and one [omitted for publication]. SW Bowden replaced SW Carifelle as T.P.C.’s social worker in [omitted for publication] at the end of May 2021. SW Glaze, followed by SW Hilton, were T.P.C.’s social workers [omitted for publication]. All experienced difficulty in contacting T.P.C. He did not contact them in person nor did he engage in community servi

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