DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2021 BCPC 17

Citation: British Columbia (Child, Family and Community Service) v. Z.J.C. 2021 BCPC 17 Date: 20210129 File No: 1830183 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: R.L.X.C., born [omitted for publication] R.L.Q.C., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: Z.J.C. AND S.Y.L . PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Director: G. Teichroeb Counsel for the Parent: C. Ferguson Counsel for the Children F. Beveridge

Place of Hearing: Vancouver , B.C. Dates of Hearing: January 12 and 13, 2021 Date of Judgment: January 29, 2021 INTRODUCTION [ 1 ] This is an application by the Director of Child, Family and Community Service (the “Director”) for a continuing custody order of two children pursuant to sections 49(4) and (5) of the Child, Family and Community Service Act ( the “Act”). [ 2 ] The father Z.J.C. opposes this order. For ease of reference, I will refer to Mr. C. as the “Father”. [ 3 ] There are two children, ages 14 and 12. For reasons of privacy, I will refer to them as the “Children”.

The Children are represented by counsel Fiona Beveridge and they oppose the Director’s application. [ 4 ] The mother is S.Y.L., and in this decision, I will refer to Ms. L. as the “Mother”. The Mother disappeared on January 8, 2018. On January 22, 2018, the Vancouver Police detained and questioned the Father regarding the Mother’s disappearance. The Director took the Children into care at that time. [ 5 ] The Father has never been charged in relation to the Mother’s disappearance. BACKGROUND [ 6 ] On April 26, 2018, Judge Phillips made a temporary custody order with the consent of the Father.

As provided for in section 60(5) of the Act , a consent order is not an admission by the Father that the Children are in need of protection. [ 7 ] Judge MacLean further extended the temporary custody order by consent on June 6, 2018. [ 8 ] The Father opposed a further extension of the temporary custody order and this dispute resulted in a hearing before Judge MacLean on June 21, 2019. At that hearing, Judge MacLean found that the children were in need of protection and he extended the June 6, 2018 temporary custody order for a further three months to September 21, 2019.

The Father continued to have supervised access to the Children at the discretion of the Director. [ 9 ] Subsequent court orders extended the temporary custody order by consent. [ 10 ] On February 11, 2020, the Director filed an application for a continuing custody order, which is the application before me. [ 11 ] The Father chose not to testify at this hearing. Given that he is facing the potential of Criminal Code charges, I am not prepared to draw any negative inferences from this decision. [ 12 ] The evidence of the Children was received by way of affidavits, which also attached letters from each child.

Section 67 of the Child, Family and Community Service Act permits this and, in my view, this is an appropriate method of submitting the views of the Children to the Court. JENNIFER DONNELLY [ 13 ] The social worker, Jennifer Donnelly, testified that she had no concerns regarding the Father’s visits with the Children. She described the quality of their visits as positive and that it was evident the Children remain quite attached to the Father. She said that the Children “light up” when they see the Father. [ 14 ] Ms.

Donnelly described the reports of the access supervisor, Westcoast Family Centres, as positive and raising no concerns. [ 15 ] Ms. Donnelly referred to the Children as being well behaved. She said that they follow the rules and are respectful. She felt the Children were still grieving the loss of their Mother. She described them as amazing children, that they wish to see their Father and do not display any fear of him. [ 16 ] Ms. Donnelly also referred to previous incidents involving the Father and the Mother, and the Father and his first wife. I will describe these incidents later in my decision.

The Director closed both files though, which suggested to Ms. Donnelly that any concerns were addressed. POLICE EVIDENCE [ 17 ] At the hearing before Judge MacLean in June 2019, Detective Constable Mah of the Vancouver Police Department testified that the Father was suspected of being involved in his wife’s disappearance, and that he was likely to be charged. Judge MacLean was told that the children were at risk from the Father because they were potential witnesses against him.

The police were also concerned about the unpredictability of the Father’s behaviour. [ 18 ] Although the police were aware of this trial for the continuing custody order application, they have chosen not to become involved. [ 19 ] Ms. Donnelly’s last update from the police was about two months ago. Ms. Donnelly said the police told her that their investigation was still ongoing and that they were still considering charges against the Father. [ 20 ] Ms. Donnelly also spoke to Crown Counsel but they did not provide her with any further update.

[ 21 ] I expect that if there is still an investigation underway, the police may choose not to disclose information so as not to jeopardize the investigation. As I said, it is because of the ongoing investigation that the Father elected not to testify at this trial. THE REPORT OF DR. STEPHEN D. HART AND DR. BRIANNE K. LAYDEN [ 22 ] At the request of the Director, Dr. Stephen D. Hart and Dr. Brianne K. Layden prepared a violence risk assessment of the Father in relation to family violence concerns.

I will refer to this assessment as the “Report”. [ 23 ] The opinion set out in the Report was based on various sources of information provided by the Director, records of the Vancouver Police Department, a news

article from The Vancouver Sun dated February 21, 2018, notes from the social workers and Westcoast Family Centres and email communications between the Ministry and the Vancouver Police Department. [ 24 ] There was no interview with the Father or the Children. The Father chose not to participate in the assessment given the criminal investigation. [ 25 ] The Report refers to the Father’s relationship with his first wife as lasting from 1994 to 2000. The couple had one child. After the couple’s separation, there were police investigation reports for incidents occurring on March 6, 2006, and on December 2, 2006.

Neither incident resulted in an arrest or charges. There was no suggestion that their child was in need of protection. [ 26 ] According to the Vancouver Police Department records, on March 6, 2006, the Father got into an argument with his first wife over child support. When the Father tried to leave the residence, the first wife blocked him. The Father pushed the first wife and threatened her. He then left the residence, but the first wife went into the Father’s car and refused to leave.

The Father pulled her out of the car, threatened her again and then left. [ 27 ] According to the first wife, she did not fear being hurt by the Father and knew that he was trying to leave. [ 28 ] The Vancouver Police Department records describe the December 2, 2006 incident where the first wife reported to the police that the Father was striking their son with a wooden spoon to toilet train the child. The police attended the home. The child had no injuries and said his mother also disciplined him using the same utensil when he did not play the piano well.

The police instructed the Father not to use the spoon to discipline the child. No charges were laid. [ 29 ] The Report also discusses the Father’s relationship with the Mother, which lasted from either 2005 or 2006 to 2017. The Report refers to police investigations for incidents occurring on June 1, 2017, and then on June 3, 2017. Neither incident resulted in arrest nor charges, nor a finding that the children were in need of protection. [ 30 ] In the June 1, 2017 incident, both spouses called the police to report that the other was threatening them.

According to the Vancouver Police Department records, the Mother told the police that the Father threatened her with a knife. The Mother said that during an argument with the Father, he was eating with a butter knife. The Mother said the Father did not threaten her or lunge at her with the knife. The Mother told the police that the only reason she called them was that the Father was holding the knife. [ 31 ] In the June 3, 2017 incident, the Father phoned the police regarding a property dispute with the Mother.

According to the Vancouver Police Department records, the Father had some of the Mother’s belongings in a locked room in the house where the Father was living. The Mother entered the house and broke into the room. The police were called based on a report of a break-in. The police report noted that the Father and Mother constantly yelled at each other but there was no physical aggression. [ 32 ] The Report also says that the Father played a limited role in raising the Children and suggests that the Mother was the primary caregiver during the relationship. Dr.

Hart was asked about this statement and he clarified that he meant, because the Father was working full time, his actual time spent caring for the Children was limited. [ 33 ] The Report sets out an opinion that the Father “has a history of domestic (family) violence in the form of intimate partner violence and child abuse or neglect. The domestic violence was chronic or persistent, spanning a period of about 15 years toward two intimate partners and three young (pre-teen) children.” [ 34 ] Dr.

Hart was questioned about his use of the word “chronic” and he explained that this term referred to occurring over time as opposed to being frequent in nature. As I described, the incidents he referred to occurred in 2006 and then in 2017. [ 35 ] Dr. Hart described the March 6, 2006 incident as one involving violence by both parties toward each other. Dr. Hart said that it was irrelevant who instigated the violence. His focus was on the participation in the violence. Dr. Hart said that the better response for the Father, where the Mother instigates violence, is to walk away. [ 36 ] Dr.

Hart also agreed that there was only one report of corporal punishment toward a child, which was the December 2, 2006 incident involving the use of the wooden spoon during the toilet training. [ 37 ] The Report raises concerns over two scenarios. [ 38 ] The first scenario is where the Father has responsibility as the primary caregiver for his two aging and infirm parents and for the two Children. The Father would also face the additional stress of the ongoing police investigation.

Given that the Father is a single parent, the history of domestic violence, the stress and his lack of skills caring for others, the Report raises the concern that the Father may behave inappropriately toward the Children. The Report assesses this risk at moderate to high in light of the Father’s history of family violence. [ 39 ] The second scenario is where the Father faces trial in relation to his wife’s disappearance, which would likely cause a dramatic increase in stress.

The possibility that the Children could be called as witnesses in a trial may result in intimidation, threats or physical violence by the Father against the Children. The Report views the likelihood of this scenario as lower than the first scenario given that

the Father has not been arrested or charged. [ 40 ] Dr. Hart said in cross-examination that his concern was that in 2006 and 2017 there were two periods of family violence that, even though over ten years apart, occurred at times of family stress. He worried that if there was another case of family stress, family violence might result, with the potential now to include the Children. [ 41 ] The Report recommends that the Children remain in the Director’s care and that the Father have supervised visits.

The Report suggests that this be reviewed if the Father will not be facing trial in relation to the Mother disappearance. [ 42 ] I asked Dr. Hart about his views if I were to return the Children with a supervision order. He suggested that the Father have supervised access to the Children, followed by a period of unsupervised access. If the Director then had greater confidence that the Children were safe, he suggested the Children could be returned to the Father under the Director’s supervision.

LEGISLATION [ 43 ] In CFCSA proceedings, the Director must establish on the balance of probabilities that the Children are in need of protection. If that is shown, then all interested parties must demonstrate the most appropriate plan of care for the Children: see B.B. v. British Columbia (Director of Child, Family and Community Services) , 2005 BCCA 46 , at paragraph 35 . [ 44 ] The guiding principles under the Child, Family and Community Service Act are set out at

section 2, which states: 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; (b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children; (

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

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

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

f) Indigenous children are entitled to (

i) learn about and practise their Indigenous traditions, customs and languages, and (ii) belong to their Indigenous communities; (

g) decisions relating to children should be made and implemented in a timely manner. [ 45 ]

Section 13 of the Act sets out the circumstances when a child is in need of protection. That

section states: 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; (

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

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

b) and (

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

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

b) coerced or inveigled into engaging in prostitution.

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

a) and (

c) but without limiting the circumstances that may increase the likelihood of physical harm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides.

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

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. [ 46 ] The Director asks that I make a continuing custody order pursuant to section 49(5). I refer to sections 49(5) and (6), which state:

(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. [ 47 ] Section 49(6)(

c) refers to the child’s best interests, which is defined at

section 4 as follows: 4

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

a) the child's safety; (

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

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

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

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

f) the child's views; (

g) the effect on the child if there is delay in making a decision.

ANALYSIS [ 48 ] At the June 19, 2019 hearing, Judge MacLean found that the Children needed protection and he granted an order for a three- month extension of the existing temporary custody order. [ 49 ] Of concern to Judge MacLean was the ongoing investigation into serious allegations against the Father and the evidence from the police that charges were likely. [ 50 ] Eighteen months later, there are still no charges against the Father. [ 51 ] The Director’s counsel has suggested that there has been no change in circumstances since Judge MacLean’s order, but I disagree.

In my view, the passage of time itself with no Criminal Code charges does represent a change in circumstances. At the June 21, 2019 hearing, Judge MacLean was dealing with a somewhat dated allegation against the Father. That allegation is now three years old with no new information from the police or Crown Counsel.

[ 52 ] I am also of the view, based on the Vancouver Police Department reports, that the only incidents where the Father was involved in physical violence in a family setting occurred on March 6, 2006, and then December 2, 2006. The March 6, 2006 incident appears to have been instigated by the first wife. The December 2, 2006 wooden spoon incident appears to have been corrected by the instructions of the police. [ 53 ] The description of the events in 2017, involving the Mother, may have involved heated disagreements between the parents but did not appear to involve any actual physical violence.

In light of this, I do not agree with the Report’s conclusions that the Father’s involvement in family violence is “chronic” or recurring. [ 54 ] As the evidence makes clear, there are no current protection concerns aside from the suggestion from the police that Criminal Code charges are imminent. However, there is no indication that charges are, in fact, imminent. [ 55 ] Dr. Hart raised concerns about how the Father may react under the stress of caring for his parents and the two children.

I have considered Jennifer Donnelly’s description of an incident in the fall of 2020, when the oldest child went to the Father’s home out of concern for his grandparent’s health. The oldest child demonstrated impressive responsibility and maturity during this incident. He kept Ms. Donnelly informed of his whereabouts and intentions. He returned to his foster home when she requested him to do so. Even though the oldest child is 14 years at this time, I believe his presence in the family home will actually help reduce the Father’s stress involved with caring for the grandparents.

Furthermore, the evidence satisfies me that the Children are well behaved, mature beyond their years and, as described by Ms. Donnelly, they follow rules. There will always be stress when raising children but I do not believe the stress will be excessive when it comes to these Children. [ 56 ] Dr. Hart suggested that, as an alternative to a supervision order, the Father first have supervised access to the Children, followed by a period of unsupervised access.

If the Director then had greater confidence that the Children were safe, he suggested the Director could return the Children under a supervision order. [ 57 ] I note that the Father has had supervised access for three years now. [ 58 ] What Dr. Hart proposes is not an available option to me. If I do not make a continuing custody order, then section 49(7) states I can only make one of three orders: (

a) Return the Children to the Father, being the parent apparently entitled to custody, (

b) Order that the Children remain in the temporary custody of a person other than the Father for a specified period of up to 6 months; or (

c) Order that that the child remain or be placed in the temporary custody of the Director for a specified period of up to 6 months. [ 59 ] Section 49(8) also permits me to order the supervision of the Children for a period of up to 6 months if I return the Children to the Father or make a temporary custody order placing the Children with a person other than the Father. [ 60 ] Section 49(5) of the Act says that I may make a continuing custody order in certain circumstances, and I will discuss each in turn. Section 49(5)(

a) There is no significant likelihood that the circumstances that led to the removal will improve within a reasonable time [ 61 ] The circumstances that led to the removal of the children were the initial arrest of the Father and the disappearance of the Mother. The continued removal of the Children was due to the expectation that the police would charge the Father in relation to the Mother’s disappearance. It has now been three years and there is no indication that charges are imminent. The Father cannot do anything to change this circumstance since it is beyond his control. Section 49(5)(

b) There is no significant likelihood that the Father will be able to meet the Children’s needs [ 62 ] There is no evidence that the Father will not be able to meet the Children’s needs. Ms. Donnelly indicates that the Director has no concerns in this regard. [ 63 ] Section 49(6) lists certain factors I must consider before making a continuing custody order. I will discuss each of them. Section 49(6)(

a) The past conduct of the Father towards the Children [ 64 ] There is no evidence of any violence or harm directed at the Children by the Father. The Father’s involvement in acts of violence in 2006 occurred before the Children were born. Section 49(6)(

b) The plan of care [ 65 ] The Director proposes that the Children remain in a foster home. I have no reason to believe that the Children are not well cared for in this home. Section 49(6)(

c) The Children’s best interests [ 66 ]

Section 4 of the Act lists certain factors that may be relevant when deciding what is in the Children’s best interests. When I consider each of the listed factors, I conclude that all but one weigh in favour of returning the Children to the Father. The Children’s emotional needs are best met by being with their Father and their family. By being with their Father, the Children will be best able to maintain their relationship with him and with their heritage. The views of the Children are to return to their Father.

The effect of further delay in their return will only jeopardize the connection of the Children with their Father. Indeed, the only consideration weighing against the return of the Children is a concern for the Children’s safety, if the Father was involved in the Mother’s disappearance. However, given that the police have not laid charges for three years now, those concerns verge on speculation rather than even a strong

suspicion. [ 67 ] With respect to Dr. Hart’s concern that the Father may have difficulty caring for the Children and his elderly parents, the Director can offer support services, as called for in

section 2(

c) of the Act . [ 68 ] Dr. Hart raised a concern if the police charge the Father in relation to the Mother’s disappearance. If that occurred, I expect the police would notify the Director and the Director can then take whatever measures are required at the time to protect the Children. [ 69 ] Dr. Hart’s suggestion of a period of further supervised access, followed by unsupervised access and then a supervision order runs contrary to

section 2(

g) of the Act , which calls for the making and implementing of decisions affecting the Children in a timely manner. This is especially the case when it has been three years since the Director removed the Children. [ 70 ] I am satisfied that the Children should be returned to their Father pursuant to section 49(7)(a). In order to deal with any safety concerns, I order that pursuant to section 49(8), the Children be under the Director’s supervision for a period of six months. The terms of the supervision order as suggested by the Director is as follows: 1.

The father, Z.J.C., must reside with the children, R.L.X.C. and R.L.Q.C., at his current address and must not change his place of residence or that of the children without first informing the Director of any change at least 10 days in advance. 2. The father must allow the Director or their agents to visit and inspect the home and to have direct and private access to the children at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well- being of the children. 3.

The father will ensure that the children regularly attend support services, including respite services to facilitate a gradual return, as directed by the Director, unless a proposed service provider recommends otherwise and the Director agrees. 4.

The Director may remove the children if the father does not comply with supervision term #2 of this order. [ 71 ] Counsel for the Director will draft this order and circulate it among the other counsel for approval as to form. [ 72 ] The parties may return before me if needed to resolve any issues about the wording of the order or the terms of the supervision. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia