DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 166

Citation: British Columbia (Child, Family and Community Service) v. S.M.S. 2020 BCPC 166 Date: 20200625 File No: 18372 Registry: Port Coquitlam 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: B.C.S. , born [omitted for publication] E.S. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.M.S. PARENT AND: K.W.F. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. DOREY Counsel for the Director: R. Gosal Counsel for the Parent S.M.S.: R.

Chambers Counsel for the Parent K.W.F.: K. Brar Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: February 3, 28, 2020

Date of Judgment: June 25, 2020 A Corrigendum was released by the Court on August 27, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] On August 15, 2019, the Director of Child, Family and Community Service (the “Director”) removed B.S. (or “B.”) (born [omitted for publication]) and E.S. (or “E.”) (born [omitted for publication]) (the “children”), from their biological parents, S.S. (or “Mr. S.”) and K.F. (or “Ms./Miss F.”) pursuant to s. 30 of the Child, Family and Community Service Act (the “ Act ”) owing to protection concerns involving Mr.

S. [ 2 ] After removal, the children were returned to the care of their mother under the supervision of the Director. Mr. S.’s access to the children has been at the discretion of the Director. [ 3 ] Following removal, the Director approved supervised visits for Mr. S. with the children through a Ministry of Child and Family Development (“MCFD”) approved resource in Maple Ridge. These visits varied from time to time, and principally occurred twice weekly, two hours per visit. [ 4 ] Mr.

S.’s in-person visits with the children were suspended temporarily in mid-March 2020, when the public health emergency was declared by the Province due to the COVID-19 pandemic. In its place, the MCFD planned to provide Mr. S. with video or telephone access to the children. Consequently, Mr. S. has had limited face-to-face contact with the children since mid-March of this year. [ 5 ] The Director seeks an order pursuant to s. 35(2)(

b) of the Act that the children remain in Ms. F.’s care under the supervision of the Director. Under the proposed plan of care, Mr. S. would continue to have reasonable access to the children at the discretion of the Director. [ 6 ] Ms. F. agrees with the Director, and is of the view that it is in the best interests of the children that they remain in her care under the Director’s supervision. [ 7 ] The children are Indigenous through Ms. F.’s ancestry. Ms. F. is a member of the [omitted for publication]. Ms.

F.’s Band has been involved in the development of the plan of care and is supportive of the children remaining in Ms. F.’s care. [ 8 ] Mr. S. contests the removal. He claims that Ms. F. falsified her accounts of domestic violence in their relationship and that the MCFD “bought in” to Ms. F.’s lies. [ 9 ] The presentation hearing began on February 3, 2020. The hearing occupied two full hearing days of court time, with a further continuation date set for March 25 th .

The third day of hearing did not proceed and was adjourned generally due to the public health emergency declared by the Province arising from the COVID-19 pandemic. [ 10 ] The balance of evidence of the parties was subsequently received by affidavits and answers to interrogatories. [ 11 ] On March 10, 2020, Mr. S. brought an access application pursuant to s. 55 of the Act , seeking to restore the parenting arrangements that were in place under a Family Law Act (“FLA”) order in time for the children’s spring break. Mr.

S. also sought full disclosure of “all documents” held by the Director in relation to the MCFD’s ongoing investigation of this matter. [ 12 ] On April 9, 2020, I allowed the Director’s preliminary objection on the access application and dismissed Mr.

S.’s application as premature with reasons to follow. (Those reasons were released on April 29, 2020, and are found at 2020 BCPC 87 .) REASONS FOR THE REMOVAL [ 13 ] The Presentation Form and Report to the Provincial Court of British Columbia filed August 22, 2019 (collectively, the “Report to Court”) describe a series of incidents occurring between mid-August 2018 and mid-August 2019 which collectively form the factual basis for the Director’s belief that there had been an escalation in domestic violence by Mr. S. towards Ms. F.

Because of this pattern of behaviour, it is the Director’s belief that the children were at risk of emotional and physical harm by witnessing acts of domestic violence, unless they were removed. [ 14 ] It is also the Director’s position that Mr. S.’s unwillingness to plan or discuss safety concerns with MCFD led the Director to conclude there were no other less intrusive measures than to remove the children and place them in Ms. F.’s care under the Director’s supervision pending a protection hearing. THE LAW [ 15 ] The children were removed pursuant to s. 30 of the Act . This

section states in part: 30

(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that (

a) the child's health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child. …

(4) A director's authority or duty under this Act to remove a child applies whether or not … (

c) any other steps have been taken under this Act with respect to the child. [ 16 ]

Section 35 of the Act governs the next steps after a child has been removed by the Director. The focus of this

section is the presentation hearing. This is the first step in a child protection proceeding after removal: B.S.R. v. British Columbia (Child, Family and Community Service), [2016] BCJ No. 1572 (S.C.) . [ 17 ] What must occur at a presentation hearing is governed by s. 35(1) of the Act, which states: 35

(1) At a presentation hearing relating to the removal of a child under

section 30, the director must present to the court a written report that includes (

a) the circumstances that caused the director to remove the child, (

b) a n interim plan of care for the child, including, in the case of an Indigenous child, the steps to be taken to support the child to learn about and practise the child's Indigenous traditions, customs and language and to belong to the child's Indigenous community, and (

c) information about any less disruptive measures considered by the director before removing the child. [ 18 ] The intention of the presentation hearing is to ensure that children are not arbitrarily taken into care: B.B. (Director of Child, Family and Community Service) , 2005 BCCA 46 , at para. 13 ; Director v. LDS and CCC , 2018 BCPC 61 , at paras. 59-60 . [ 19 ] The purpose of the presentation hearing is aptly described by Brown J. in B.S.R. v.

British Columbia (Child, Family and Community Service), supra , at para. 17, as follows: In short, it is not the purpose of a presentation hearing to decide if the child is need of protection, only to determine, as per s. 30 of the Act, stated above, whether the Director had reasonable and probable grounds to believe the child needs protection. … [ 20 ] Although the hearing is designed to allow the Director and parents or other parties to present some evidence to the Court in support of their respective positions, the presentation hearing is intended to be “summary” in nature and concluded as soon as possible: s. 33.3 of the Act.

In describing the

summary nature of the presentation hearing, Huddart J.A. in B.B. , supra, at para. 13 , remarked: [13] … The focus of the hearing is on providing appropriate care arrangements for the child until a protection hearing can take place. Both the Director and the parents may call viva voce evidence, but it must be brief: British Columbia (Director of Child, Family and Community Service) v. R.F ., [1996] B.C.J. No. 1979 (S.C.) . [ 21 ] At the conclusion of the presentation hearing, the Court must make one of four orders, pursuant to s. 35(2): (

a) an interim order that the child be in the custody of the director, (

b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the director, (

c) an order that the child be returned to or remain with the parent apparently entitled to custody, or (

d) an interim order 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. [ 22 ]

Section 30 and 35 collectively prescribe a two-step procedure to be followed at the presentation hearing: Re S.M., [1998] B.C.J. No. 2204 (B.C.P.C.) , at para. 25 . During the first stage, the Director must establish that the removal was justified by demonstrating to the Court that, s/he had “reasonable grounds to believe”, at the time of removal, that the children were in need of protection and that the children faced immediate health or safety dangers, or there were no less disruptive measures other than removal. The second stage involves the determination of the interim care arrangements for the child pending a protection hearing. [ 23 ] During this inquiry, the Court must “in a

summary fashion”: … review the circumstances prevailing at the date of the removal, including the past history of dealings with the child, together with any other relevant evidence adduced at the hearing itself, … and decide whether or not, viewed objectively, and not simply from the perspective of the Director, this constituted sufficient cause to justify the removal of the child in question. If that question is answered in the negative, then in my view, the child must be returned to the parents.

Conversely, once that question is answered in the affirmative, the question for the Court becomes what, in the circumstances, is the best way to care for the child until there can be a comprehensive enquiry at the protection hearing. Re S.M., supra, at para. 25 [ 24 ] Throughout this process, the Court must have careful regard to the guiding principles of the Act, as set out in s. 2, to ensure that the “safety and well-being” of the child remain the “paramount considerations”. [ 25 ] In Re (S.)B. [1998] B.C.J.

No. 2553 (S.C.) , Bruce J. summarized the process and evidentiary standards to be followed by the Court at a presentation hearing: 17. A presentation hearing is a

summary process; it is not designed to allow all parties to give evidence or to facilitate evidentiary

findings based on credibility. It must be emphasized that this is only an interim order with respect to the care of the child pending acomprehensive hearing to assess whether the child is in need of protection. In the presentation hearing the Court must determine whetherthe Director has complied with the statute in authorizing the removal of a child. If there is a dispute about the facts that form the basis ofthe apprehension, it is resolved in the Director's favour.

Whether or not the allegations form a proper basis for the Director's actions mustbe determined on the balance of probabilities; however, a lower standard must apply when there is a risk of injury to the child:Superintendent of Family and Child Services v. M.(B.) and O.(D.) (1982) (BC SC), 37 BCLR 32 (BCSC). Finally,because the purpose of the interim order is to ensure the best interests of the child are preserved, the Court must have regard to theguiding principles of the Act set out in

Section 2, as well as the factors relevant to the best interests of the child in

Section 3, indetermining whether the Director acted appropriately. [26] The Director bears the burden of proof at a presentation hearing and the standard of proof is “much lower” than a balance ofprobabilities: B.S.R., supra, at para. 16 and 18, citing British Columbia (Director of Child, Family and Community Service v. CP, 2015BCPC 360, at para. 30, and British Columbia (Director of Child, Family and Community Services) v. S.A. (15 April 1998) NelsonDocket No. 7227 (B.C.S.C.), at para. 12.

For this reason, the presentation hearing has been compared to the preliminary inquiry processin criminal law. [27] In making the comparison to a preliminary inquiry, Auxier PCJ, stated, in R.G. v. A.P., [2001] B.C.J. No. 466 (B.C. Prov. Ct), atpara. 4: [4] Judge Tweedale in T.(K.M.) v T.(J.D.), [1999] B.C.J. No. 822, Fam. L.D. 80 compared a presentation hearing to a preliminaryinquiry. In the latter, the court doesn't decide guilt or innocence but merely commits an accused for trial if there is admissible evidencethat could, if believed, result in a conviction.

In the presentation hearing, the court doesn't determine whether or not the child is in needof protection, but determines only whether there is admissible evidence which, if believed, could lead to a finding that the child is in needof protection. If so, the matter is set for a protection hearing. [28] If the Court is satisfied that the standard is met, then the Court must decide the interim care arrangements for the child.

Theissue is whether it is in the best interests of the child for the Director to have interim custody pending a comprehensive protectionhearing: British Columbia (Director, Child, Family and Community Service Act) v. M.H., [2008] B.C.J. 1510 (S.C.), at para. 33, citingBritish Columbia (Director of Child and Family Service) v. R.F., [1996] B.C.J.

No. 1979 (S.C.), at para. 24. [29] In deciding the interim care arrangements for a child, the Court may become involved in some “weighing of the evidence”, butmust have regard to the principle that disputed facts are decided in the Director’s favour if there is independent evidence to support theDirector’s position: Re S.M., supra, at para. 27. [30] In M.H., supra, Halfyard J., examined the criteria that would justify an interim custody order to the Director following a reviewof the legislative scheme in s. 30 and 35 and the jurisprudence.

Following this review, his Lordship articulated the following test (at para.40):

a) First, that at the time a child was removed, there were objectively reasonable grounds to believe that the child was then in need ofprotection, and that either the child's health or safety was in immediate danger, or no other less disruptive measure that was available wasadequate to protect the child;

b) Second, that at the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the twoessential elements required by s. 30(1) of the Act continue to exist; and

c) Third, that in the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is ofsufficient magnitude to require that the child be kept in the interim custody of the director, pending a protection hearing. [31] In my opinion, this test is equally applicable in circumstances, such as these, where an interim supervision order under ss. 35(2)(

b) is the relief sought by the Director. Accordingly, this is the test that will be applied in this case. OVERVIEW OF THE EVIDENCE [32] Social workers Jennifer Owen and Kirsten Milholm gave evidence on behalf of the Director. In their testimony, they describedthe factual circumstances leading to the removal, the reasons for the Director’s belief the protection concerns remain with Mr. S., and thereasoning for the interim supervision order sought. [33] Ms. F. relies on her two affidavits, together with her answers to Mr. S.’s interrogatories. In her evidence, Ms.

F. describes heraccount of past and recent violence in the home and her ongoing safety concerns about Mr. S. [34] Mr. S. relies on his five affidavits (including three affidavits from the FLA proceeding), together with his answers to theDirector’s and Ms. F.’s interrogatories. He states that he “never committed domestic violence” and contests much of the evidence led bythe Director. He alleges that Ms. F. is lying. [35] Mr. S. further deposes to his fear that Ms. F.’s ultimate plan is to relocate with the children back to Ontario to be closer to herfamily. Ms.

F. points to the non-removal order in the FLA proceeding which prevents either parent from removing the children fromBritish Columbia, which both parties have followed. [36] In further opposition to the Director’s application, Mr. S. relies on the testimony of Jeff Beyak, a MCFD approved accesssupervisor, who provided his first-hand account of Mr. S.’s positive interactions with the children during access visits. [37] Additionally, Mr. S. relies on the affidavits of his mother, R.S. (or “R.”, or “Mrs. S.”), and his sister, E.S., (or “Ms. E.S.”, or“Ms. S.”) and Ms. S.’s answers to Ms. F.’s interrogatories.

Mrs. and Ms. S. provide an account of their historical and current interactionswith each parent. Finally, Mr. S. relies on the affidavit of his former landlord, V.M. (or “Ms. M.”), who describes her observations of

Mr. S.’s interactions with the children. [ 38 ] Mr. S. and Ms. F. each adduce a substantial body of conflicting evidence to advance and defend their respective positions, including: (

a) Character evidence as found in a series of reference letters exhibited to Mr. S.’s April 3, 2020 affidavit, and in statements of opinion expressed by R.S., E.S., and V.M. attesting to Mr. S.’s good parenting skills and non-violent nature; (

b) Accusations of aggressive and threatening behaviours directed by Ms. F.’s companion, C.H. (or “Mr. H.”), towards Mr. S., R., and E.S.; (

c) Conflicting statements of fact as to which parent was the primary caregiver for the children; (

d) Conflicting statements of fact in relation to family asset division in the FLA proceeding, including money demands made by Ms. F.; (

e) Interrogatories sought in relation to the management of household expenses, and payment of household bills; (

f) Accusations by Ms. F. that Mr. S. threw a rock through the front window of the family home and vandalized her front door security cameras; (

g) Accusations by Mr. S. attributing vandalism to his vehicle to Ms. F. and/or Mr. H.; (

h) Hearsay statements found in Mr. S. and Ms. E.S.’s affidavits attributed to Ms. F.’s extended family members alleging Ms. F.’s plan for relocation to Ontario; (

i) Events involving the parties’ early relationship struggles; (

j) Interrogatory questions and answers in relation to Ms. F.’s employment history; and (

k) Historically dated and conflicting accounts involving Ms. F.’s decision to take baby B. to Ontario on March 28, 2013 for two weeks after a fight with Mr. S. [ 39 ] In undertaking my review of the evidence, I am guided by the following statement of principle of Huddart J.A. in B.B. , supra, at para. 14 , that it is the practice of this Court to resolve conflicts in the evidence in favour of the Director and to avoid making credibility findings, “… unless the facts the Director seeks to establish are manifestly wrong or untrue or unlikely to have occurred”. The underlying reason behind this practice is due to the

summary nature of a presentation hearing -- where the Court must be satisfied the Director had sufficient grounds for the removal, and then must decide the interim plan of care of a child pending a comprehensive protection hearing. [ 40 ] The evidence touched on above raises a myriad of credibility and collateral factual issues, none of which are pertinent to the essential issues captured by s. 30 of the Act that are before the Court at a presentation hearing.

I have disregarded such evidence for this reason. [ 41 ] I have also disregarded statements of the parties that ascribe motive, that involve argument, or pertain to factual issues unrelated to the care and safety of the children. This evidence is of little or no assistance to me given the purpose and

summary nature of a presentation hearing. The protection hearing is the forum where issues in relation to witness credibility and motive are properly brought. THE EVIDENCE IN SUPPORT OF THE REMOVAL [ 42 ] MCFD has been involved with the S./F. family since 2013 due to reports of domestic violence and drinking in the home. Two prior incidents of domestic violence are described in the Report to Court. Ms. Owen testified that these incidents provide the historical context for the removal. [ 43 ] The first was the August 2017 incident. This incident involved an argument between Ms. F. and Mr.

S. where he pushed her off a stool on which she was sitting. Ms. F. broke her tooth during the fall. This incident is further described in Ms. F.’s October 29, 2018 affidavit. [ 44 ] The second was the August 18, 2018 incident. Mr. S. was reported to have become upset at Ms. F. that morning when she yelled at B. to get out of bed. An argument ensued in the kitchen while Ms. F. was making breakfast. Mr. S. yelled at Ms. F., and called her names including calling her an “alcoholic”. Mr. S. is reported to have “screamed” at Ms. F. to get out of the house. When she did not do so, Mr.

S. threw the coffee pot, a bowl of pancake batter, dishes and a frying pan to the ground, smashing them, and food went everywhere. Ms. F. then took her car keys and attempted to flee. Mr. S. tried to take the car keys away from Ms. F., and in doing so, he twisted Ms. F.’s arm around his body. He released her arm once he had the keys. [ 45 ] Ms. F. describes this incident in detail in her October 29, 2018 affidavit. She deposes that after Mr. S. smashed the dishes, she took the car keys and tried to run away. Mr.

S. grabbed her arm, pulled the keys away from her, and then “slammed her” to the floor and then kicked her as she was on the ground. Police were called to the residence, Mr. S. was arrested but no charges were laid. [ 46 ] MCFD became involved following the August 18 th incident, particularly since it occurred in the presence of the children. Ms. Owen testified that B. was interviewed by MCFD about this incident and he reported that his father “hurt” his mother. [ 47 ] Ms. F. deposes in her October 29, 2018 affidavit that Mr. S. suffered a “brain injury as well as other injuries” in a 2014 car accident. Ms.

F. deposes that Mr. S. “has never been the same person” as a result of his injuries, adding that Mr. S. has become “very unpredictable”, “has extreme anger issues”, and has punched her “on multiple occasions …”

[ 48 ] Mr. S. neither confirms nor denies the fact that he had a serious car accident. Instead, he deposes that he was the primary caregiver for the children for three years before the separation because he could not work. He denies having a “brain injury” and claims Ms. F. made “false reports of a brain injury”, in answer to the Director’s interrogatories. (He does, however, acknowledge receiving a substantial ICBC settlement in answer to Ms. F.’s interrogatories.) [ 49 ] MCFD implemented a safety plan signed by both parents, to address the safety concerns arising from this incident. The safety plan required Mr.

S. to leave the home pending further assessment. [ 50 ] According to the Report to Court, both parents admitted to MCFD social workers that they each breached the safety plan “numerous times”, including by attending the PNE together with the children on September 5, 2018. Mr. S. further exercised unsupervised access to the children, contrary to the safety plan. As a consequence of these actions, the Director obtained a supervision order without removal on October 4, 2018. The children remained in the care of both parents.

The Director was granted a six-month temporary supervision order on December 13, 2018. [ 51 ] No additional reports of domestic violence were received by MCFD between the period December 13, 2018 and March 21, 2019. This was because the parties ended their relationship and Mr. S. had moved out of the family home. The Director then sought and obtained an order on March 21, 2019 cancelling the temporary supervision order pursuant to s. 57(3) and s. 60 of the Act. [ 52 ] On March 19, 2019, Ms.

F. then applied for an ex parte protection order under s. 183 of the FLA because, as she deposed, there would otherwise be “no agreement or court order” in place to prohibit Mr. S. from attending at her residence with the cancelation of the temporary supervision order. [ 53 ] Dossa PCJ granted the protection order. This order required Mr. S. to have no contact or communication with Ms. F. (except for limited contact for the purposes of attending family court proceedings, indirect contact through legal counsel, and email contact in relation to the children).

He was further ordered not to attend within two blocks of Ms. F.’s residence or place of employment, except as arranged through legal counsel. [ 54 ] The protection order did not apply to the children and Mr. S. continued to exercise parenting time under an FLA interim order. (The FLA interim order allocated access and parenting time between the parents. Under the FLA order, Mr. S. had weekly unsupervised access to the children, including weekly overnight parenting time from Saturday until Tuesday.) [ 55 ] Ms.

F. deposes that on the morning of April 1, 2019, she received an alert on her smartphone from her home security camera after she left with the children that morning. Surveillance footage showed Mr. S. hopping over the fence and entering the backyard of her residence. [ 56 ] Mr. S. admits he entered the home on April 1 st contrary to the protection order. His explanation for doing so was to check the gas lines to ensure the safety of the home because he was responsible for maintaining the property. [ 57 ] As a result of this incident, Mr.

S. was arrested and charged with breaching a court order under the Criminal Code . He was released on a police undertaking with the conditions that he have no contact directly or indirectly with Ms. F. and that he not go within two blocks of Ms. F.’s residence. [ 58 ] Mr. S. made further contact with Ms. F. by sending her an email on May 3, 2019. He was arrested and again charged with breaching a court order. [ 59 ] On June 12, 2019, Mr. S. appeared before Judge Dossa in criminal remand court and voluntarily entered into a peace bond made pursuant to s. 810 of the Criminal Code to resolve the breach charges.

Judge Dossa placed him on a 12-month recognizance, with several protective conditions that prohibited contact with Ms. F. [ 60 ] Soon after the recognizance was made, Mr. S. was seen in the community three separate times in close proximity to Ms. F. between June 22 and June 28, 2019. Two of these sightings occurred near the children’s daycare as she picked-up the children, and once when she played golf at a local golf course. She deposed that she felt that Mr. S. was following her and she remained afraid as a result of these sightings. [ 61 ] Ms.

Owen testified that adverse reports were received by MCFD in late June regarding Mr. S.’s FLA parenting time. This included a report received on June 28, 2019 that four-year old E. was left unsupervised for a short period of time while she was in Mr. S.’s care. [ 62 ] During the investigation of these reports, Ms. Owen testified that MCFD learned that Mr. S. was arrested in Penticton on July 2, 2019. Ms. Owen testified that the concern raised in the July 2nd report was that Mr. S. had been stalking Ms. F. contrary to the “no contact” provisions of the protection order and peace bond. [ 63 ] Ms.

F. described the July 2 nd incident in her April 3 rd affidavit. She deposed that she and the children drove to Penticton on July 2, 2019 for a short holiday and did not tell anyone of her travel plans. [ 64 ] Ms. F. deposes that she and the children “appeared to have been followed” by Mr. S. At paragraphs 16 and 17 of this affidavit, she states: [16] As I was pulling out of Summerland, I noticed Mr. S.’s vehicle in front of me. It is very distinct and after many incidents I knew the licence plates well.

I became fearful and anxious as to why he was in the same place as me again when I had told no one where I was going. I pulled into the hotel, checked in, and called RCMP. I stated that I was fearful that Mr. S. followed me all the way to Penticton from Maple Ridge and provided a brief background as well as informed the officer about the Protection Order and Peace Bond. [17] The officer left my hotel room and found Mr. S. in his vehicle not far from where I was. The officer opened Mr. S.’s phone and it

opened to a GPS tracking device and had my hotel logged as the last location of the device. There was also a written note with my license plate on Mr. S.’s front seat. [ 65 ] Mr. S. explains his presence in Penticton that day was coincidental. In his answer to the Director’s interrogatories about the July 2 nd incident, Mr. S. states: [1] No. I was arrested about 4 hours later after I was in Penticton. I had booked an Airbnb and was going to visit friends. I did see Ms. F. but I did not approach her. I went for lunch, did a few errands and was planning on going to my Airbnb later. [ 66 ] Mr.

S. admits he was arrested and charged with criminal harassment in connection with these events, but was later acquitted of the charge. He was released the same day on a police undertaking with multiple protective conditions that prohibited direct contact with Ms. F. [ 67 ] Ms. Milholm testified that MCFD held an interagency case assessment meeting on July 11, 2019 to discuss the safety risks to Ms. F. and the children presented by the July 2nd incident. Ms. Milholm testified that multiple risk factors were considered and discussed in determining the level of risk presented by Mr. S. to reoffend. Mr.

S. was designated as a “high risk offender” by representatives from the multiple agencies in attendance at this meeting, including RCMP Domestic Violence Unit Officer, Cst. Christine Day. [ 68 ] A plan was then developed for Ms. F. to attend counselling, for the children to be interviewed regarding the concerns of domestic violence in the home, and MCFD would address Mr. S.’s reports of Ms. F.’s problematic alcohol use. [ 69 ] On July 23 rd , the children and Ms. F. were each interviewed by Ms. Owen and Ms. Milholm.

During this interview, B. disclosed “there was not enough food at dad's house”, and that the children had gone to [omitted for publication] during a visit and “seen mom canoeing”. Ms. Milholm testified that the children did not disclose to them any reports of problematic drinking by either of their parents. [ 70 ] Ms. F. told Ms. Owen and Ms. Milholm during her interview that she remained afraid of Mr. S. especially in light of the July 2 nd stalking incident in Penticton. [ 71 ] Ms. Owen and Ms. Milholm interviewed Mr. S. on August 6, 2019 to address MCFD’s domestic violence concerns and to discuss next steps.

During this interview, Mr. S. told Ms. Milholm about several sightings of Ms. F. at local liquor stores made by two collateral witnesses, which suggested to Ms. Milholm and Ms. Owen that Ms. F. was being followed. [ 72 ] Ms. Milholm testified that she felt Mr. S. did not take the Director’s s. 13 protection concerns seriously and rather focussed on his concerns about Ms. F.’s drinking. She described Mr. S.’s demeanour as confrontational and angry throughout this meeting. [ 73 ] Ms. Owen, in answer to Mr.

S.’s interrogatories, explained her assessment of the child protection concerns as follows: [1] … Given the couple’s historical MCFD involvement regarding issues related to domestic violence, I determined that this report [the July 2, 2019 incident] would need to be assessed as it met our threshold for a

section 13 child protection concern. Specifically, the likelihood that a child may be physically harmed by the parent as they were residing in a household characterized by domestic violence, including circumstances such as the child had not yet been harmed however the violence was escalating. Utilizing the BC

Summary of Domestic Risk Factors, I determined that a number of the highest risk factors were evident in this report, including the status of the relationship as evidenced by a recent separation, an escalation in abuse as evidenced by stalking behaviour, and stalking behaviour as well as numerous other risk factors including the children’s exposure to this behaviour, the couple’s history of domestic violence history [sic] and court orders being present/being violated. Additionally, a report had been made on June 28, 2019 regarding a lack of supervision of the children while in Mr. S.’s care.

I determined that both child protection concerns needed to be assessed. [ 74 ] As a result of these interviews, Ms. Milholm testified that Ms. F.’s alcohol use did not meet the threshold of a s. 13 child protection concern; however, the threshold risk for domestic violence, in her assessment, had been met. [ 75 ] Ms. Owen was asked about the August 6, 2019 meeting in Mr. S.’s interrogatory questions. She described his demeanour at that meeting as follows: [4] During the meeting on August 6, 2019, I found Mr. S.’s behaviour to be intimidating. Mr.

S. became agitated as the meeting progressed and Social Worker Milholm and I attempted to address the child protection concerns. The volume of his voice increased, he leaned across the boardroom table and alleged that Social Worker Milholm had brought him into the office under false pretences. Mr. S. continued to lean across the table and was staring at myself without blinking. Mr. S. then stood up and began to walk around the boardroom table at which point I stood up as I was uncertain what he was doing. At this time, Mr. S. left the boardroom and subsequently the office.

We determined that we would lock the main office door based on his escalated behaviour. [ 76 ] Based on Mr. S.’s behaviour during this meeting, Ms. Owen stated that she was worried for Ms. F.’s safety and notified the RCMP of her concern. [ 77 ] The next day (August 7, 2019), Mr. S. was arrested, charged again with criminal harassment of Ms. F. He was taken into police custody. [ 78 ] Ms. F. describes the factual circumstances in relation to this incident in her April 3 rd affidavit. She saw Mr. S. driving in the vicinity of the children’s daycare around pick-up time and deposes:

[20] … E.’s daycare is not in a business area and there are small side roads that when I travelled when I would leave the house to pick her up. Mr. S. was lurking around the same back roads. Given that he had a tracking device on my vehicle previously he was aware of the times and the routes I would normally take. I continued to pick up B. from his daycare downtown and turned my dash camera on. Again, I saw Mr. S. looping around the areas of the daycare. I called the RCMP again and filed a report. [ 79 ] Given the circumstances of Mr. S.’s two recent arrests, Ms. Owen and Ms.

Milholm arranged a complex case meeting with Lee Vang, Acting Director of Practice, and Shashe Chaudhry, Director of Operations, to plan on next steps as Mr. S. was due soon to be released on bail. At this meeting, it was decided that the safety plan would seek Mr. S.’s consent to temporarily forgo his parenting time with the children to allow the MCFD time to further investigate the protection concerns. [ 80 ] On August 15 th , Ms. Milholm and Ms. Owen set-up a telephone meeting with Mr. S. through the pre-trial detention centre to discuss this safety plan. Ms. Milholm testified that Mr.

S. was unwilling to discuss the protection concerns they identified, that he denied any wrongdoing, and stated he was unwilling to forgo his upcoming parenting time with the children. She described Mr. S.’s demeanour as agitated during the call. [ 81 ] Mr. S. ended the call by hanging up the telephone. Neither witness recalls Mr. S. requesting an opportunity to speak with counsel as the reason for ending the call. Ms. Milholm testified that they were unable to reconnect the call with Mr. S. [ 82 ] Ms. Owen explains the purpose of the August 15 th telephone call with Mr. S., in the following answer to Mr.

S.’s interrogatories: [21] When Social Worker Milholm and I contacted Mr. S. to discuss his upcoming access with his children, we indicated that we require time to make an assessment regarding the children's overall safety given the complexity of changing circumstances of the situation. Mr. S. had been arrested for criminal harassment based on his having been observed multiple times by Ms. F. while she drove with the children. This behaviour demonstrated an escalation in the frequency/intensity of violence towards Ms. F. while she was with the children. I was also concerned about how Mr.

S. might react to the fact that he had been arrested once released, and the potential impact this would have on his children. … [ 83 ] Ms. Owen and Ms. Milholm were each concerned about the risk potential for an escalation in domestic violence given Mr. S.’s refusal to forgo his upcoming FLA parenting time with the children and their inability to assess his mental health status before his release. As a result of these concerns, Ms. Owen and Ms. Milholm consulted again with Ms.

Chaudhry, and a decision was made to formally remove the children under s. 30 of the Act while allowing them to remain in their mother’s care pending a presentation hearing. [ 84 ] By operation of the Act , the removal served to suspend the parenting time between the children and Mr. S. under the FLA order. [ 85 ] On August 16 th , Mr. S. was released from custody on this charge and was placed on a recognizance of bail with multiple protective conditions, including electronic monitoring. [ 86 ] Following his release, Mr.

S. began having twice weekly professionally supervised visits with the children. [ 87 ] In November 2019, following a pre-trial voir dire on the criminal harassment charge out of Penticton, the trial judge excluded the evidence found as a result of the police search of Mr. S.’s vehicle. Mr. S. was acquitted of this charge. [ 88 ] Mr. S. brought an access application for holiday access to the children on December 19, 2019. The application did not proceed as the parties were able to resolve the issues by agreement, wherein the Director agreed to an increased access

schedule for Mr. S. to see the children with his mother and sister supervising. In her answers to Mr. S.’s interrogatories, Ms. Owen states: [28] … While organizing the

schedule both Social Worker Milholm and I discussed the need for access to be supervised by Ms. E.S. and Mrs. R.S. While organizing the

schedule both Social Worker Milholm and I discussed the need for access to be supervised. We clarified specifically with Mrs. R.S. that the supervisor’s duties would not just include pick up and drop off from a pre determined [sic] location, but that they would need to be present when Mr. S. was with his children. [ 89 ] Mr. S., R. and E.S. each depose that they had a good rapport with the children and that children enjoyed their extended visits with their father over Christmas. Ms. F.’s evidence is the children were frequently out of sorts after these visits. [ 90 ] Ms.

Milholm testified there were two separate incidents over the Christmas break where the children were unsupervised in Mr. S.’s care. [ 91 ] The first incident occurred on December 30 th , when Mr. S. took the children to [omitted for publication] to burn the Christmas tree, which was a family tradition. MCFD’s concern was this outing was not supervised by R. or E.S. MCFD learned about Mr. S.’s unsupervised outing from Ms. F. Ms. Milholm then interviewed both children who confirmed the outing with their father. [ 92 ] On January 2 nd , Ms.

Milholm met with R. and E.S. to discuss this outing and to discuss MCFD’s expectations regarding their role as supervisors. Ms. Milholm accepted Mrs. S.’s explanation that neither she nor E.S. recollected their conversation at the courthouse on December 19 th about the supervision parameters, stating that she felt that both R.S. and E.S. were “sincere” in providing this explanation. Ms. Milholm agreed not to make any changes to the upcoming visits. This expectation was also relayed to Mr. S. by Ms. Milholm in a telephone call that same day. [ 93 ] Also on January 2 nd , Mr.

S. scheduled an appointment for the children to meet with his treating psychiatrist, Dr. Bijou Mathew. E.S. accompanied Mr. S. and the children to the appointment but was not present for the meeting between the children, Mr. S., and Dr. Mathew.

[ 94 ] Mr. S. explained his reasons for taking the children to see Dr. Mathew in the following answers to the Director’s interrogatories: [28] … I believe that MCFD does not want any independent external people or evidence involved - just their circle all believe Miss F. and disregard anything I am saying. Dr. Mathew told MCFD that the children were being emotionally abused. Ms. Milholm confirmed this.

Even if I was in need of supervision, a medical professional should suffice. [ 95 ] And: [31] The children have made many many comments about bullying, physical and sexual abuse that have gone completely ignored by Ms. F. since our separation. Along with these issues I have provided services for both my children for medical support and educational needs by MCFD social worker Kirsten Milholm's own testimony the children had no support since my care towards these things. I am doing my duty and job as a parent to provide the best possible guidance and support for my children. [ 96 ] (Ms.

Milholm testified that at the time of the appointment with Dr. Mathew, she had not received Mr. S.’s letter to MCFD outlining these concerns about the children.) [ 97 ] Mr. S. did not disclose the children’s appointment with Dr. Mathew to MCFD and Ms. Milholm found out about it the next day. [ 98 ] In a letter to Mr. S.’s counsel dated January 10, 2020, the Director’s counsel stated two concerns about this meeting with Dr. Mathew. First, E.S. was not present during the appointment.

Second, and more importantly: The visit to the psychiatrist is further concerning as it was not relayed to the Director, nor is it considered to be an appropriate activity to be engaging in during his access time. [ 99 ] There were three further incidents of concern to the Director raised by counsel in her January 10 th letter, each of which were described by Ms. Milholm in her testimony. [ 100 ] First, Ms. Milholm received a report from Mr. S.’s probation officer on January 7 th of his plan to pick up the children after school after he had been advised that his visit was cancelled by Ms. Milholm. (Mr.

S. was shortly thereafter instructed by his probation officer not to leave his home.) [ 101 ] Second, Ms. Milholm received another report from Mr. S.’s probation officer on January 9, 2020 that Mr. S. informed the children that Ms. F. sent him to jail and she kept him away from them. [ 102 ] Third, Mr. S. confirmed that he made this statement to his probation officer in a telephone call with Ms. Milholm the next day and that he had told the children the “truth”. When asked by Ms. Milholm what was meant by that statement, Mr. S. stated he told the children that, “K. [Ms.

F.] was the reason the children were being kept away from Daddy”. [ 103 ] In light of these concerns, the Director terminated Mr. S.’s further access visits with the children. His visits reverted back to professionally supervised visits two hours twice per week at the access centre until mid-March when the public health emergency was declared due to the COVID-19 pandemic. [ 104 ] The Director’s decision was communicated to Mr. S. through counsel’s January 10 th letter. [ 105 ] On March 3, 2020, Ms.

F. brought a further ex parte application in the FLA proceeding for a protection order, which was granted by Judge Dion for a 12-month term. This order restricted Mr. S.’s contact with Ms. F., prohibited Mr. S. from attending Ms. F.’s residence, place of employment or school, and ordered Mr. S. not to possess any weapons, or any knives (except for preparing and consuming food). [ 106 ] On March 9, 2020, Mr. S. appeared before Judge McQuillan in criminal remand court and entered into a second peace bond to resolve the August 7, 2019 criminal harassment charge (where Mr. S. was seen by Ms.

F. driving slowly around the children’s daycare at pick-up time). [ 107 ] Judge McQuillan placed Mr. S. on a 12-month recognizance, with several protective conditions, including a condition that Mr. S. attend any intake, assessment or counselling as directed by his probation officer that included counselling or programming for anger management, violence prevention, spousal abuse prevention, and parenting skills. DISCUSSION [ 108 ] The issues before me are whether: (

a) the Director had “objectively reasonable grounds” to believe the children were in need of protection at the time of removal on August 15, 2019; (

b) there were “objectively reasonable grounds” to support the Director’s continued belief that the children were in need of protection; and (

c) there were no less disruptive measures available to adequately protect the children than an interim supervision order. M.H., supra , at para. 30.

[109] Mr. S. raises numerous complaints against the Director for unfair treatment by cancelling his access visits and by denying himunsupervised access to the children. He asserts the Director took a “very interested and intrusively engaged” role in his criminalproceedings, and was biased in favour of Ms. F. in their decision-making. Mr. S. also contends that the Director ignored his statedconcerns that Ms. F.’s alcoholism puts the children at risk. For these reasons, Mr. S. claims the Director “failed to meet its duty as adelegate under the Act”. [110] Notwithstanding these complaints, it is unclear from Mr.

S.’s submission what relief he seeks against the Director, or how thesecomplaints relate to the narrow issues I am required to decide at a presentation hearing set out above. [111] Mr. S. does not seek an order to have the children returned to his custody. Rather, what he seeks is the following relief: (

a) An unsupervised access

schedule that equates to the shared parenting time

schedule from Saturday to Tuesday every week,similar to the FLA order; (

b) Parenting time week on week off with exchanges facilitated in public or with the assistance of third parties such as Mr. S.’sfamily members. [112] The FLA matter is not before the Court as this is a presentation hearing in a child protection proceeding, and the remedy for“parenting time” is not a remedy that is available under the Act. The orders that are open to the Court are the orders under s. 35(2), andan order for access under s. 55 of the Act once an interim order is made. [113] I will now examine these three issues. (

i) Were there “objectively reasonable grounds” to support the Director’s belief the children were in need of protection at thetime of removal? [114] Mr. S.’s position is summed up by the following answers to the Director’s interrogatories: [7] MCFD has raised false allegations all stemming from Miss F. or Ms. F.s [sic] false statement to police the only domestic violence thatever happen [sic] in front of my kids was from Ms. F. not me. … [9] … I have never committed domestic violence nor do I have a criminal record committing to Domestic violence. I have positiverelationships with my previous partners.

I have never gone through this type of a situation after a break-up. [115] On the authority of B.B., supra, Mr. S. invites the Court to weigh the evidence and make adverse credibility findings against Ms.F. and reject the Director’s evidence as “manifestly wrong, untrue, or unlikely to have occurred”. [116] The incident reports received by MCFD in the period between August 2018 and August 15, 2019 involved stalking behavioursthat involved multiple sightings of Mr. S. in close proximity to Ms. F. when she was either alone or when driving with or picking up thechildren. One of these incidents involved Mr.

S.’s unauthorized entry into the former family home on April 1, 2019 that he rationalizedwas necessary for safety reasons to check the gas lines. [117] Most, if not all, of these incidents occurred when Mr. S. was bound by an FLA protection order, a peace bond, and/or bailconditions that prohibited contact with Ms. F. [118] The factual circumstances involving Mr. S.’s July 2nd arrest in Penticton were reported to MCFD. He admits to the fact of hisarrest by police and to being charged with criminal harassment. [119] Because Mr. S. was ultimately acquitted of the charge, Mr.

S. submits that the Director cannot rely on the circumstances inrelation to this charge as grounds to support the removal. He submits that to do so, constitutes a breach of Mr. S.’s rights under theCanadian Charter of Rights and Freedoms including the presumption of innocence, and that such evidence is accordinglyinadmissible. [120] Mr. S. submits, at p. 9 of his written submission: Being charged with a crime should not be used against Mr. S. as it is his right under human rights legislation and the Charter not to betreated differently due to being charged with an offence. [121] Mr.

S. does not cite any authority in support of this proposition. Mr. S. does not outline the remedy he seeks, but alleges a breachof his rights and urges the Court to make this finding. [122] A presentation hearing is not a trial. It is akin to a preliminary inquiry: R.G. v. A.P., supra, at para. 4. Preliminary inquiryjustices have a specific statutory function determined by the Criminal Code to commit an accused to trial if there is admissible evidencethat could, if believed, result in a conviction. Preliminary inquiry justices do not have the general powers of a trial judge to determineCharter violations: R. v.

Hynes, 2001 SCC 82 , 2001 3 S.C.R. 623. [123] The presentation hearing has a specific statutory purpose under the Act and the role of a judge presiding at a presentationhearing is to decide whether there is objective evidence that, if believed, could lead to a finding that a child is in need of protection: R.G.,supra, at para. 4. Thus, a presentation hearing judge is without jurisdiction to decide Charter issues, as those are, on the authority of R.v. Hynes, matters that are within the general powers of the protection hearing judge to decide. [124] The circumstances surrounding the report of Mr.

S.’s arrest on July 2nd for criminal harassment of Ms. F. caused the Director

concern about the risk of escalating violence between Ms. F. and Mr. S. and its impact on the children. This was, however, not the only incident that caused the Director to have this concern. [ 125 ] The evidentiary record confirms that two ex parte protection orders were made by judges of this Court against Mr. S. The first protection order was made by Judge Dossa on March 19, 2019. This order was superseded by Judge Dion’s protection order made on March 3, 2020. Judge Dion’s order to date has not been set aside and Mr. S. continues to be bound by that order. [ 126 ] Protection orders are governed by

Part 9 of the FLA and are intended to prevent family violence. Section 183(2) sets out the circumstances under which a protection order can be issued against a family member:

(2) A court may make an order against a family member for the protection of another family member if the court determines that (

a) family violence is likely to occur, and (

b) the other family member is an at-risk family member. [ 127 ] Family violence is broadly defined in s. 1 of the FLA and encompasses physical abuse, sexual abuse, psychological abuse and emotional abuse of a family member. In the case of a child, family violence is further defined to include indirect or direct exposure to family violence. These terms are given a liberal meaning within the definition

section of the FLA with the intent to provide protection to “at risk” family members. [ 128 ] Protection orders have potential criminal consequences if they are not followed and are not granted lightly. In order to make the protection order, Ms. F. would have been required to lead evidence under oath articulating the basis for her fears of violence and the threat to her safety. The hearing judge would have to be satisfied on the strength of that evidence to make the finding that family violence was likely to occur in order to grant the order.

The fact that two protection orders were made by judges of this Court confirms that Ms. F. met the evidentiary requirements that support the orders. [ 129 ] The evidentiary record also confirms that Mr. S. entered into two peace bonds made pursuant to s. 810 of the Criminal Code . The purpose of the peace bond applications were to resolve Mr. S.’s outstanding breach charges of Judge Dossa’s protection order. [ 130 ]

Section 810 of the Criminal Code allows an information to be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person: (

a) Will cause personal injury to him or her or to his spouse or common-law partner or child or will damage his or her property; … [ 131 ] Section 810(3) states:

(3) If the justice or

summary conviction court before which the parties appear is satisfied by the evidence adduced that the person on whose behalf the information was laid has reasonable grounds for the fear, the justice or the court may order that the defence enter into a recognizance … to keep the peace and be of good behaviour for a period not more than 12 months. [ 132 ] In his response to the Director’s interrogatories, Mr. S. acknowledges that he entered into a “ s. 810 peace bond” in criminal remand court on March 9, 2020 before Judge McQuillan. He explains his reasoning for doing so: [5] On March 3, 2019 I was served with an FLA

section 810 piece bond [sic] from Ms. F. on March 9 wanting to end my incarceration I entered into another 810 peace bond. The Maple Ridge Allegations with the fabricated evidence from Miss F. and the active involvement from team leader Jen Owen and social worker Kirsten Milholm I was tired of fighting and looking at more than $10 K more to go to trial so I just gave up. [ 133 ] Notwithstanding Mr.

S.’s underlying motivation for entering into this peace bond, the fact remains he sought the peace bond to resolve the outstanding breach charge (in relation to the August 7, 2019 incident and breach of the no contact provisions of Judge Dossa’s protection order). He would have either admitted to the factual circumstances led by the Crown that underpin the granting of the recognizance, including the admission that Ms. F. had reason to fear that he would cause her “personal injury”, or Judge McQuillan would have made factual findings on the evidence that was led. Mr.

S. continues to be bound by the recognizance. [ 134 ] The Director submits that given MCFD’s history of prior involvement with the parents, Mr. S.’s cumulative behaviours constituted an escalation in domestic violence that not only caused Ms. F. to fear for her safety but further put the children at risk of emotional and physical harm, had they not been removed on August 15, 2019. [ 135 ] On a careful consideration of the evidence, I am satisfied that the Director has established the requisite evidentiary foundation, that includes two FLA protection orders and two peace bonds, to support this belief.

It is therefore my opinion that the documented reports in the Report to Court and the sequence of events as I have summarized above created the objective and reasonable basis for the Director’s belief that the children were in need of protection at the time of removal, and thus, the first part of the M.H. test is met. [ 136 ] Thus, I do not accept Mr. S.’s contention that the Director’s decision to remove the children was manifestly wrong, untrue or unlikely in light of the evidentiary record before me. Therefore, I decline Mr. S.’s invitation to make adverse credibility findings against Ms.

F. and the Director. (ii) Were there “objectively reasonable grounds” to support the Director’s continued belief the children are in need of protection? [ 137 ] Mr. S.’s unsupervised trip with the children to [omitted for publication] on December 30 th , and his decision to take the children to

see his treating psychiatrist on January 2 nd , are some of the added grounds for the Director’s continued belief the children were in need of protection. [ 138 ] Additionally, the Director relies on documented reports from Mr. S.’s access visits on September 14, September 21, and October 5, 2019 that record questions asked of the children by Mr. S. about their mother and their new home. [ 139 ] The Director also relies on a report from Mr. S.’s October 24, 2019 access visit that Mr. S. had a “whispered conversation” with B. after the supervisor stepped out of the room. [ 140 ] Ms. Milholm testified that Mr.

S. advised the children “to keep secrets” and not to tell Ms. F. what happened at visits. She also testified that the Director had concerns about Mr. S.’s comments to the children during supervised visits that blame the MCFD and their mother for keeping him away from them. Ms. Milholm testified that these blaming comments create distrust between the children and their social workers, and adversely impact the ability of the Director to ensure their safety. [ 141 ] Notwithstanding Mr.

S.’s denial of these reports, these incidents were documented and form part of the factual foundation for the Director’s continued belief that the children are in need of protection. [ 142 ] Moreover, Mr. S. has not engaged in any programming recommended by MCFD to address the protection concerns. He denies having a history of domestic violence and is unwilling to participate in recommended programming, such as the “Caring Dad’s” parenting group. The basis for his refusal is found in his response to the Director’s interrogatories, Mr.

S. states: [8] I have not been provided a family plan I’ve been asked to admit to Domestic violence so MCFD could provide services I would call that blackmail not a family plan. [ 143 ] In my view, Mr. S.’s refusal to engage in programming as illustrated by this answer is troubling and further reinforces the Director’s belief that his behaviour and attitude towards Ms. F. puts the children at risk of physical or emotional harm. [ 144 ] I find that these post removal events collectively create an objective and reasonable belief in the Director that the children continued to be at risk of harm.

Thus, the Director has met the second part of the M.H. test. [ 145 ] Accordingly, the Director has met the first prong under s. 30(1) of the Act in that there were objectively reasonable grounds for the Director to believe that the children were in need of protection and that these grounds continued to the date of the presentation hearing. [ 146 ] I will now turn to the second prong under s. 30(1)(b), that is whether there were any less disruptive measures available to adequately protect the children at the time of removal. (iii) Were there any less intrusive measures than removal? [ 147 ] The Director submits that less disruptive measures to avoid removal were considered and attempted by MCFD in the form of the safety plan in which Mr.

S. would have voluntarily forgone his upcoming parenting time with the children following his release from custody in mid-August 2019 while the MCFD continued to investigate the protection concerns. Ms. Milholm and Ms. Owen testified that Mr. S. was not willing to agree to such a plan. [ 148 ] Nonetheless, Ms. Milholm testified that the option remained to make the removal the least disruptive as possible on the children by having them remain in their mother’s care under the Director’s supervision.

This avoided a foster placement. [ 149 ] I agree with the Director’s submission that there were no less intrusive alternatives than removal particularly given Mr. S.’s post- removal behaviours, his history of non-compliance with court orders, and his unwillingness to engage in recommended programming or a safety plan.

Accordingly, I find that by having the children remain in the care of their mother under the supervision of the Director was the least intrusive measure that is in keeping with the guiding principles of s. 2 of the Act . [ 150 ] Therefore, I find that the third part of the M.H. test and the second prong of s. 30(1)(

b) of the Act are met. INTERIM PLAN OF CARE [ 151 ] The Director seeks an order pursuant to s. 35(2)(

b) of the Act that the children remain in Ms. F.’s care under the supervision of the Director. Under the proposed plan of care, Mr. S. would continue to have reasonable access to the children at the discretion of the Director. [ 152 ] Ms. F. continues to support the Director on this application and agrees that the interim supervision order is necessary and appropriate. She further agrees that Mr. S. should have reasonable access to the children, provided that his access is supervised. [ 153 ] As noted above, Mr. S. challenges Ms. F.’s suitability to care for the children due to alcohol misuse. Ms. Owen and Ms.

Milholm each testified that Mr. S.’s complaints were investigated and the conclusion reached was that the concern did not reach the “s. 13” (child protection) threshold. This conclusion was based on interviews with both parents, the children (neither of whom reported any problematic incidents of drinking by either parent), and collateral witness accounts of Ms. F.’s frequent sightings at the liquor store. [ 154 ] Therefore, applying the principles in S.M. and B.B., I accept the Director’s evidence that the issue of Ms.

F.’s drinking was investigated and determined not to meet a child protection concern. [ 155 ] Additionally, Mr. S. contends that Ms. F. allowed the condition of the home to deteriorate and become infested with rodents, arguing that this demonstrates that Ms. F. is unable to care for the children. He relies on a series of undated interior close-up photographs of the home that he took on October 1, 2019 (the day he took possession) to corroborate this claim. He deposes that he reported his

concerns and disclosed the photographs to MCFD and that MCFD failed to investigate his complaints. [ 156 ] These claims are disputed by Ms. F. She deposes that she would not have allowed the children to live in such conditions as claimed by Mr. S. and she relies on a series of undated interior photographs showing a clean home that she took around the time she moved out of the family home in mid-September 2019. [ 157 ] Mr. S. also deposes that Ms. F. failed to repair the broken front window of the home after a rock was thrown through the glass in mid-August 2019.

It is undisputed that the window was not replaced before Mr. S. took possession of the home on October 1, 2019. [ 158 ] Ms. Milholm testified that she conducted a home visit and made personal observations of a clean and tidy home, but did note that the front living room window was boarded up. Ms. Milholm also stated in her testimony that the children appeared to be happy and well cared for in Ms. F.’s care during this home visit. [ 159 ] However, Ms. Milholm acknowledged in cross-examination a conversation she had with an access supervisor who reported that rat feces were found in a bedroom in Ms.

F.’s home but saw no evidence of “rats eating food”. [ 160 ] The evidence of Mr. S. and Ms. F. on these points cannot be reconciled in this

summary proceeding. Therefore, applying the principles in S.M. and B.B., I accept Ms. Milholm’s testimony based on her personal observations of the condition of the home and her observations of the children during the home visit. [ 161 ] In my view, Mr. S.’s concerns about the safety risks presented by Ms. F.’s drinking and household care can be managed under a supervision order through terms and conditions, such as those proposed by the Director, which Ms. F. has agreed to. These conditions include: home visits and inspections by the Director or its agents, that Ms.

F. engage in and continue with counselling, and that the Director be allowed to meet privately with the children when deemed necessary. [ 162 ] Accordingly, I order, pursuant to s. 35(2)(

b) of the Act, that the children remain in Ms. F.’s care under the supervision of the Director. [ 163 ] Ms. F. will be bound by the following terms and conditions under this Order:

(1) Ms. F.: (

a) must allow the Director or the Director’s agents to visit and inspect the home and meet directly and privately with 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; (

b) will continue to meet with her Social Worker as directed by the Social Worker in order to ensure services such as speech therapy, counselling, and any other services as recommended by the Director, are obtained; (

c) must ensure that the children receive medical check-ups and must follow-up on all medical needs of the children as they arise, following all reasonable medical advice given by medical professionals; (

d) will attend meetings and appointments as required and requested by any service providers for the children; (

e) will ensure that the children are enrolled in, and regularly attending daycare; (

f) must continue to attend appointments with her counsellor and follow all recommendations as suggested by the counsellor; (

g) will engage in all safety provisions recommended by the Police and Victim Services Program, or as recommended by the Director; and (2) the Director may remove the children if Ms. F. fails to comply with the above terms and conditions. [ 164 ] The relief sought by Mr. S. is essentially a request for unsupervised access on a fixed

schedule similar to what he received under the FLA order. [ 165 ] In support of Mr. S.’s request for unsupervised access, Mr. S. relies on Dr. Mathew’s letter to counsel dated November 29, 2019. This is a brief letter and not a medical legal report. It does provide some current evidence regarding Mr. S.’s mental health status. However, I note that the Director has not had the opportunity to have Mr. S. assessed. [ 166 ] In this letter, Dr. Mathew reports that Mr. S. is in a state of remission from a major depressive disorder and was “functioning well” as of the time of writing. He further reports that Mr.

S.’s “anger issues”, have “eased off completely to the background” at present. Finally, Dr. Mathew reports that Mr. S. “… does not present with significant brain damage involving neuro deficits …“ [ 167 ] Mr. S. also relies on Jeff Beyak’s testimony, and the affidavit of his former landlord V.M. Mr. Beyak was a Ministry approved access supervisor who provides a positive account of Mr. S.’s interactions with the children in his home. Ms. M. also provides a similar positive view of Mr. S. with his children. [ 168 ] The Director opposes unsupervised access visits and submits that Mr.

S.’s access to the children should remain at the discretion of the Director and that the visits continue to be professionally supervised. The reason is because of Mr. S.’s contentious separation with Ms. F. which the Director submits affects his judgment and decision-making with respect to the children. [ 169 ] The Director points to the following reasons to support this position:

(1) Mr. S. has not followed MCFD instruction regarding supervised visits. This refers to the unsupervised trip to [omitted for publication] on December 30, 2019;

(2) Mr. S.’s failure to follow court ordered “no-contact” conditions that resulted in Mr. S. entering into two peace bonds;

(3) Mr. S.’s decision to take the children to

see his psychiatrist during an access visit. This was considered by the Director to be an unsuitable activity for the children; (4) concerns that Mr. S. would engage in inappropriate questioning of the children involving their mother based on documented reports; and

(5) Mr. S.’s refusal to engage in recommended programs, including those to improve his parenting skills. [ 170 ] I concur with the Director’s submission that in order to manage these risks, Mr. S.’s access visits will continue to be supervised in the interim period pending the conclusion of a protection hearing. Mr. S. will have liberty to re-apply to court to seek unsupervised access. [ 171 ] I have also concluded from my review of the evidence that R.S. and E.S. should be given a second chance to supervise Mr. S.’s access visits given their close bonds with the children and Mr. S.

This would allow the visits to take place in a “more natural setting” such as Mr. S.’s home, or elsewhere in the community. I am satisfied that any potential risks can be effectively managed by the Director with written conditions outlining the supervisor’s duties and expectations. [ 172 ] The approved access supervisors are thus, R.S., E.S., or a professional access supervisor approved by the Director or his agent. [ 173 ] I agree with counsel for Mr. S. that the current regime of two-hour access visits twice weekly at an access centre is inadequate. This does not allow Mr.

S. to build a positive relationship with the children, particularly given their young ages and stages of development. [ 174 ] I am also mindful of the fact that Mr. S.’s weekly visits to the access centre were curtailed due to the COVID-19 pandemic. Although arrangements for video/telephone access to the children were contemplated and in progress, these measures are poor substitutes for face-to-face contact. [ 175 ] Accordingly, I further order that Mr. S. will have reasonable access to the children at the discretion of the Director, subject to the following terms: (

a) Mr. S. will have weekly supervised access visits with the children on Tuesdays and Thursdays, for a maximum four hour time block. These visits will begin on June 30, 2020; (

b) Mr. S. will have supervised access visits with the children one day on the weekend, for a maximum 10 hour time block. These extended visits will begin on either Saturday June 27, 2020 or Sunday, June 28, 2020. The day of the visit is to be arranged in advance with the Director or his agent; (

c) Mr. S. will be entitled to make-up time for any missed access visits in the event of holiday plans or special occasion events with Ms. F.; (

d) The location and times for pick-up and drop offs are to be arranged in advance with the approval of the Director; (

e) Further access visits with the children, including overnight visits, will be at the discretion of the Director, or upon further order of the Court; (

f) Family supervised access visits will not begin until Mr. S., R.S., and E.S. have each received and agreed, in writing, to the terms and conditions required by the Director for such visits; (

g) The terms and conditions for family supervised access will include terms allowing the Director or its agent to conduct periodic home visits and home inspections, to periodically meet with the children, and any such further conditions as the Director, in its discretion, deems appropriate to manage the protection concerns and safety risks of the supervised access visits by family members; (

h) The current access regime will continue until the signed agreements are in place; (

i) The Director may temporarily suspend or terminate all further family supervised visits if Mr. S., R.S., and E.S. fail to comply with the terms and conditions required by the Director for family supervised access; (

j) In the event the Director terminates all further family supervised visits, the access

schedule will revert to the pre-COVID

schedule of two visits per week professionally supervised on Tuesdays and Thursdays for two hours each visit; (

k) Mr. S. will have liberty to apply to court to reinstate family supervised visits. CONCLUSION [ 176 ] In conclusion, I grant the Director’s application pursuant to s. 35(2)(

b) of the Act . The children will remain in the care of Ms. F. under the supervision of the Director, pending the conclusion of a protection hearing. Mr. S. will have reasonable access to the children at the discretion of the Director, subject to the access provisions set out in these Reasons. [ 177 ] Mr. S.’s access visits with the Children will be supervised. The approved access supervisors are his mother R.S., his sister E.S., or a professional access supervisor approved by the Director or his agent. [ 178 ] Mr. S.’s application for access pursuant to s. 55 of the Act is adjourned, with liberty to Mr. S. to re-apply after 60 days from the date of this order. __________________________

The Honourable Judge D. Dorey Provincial Court of British Columbia CORRIGENDUM - Released August 27, 2020 In the Reasons for Judgment dated June 25, 2020, please note the following: [1] The Reasons for Judgment have been edited for publication to remove personal information that would identify the parties and their family members and to correct minor typographical errors that were made in the filed document. [2] Additionally, the case reference to the “MM test ” in paragraphs 135, 144, and 150 of the Reasons for Judgment are corrected to read the “M.H. test” as follows: (

a) Paragraph 135 should read: [135] On a careful consideration of the evidence, I am satisfied that the Director has established the requisite evidentiary foundation, that includes two FLA protection orders and two peace bonds, to support this belief. It is therefore my opinion that the documented reports in the Report to Court and the sequence of events as I have summarized above created the objective and reasonable basis for the Director’s belief that the children were in need of protection at the time of removal, and thus, the first part of the M.H. test is met. (

b) Paragraph 144 should read: [144] I find that these post removal events collectively create an objective and reasonable belief in the Director that the children continued to be at risk of harm. Thus, the Director has met the second part of the M.H. test. (

c) Paragraph 150 should read: [150] Therefore, I find that the third part of the M.H. test and the second prong of s. 30(1)(

b) of the Act are met. __________________________ The Honourable Judge D. Dorey Provincial Court of British Columbia