DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 233

Citation: British Columbia (Child, Family and Community Service) v. S.S. 2020 BCPC 233 Date: 20201112 File No: 1845898 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: K.U. , born [ omitted for publication ] D.U. , born [ omitted for publication ] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.S. PARENT AND: K.R.U. PARENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. KEYES Counsel for the Director: B. D.

Levine, appearing by teleconference Counsel for the Mother S.S.: C. B. Hutchinson, as agent for M. Reed Counsel for the Father K.R.U.: C. B. Hutchinson, appearing by teleconference Place of Hearing: Prince George , B.C. Date of Hearing: October 8, 2020

Date of Judgment: November 12, 2020 [ 1 ] THE COURT: S.S. and K.R.U. are the parents of K.U. and D.U., aged [omitted for publication] respectively. On July 9, 2020, the Director removed the children from the parents, but placed them back in the care of their mother, S.S. [ 2 ] This matter was before the court for a contested presentation hearing on October 8, 2020. The father, K.R.U., has had no access to the children since their removal. The father says there were no grounds to justify the removal and seeks to have the children returned to the care of both parents.

Background [ 3 ] According to the report to court filed July 14, 2020, the Ministry had been involved with the mother, S.S., from the time she was 16 years old in [omitted for publication] . In 2017, the RCMP contacted MCFD with concerns about S.S. They had attended at the home of S.S. and K.R.U. due to a complaint that K.R.U. was not allowing S.S. to leave the home, but it turned out when they got there that S.S. was suffering from postpartum depression, not taking her medications, and was seeking to take their baby out of the home.

The father, K.R.U., was concerned for the baby's safety, so ultimately the baby, K.U., was left in K.R.U.’s care and S.S. left. [ 4 ] The parents addressed the issues themselves with S.S. reconnecting with counselling, so the Ministry took no action. [ 5 ] RCMP were again called in June 2018, due to a complaint by S.S. Both parents had fallen to the ground after a pushing incident. When the police attended, they found that K.R.U. was somewhat intoxicated by alcohol and caring for the baby alone. S.S. was not there.

The house was a mess with clothes and garbage on the floor. [ 6 ] In July [omitted for publication], the RCMP were again called to the home of S.S. and K.R.U. S.S. had attacked K.R.U., hitting and punching him, scratching him, and ripping his shirt while he held the baby. S.S. was charged with assault and placed on conditions of no contact with K.R.U. [ 7 ] In September 2018, S.S. called the police stating that K.R.U. was in her home threatening suicide. When the police arrived, K.R.U. had only marks on his wrists as the knife was dull.

He was transported to hospital and committed. [ 8 ] In November [omitted for publication], the couple’s second child, D.U., was born. K.R.U. was present at the birth with permission of MCFD. However, the report to court indicates that “[he] require[d] supervised access to the children due to his repeated aggression in [the] presence of baby (K.U.) and concerns about his mental health”. This remark is in direct contradiction to the information contained within the report to court.

There is no allegation and certainly no evidence anywhere in the report concerning any aggression prior to November [omitted for publication] by K.R.U. in the presence of the baby. The only evidence of aggression in the presence of K.U. to that point was S.S.’s attack on K.R.U. [ 9 ] The Director obtained an interim supervision order on December 10, 2018, which was ultimately set for trial in June 2019. That interim supervision order required that K.R.U.’s access to his children be supervised. [ 10 ] There was a further incident between the parents in April 2019.

The report to court states that MCFD received a police report indicating that S.S. complained to the police that K.R.U. had forced his way into her home intoxicated and had been verbally aggressive to a female house guest. She had locked herself in her car, the complaint read, and she complained to the police that K.R.U. had damaged her car. K.R.U. was arrested and assessed at hospital and released without any charges.

K.R.U. admitted in his testimony at the hearing before me that he was present in her home on that occasion, but denies forcing his way in or hitting her car. [ 11 ] At the end of May 2019, the CFCSA file appears to have been resolved in mediation, which included that the parties consented to a further interim supervision order on June 4, 2019, which was to expire five months later on November 4, 2019. The details of the order were as follows: The children were to be in the interim custody of their mother for a period of five months expiring November 4, 2019, under the supervision by the Director.

The terms of supervision included that K.R.U. was not to reside in the home with the mother and children, that his access to the children was supervised at the discretion of the Director, and that he engage in and complete services as agreed upon by the Director, and that neither parent subject the children to any verbal or physical violence. [ 12 ] No mention is made in the report to court of any services offered to or undertaken by K.R.U. There is no indication in the report that K.R.U. refused to engage with services prior to the expiration of the interim order in November 2019.

K.R.U.’s uncontested evidence was that he engaged with services. He testified that he met with a counsellor named Lynn through the safe house regarding anger management, that he met with a counsellor from Nechako Valley Community Services, and that he engaged with Amanda Goertz through Carrier Sekani Family Services with respect to his supervised visits with his children between January 2019 through September 2019. Ms. Goertz wrote a letter concerning those visits which became an exhibit in the hearing before me.

Her letter states: Parenting skill, safe boundaries and coping with conflicts were the goals that the social worker had requested during visits and Family Empowerment worker, Amanda Goertz can confidently say these goals were met and continued happening in each visit. [ 13 ] Ms.

McLaren, the social worker who testified at the hearing before me, admitted that the Ministry was aware that K.R.U. had engaged in such services, although she made no mention of the same in the report to court. [ 14 ] At the end of the five-month period, the Director sought no further supervision conditions and the supervision order expired on November 4, 2019.

According to the report to court filed in July 2020, in early 2020, S.S.’s family services file was closed “[as] she had demonstrated a sufficient amount of . . . change in order to mitigate the child protection concerns.” However, the report to court says that “K.R.U. did not demonstrate the change required by MCFD in order to resume unsupervised contact with [his] children.” [ 15 ] This is not a statement of fact. Rather, it is a conclusion or an opinion without any factual foundation mentioned in the report to court.

There is no mention in the report to court as to what the MCFD expectations were or how it was that K.R.U. did not fulfil them,

which is troubling given Ms. McLaren's evidence that she was aware that K.R.U. had engaged in services. The report to court states: As of the closure of the Family Service case, S.S. understood that K.R.U.'s access must be supervised moving forward. [ 16 ] Ms. McLaren testified that there was a note in the file dated in November 2019 that in future K.R.U.’s visits with the children were to be supervised by his mother. Ms.

McLaren confirmed that although it is typical for MCFD to write a letter of expectation for parents in such circumstances, no letter of expectation had been sent to either parent or their lawyers about this expectation. Ms. McLaren was unable to say whether this expectation had any end date. [ 17 ] On February 5, 2020, K.R.U. and S.S. appeared in Provincial Court in [omitted for publication] for a family case conference.

At that case conference, Judge McDermick made a final order with the consent of the parties which provided that both parents were guardians of the children, that the children would reside with S.S., and that K.R.U. would have parenting time every third weekend with additional parenting time as agreed by the parties.

Both parents were represented by counsel at the family case conference, the same counsel who appeared to represent them at the presentation hearing before me and who had similarly represented them in the earlier CFCSA proceedings culminating in the June 4, 2019, order by Judge Malfair. [ 18 ] K.R.U.’s uncontested evidence is that following the February 4, 2020, order, his parenting time with the children gradually increased until he regularly had the children for a week to two weeks at a time and on one occasion for three weeks, all with the agreement of S.S. Ms.

McLaren confirmed in her testimony that there were no reports of any problems whatsoever regarding this family from April 2019 until a police report dated June 2, 2020, was received by the Ministry. [ 19 ] K.R.U. testified that on June 2, 2020, he was having parenting time with the children, but asked S.S. if she would take them because he was having some problems that he wanted to work out. She agreed to take the children, but then immediately dropped them at his mother's home instead.

When K.R.U. discovered that the children were at his mother's, he called his mother to arrange to pick them up, to which she agreed. When he attended to pick up the children, he testified that he took the children and their belongings out to the car, and then his mother said some nasty things to him and they argued. [ 20 ] The report to court indicates that the police filed a report with MCFD on June 2, 2020, indicating that the RCMP had received a telephone call from S.S. in which she reported that she had received texts from K.R.U. that were suicidal in nature. Police attended and interviewed K.R.U.

The report to court states: The RCMP did not have enough evidence to apprehend K.R.U. under the Mental Health Act and the children were observed to be safe. [ 21 ] There was no involvement by MCFD until July 8, 2020, more than a month later. The Director admits that the account in the report to court that the involvement and removal occurred in June 8 through 9, 2020, is incorrect.

In fact, MCFD did not become involved or take any action on the June 2, 2020, police report until July 8, 2020. [ 22 ] According to the report to court, on July 8, 2020, Social Workers McLaren and Biddulph went to S.S.’s home to investigate the police report they had received. Although she told the social workers that she wanted full custody and did not want K.R.U. to have access to the children, she admitted she had consented to the FLA order which permitted unsupervised parenting time.

S.S. also informed social workers that the children were in K.R.U.’s care during times not set out in the FLA order. [ 23 ] The report to court states: It is unknown why MCFD was not contacted to speak to this FLA application as, in light of the outstanding child protection concerns with K.R.U., MCFD would have advised against such an order. [ 24 ] Social Worker McLaren signed the safety plan with S.S. that stated that: . . .

K.R.U. will have no face to face contact with the children, S.S. will call RCMP if K.R.U. shows up at her residence, and S.S. will allow K.R.U. access to the children on his third court appointed week if the Director has not made an alternative plan. [ 25 ] After making that safety plan with S.S., Social Workers McLaren and Biddulph attended at K.R.U.’s residence.

The report to court states that the social workers attempted to inform K.R.U. of the nature of the RCMP report, but it indicates he would not give them any details, simply stating that he had custody of his children and did not want to speak to social workers. [ 26 ] Social Worker McLaren told him a safety plan had to be put into place to address his domestic violence, anger management, mental health, and alcohol use. He told the social workers to get off his property.

Social Worker Biddulph informed him that his children were going to be removed. [ 27 ] Social Worker McLaren and Social Worker Parker attended S.S.’s home on July 9, 2020, and informed her that the children were being removed from the care of herself and K.R.U., but were being placed in her home. The report states that: . . . there were no least intrusive measures to ensure their safety. [ 28 ] The report to court further states: K.R.U. was given the opportunity to Safety Plan with the Director to ensure the safety of his children but K.R.U. refused to work with MCFD in any capacity.

Nature of a presentation hearing [ 29 ] A presentation hearing is an interlocutory

summary process to be heard as soon as possible, according to s. 33.3 of the CFCSA . In Director of Child, Family and Community Service v. S.G., 2019 BCPC 258 , Judge Lee said at paragraph 27:

[27] A presentation hearing has been compared to a preliminary inquiry in Criminal Code proceedings [I will omit the citations from the excerpt here] . . . In a preliminary inquiry, a judge must commit the accused to stand trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: United States of America v. Shephard . . . In the context of a child protection proceeding, the question is whether there is admissible evidence that could, if believed, result in a finding that the children need protection: B.R. v.

K.K. , 2015 BCSC 1658 at para. 16 . . . . [29] The purpose of a presentation hearing differs from that of a protection hearing. It is at the protection hearing where the court will resolve any conflicts in evidence and determine if the children are in need of protection. The court does not weigh the evidence at a presentation hearing. In other words, I am not deciding if there is sufficient evidence but only whether there is some evidence that the children need protection. [30] If I decide at the presentation hearing there is no evidence that the children need protection, then I must order pursuant to s. 35(2)(

c) that the children be returned or remain with their parents. This would then conclude the proceedings. [31] If I decide at the presentation hearing that there is some evidence that the children need protection, then I must make one of three interim orders set out at s. 35(2)(a), (

b) or (d). Put another way, I must decide what interim protection is to be [in] place until the protection hearing is completed. The protection hearing is then scheduled pursuant to s. 37. [ 30 ] In my view, the importance of the words "admissible evidence" cannot be overstated. Even in an interlocutory

summary proceeding such as a presentation hearing, double hearsay or unidentified hearsay, inadmissible opinion, or argument is not admissible evidence: Director v. K.S. , 2020 BCPC 97 at paragraphs 10 through 13. [ 31 ] The Director relies on the report to court to provide the requisite evidence in addition to the evidence of Social Worker McLaren. The report to court is, of course, hearsay, but admissible under s. 68(2) if the court finds it reliable. Social Worker McLaren candidly admitted that although she prepared the report to court, she did not sign it because she was not delegated to do so.

She was brand new to the file when she attended with Social Worker Biddulph on July 8, 2020, and had no personal knowledge of any of the prior history detailed in the report to court. It is abundantly clear that some things about the report to court are not reliable, such as the dates on which the MCFD investigation and removal of the children occurred. [ 32 ] This report to court is rife with double or triple hearsay.

For example, the report to court contains references to RCMP reports which, in turn, contain references to calls made by S.S. to unidentified persons in the RCMP in which she complains of various things. The RCMP reports were not presented to the court. They were summarized in the report to court. While the

summary of the RCMP reports is hearsay, the actions detailed in those reports by the RCMP when they attended are at least first-hand hearsay, a report of what the officers actually did, and I find them sufficiently reliable to be accepted as evidence. [ 33 ] However, while S.S.’s complaints to someone at the RCMP may have prompted the attendance of RCMP officers to investigate, a

summary of a complaint she made to an unidentified person contained in a police report prepared by an unidentified person and then further summarized and reproduced in a report to court is third-hand hearsay that is not admissible evidence. [ 34 ] The account in the report to court of S.S.’s various complaints are evidence only that she made the complaints. The details of her complaints as presented through summaries of police reports are not admissible evidence of anything that actually happened.

Reasons for removal [ 35 ] In giving the reasons for removal, the report to court states that: The children are living in a situation where there is domestic violence by or towards a person with whom the children reside. [ 36 ] Further, according to the report to court, the children were removed under s. 30 of the Act because: 1) the child has been, or is likely to be, physically harmed by the child's parent; 2) the child is emotionally harmed by the parent's conduct; 3) the parent is unable or unwilling to care for the child and has not made adequate provision for the child's care. [ 37 ] With respect the “domestic violence” assertion, there is no evidence in the report to court or in the testimony of Ms.

McLaren that at the time of the removal the children were living in any such situation. The evidence is clear that the parents were not living together, so even if there had been some indication of domestic violence when they did live together, it was in the past. [ 38 ] Ms. McLaren admitted in cross-examination that there had been no reports of domestic violence or any other complaint from April 2019 until the children were removed on June 2, 2020.

There is no evidence presented by the Director of any domestic violence involving either of the parents in the complaint to the police of June 2020, or in any of the events that followed. K.R.U. gave uncontested evidence that he and S.S. had been getting along very well. [ 39 ] According to the report to court, another reason for the removal is that the children “[have] been, or are likely to be, physically harmed by the child's parent”.

However, in the report to court, there is no evidence that either parent has behaved in a manner that physically harmed either of the children in the past, unless the account that S.S. allegedly attacked and assaulted K.R.U. while he held their son is such evidence. Such an account might be some evidence to support the removal of the children from S.S., but not K.R.U. However, it is clear that the Director is not relying on that evidence for their removal of the children from S.S. Indeed, Social Worker McLaren testified they had no concerns whatsoever regarding S.S., commenting that, “She is a great mom.”

[ 40 ] There is no evidence in the report to court or the testimony of Ms. McLaren that either of the children was likely to be physically harmed by either parent on June 2, 2020, or at any time before or after that date. [ 41 ] Another reason given for the removal is that the children “are suffering emotional harm by the conduct of a parent”. There is no evidence whatsoever in the report to court that the children are being emotionally harmed by a parent's conduct. There is no evidence that the children were upset or crying. There is no evidence that the children were withdrawn or complained of anything.

There is no evidence about the children's condition at all. [ 42 ] It was argued by the Director that the “yelling” reported in the report to court between K.R.U. and his mother is some evidence of emotional harm to the children. With respect, there is no evidence before the court from which such an inference can be drawn. I find there is no evidence in the report to court as to who did the yelling or that the children were in any way harmed by it.

From the way the report to court is written, it appears this information may have been included in S.S.’s complaint to the police, but since S.S. was not present during the argument between K.R.U. and his mother, she could not have heard it herself. Her account must therefore have come from an unidentified third party, which again makes the account of events third- or fourth-hand unidentified hearsay. It is not admissible as evidence. [ 43 ] The final ground upon which the removal was based is that the parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care.

There is no evidence in the report to court that K.R.U. or S.S. was unable or unwilling to care for the children on June 2, 2020. S.S.’s report to an unidentified person at the RCMP that K.R.U. had sent her texts which were suicidal in nature is not evidence that he sent any texts or that they were suicidal. That account is second- or third-hand hearsay. It is not evidence at all. [ 44 ] If such texts occurred at all and constituted the basis for the removal, I would have expected their contents to be included in the report to court or testified to in court, along with something indicating their provenance.

For instance, if the Director wants the court to be able to rely on evidence of such texts, I would have expected Ms. McLaren to testify that she looked at the texts on S.S.’s phone and noted down the contents, but there is no such evidence in the report to court nor in the testimony of Ms. McLaren. The only evidence regarding the contents of the text messages sent to S.S. comes from K.R.U. himself, who testified there was nothing suicidal about the texts. [ 45 ] Regardless of whether the texts were suicidal in nature or not, the RCMP investigated the complaint.

The result of that investigation is stated in the report to court. When the RCMP attended and spoke with K.R.U., the children were observed to be safe and there was not enough evidence to apprehend K.R.U. under the Mental Health Act . [ 46 ] The Mental Health Act , R.S.B.C. 1996, c. 288 , permits a peace officer to apprehend a person in the following circumstances: Emergency procedures 28

(1) A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person (

a) is acting in a manner likely to endanger that person's own safety or the safety of others, and (

b) is apparently a person with a mental disorder. [ 47 ] I infer from the report to court that even taking into account the information received from S.S., when the police interviewed K.R.U., they were not satisfied that he was acting in a manner likely to endanger himself or anyone else, nor that he had a mental disorder. [ 48 ] With respect to the events of June 2nd that led to the removal of the children, I am unable to find that there is any evidence that the children were living in a situation of domestic violence, had or were likely to be physically harmed, were being emotionally harmed, or that K.R.U. or S.S. was unable or unwilling to care for them. [ 49 ] There was accordingly no legal basis whatsoever for the removal of the children arising from the events of June 2, 2020.

The Director seeks to rely, however, on the entire history of the MCFD involvement with these parents to have the court infer that there is some evidence that on June 2, 2020, the children were in need of protection. In the entire history of this family's involvement with MCFD, there has never been a finding that the children were in fact in need of protection. No proceeding has ever got that far.

Instead, there have been interim orders in place to address whatever the protection concerns were. [ 50 ] It appears from the report to court that there were concerns regarding domestic violence perpetrated by S.S. against K.R.U. for which she was charged criminally. No charges have been laid against K.R.U. for any domestic violence complaints made by S.S. The report to court indicated a concern regarding K.R.U.’s use of alcohol while caring for his son in 2018 and in the 2019 incident.

The report to court contains no reference to any reports provided to MCFD regarding any continued problematic use of alcohol by K.R.U. in the presence of the children after April 2019. There is no evidence presented to me that the June 2 incident involved the use of alcohol. [ 51 ] It appears that there were concerns in the past regarding K.R.U. making threats of suicide to S.S. in 2018 and to the police when he was arrested in 2019. Again, there were no further incidents of this sort until the June 2, 2020, incident.

There is no admissible evidence of any actual suicide threat in that incident either and the decision of the police not to apprehend under the Mental Health Act is some evidence that S.S. was not expressing or behaving in a suicidal manner at all. [ 52 ] After the April 2019 incident, the Director engaged in mediation and the parties entered into a time-limited supervision order by consent.

In November 2019, MCFD allowed their interim supervision order to lapse, and in early 2020, the report to court indicates MCFD closed their file. [ 53 ] When the order expired, the Ministry did not prepare any safety plan for the parties going forward. No letter of expectation was

provided to either party or their counsel. Neither party was told to inform MCFD of any Family Law Act applications. Nevertheless, the Director maintains that S.S. was expected by the Ministry to prevent K.R.U. from having any unsupervised parenting time with their children, apparently forever. [ 54 ] To place this expectation on S.S. was, I find, both unreasonable and unfair.

There is no evidence before me as to any instruction given to S.S. on how to prevent K.R.U. from unsupervised parenting time to which he was legally entitled in the absence of a court order to the contrary. [ 55 ] Regardless of what S.S. may have said to the social workers when faced with the threat of having her children removed, there is nothing in the report to court indicating that S.S. expressed any concerns for the children's safety.

To the contrary, she admitted that she consented to an order for unsupervised parenting time and had agreed to extend K.R.U.’s parenting time beyond that specified in the court order; that is the FLA order. [ 56 ] If the Director had child protection concerns sufficient to deny K.R.U. unsupervised access to his children, they should have proceeded to a protection hearing and sought further supervision orders or a protective intervention order. To do so, the Director must provide proof to the court that preventing K.R.U. from having anything but supervised access was necessary for the protection of the children.

That is what the CFCSA requires of the Director. Had they obtained such an order, then the Ministry would of course have been obliged to arrange and fund such supervised access and to justify the continuation of such an order. [ 57 ] The Director cannot offload its obligations in perpetuity on one parent who has neither the evidentiary foundation nor the legal ability to comply with the Director's demands on threat of removing their children if they fail to achieve on their own what the Director either cannot be bothered to do, or cannot do legally.

The Director certainly cannot maintain such an obligation upon another person when they have closed their file. [ 58 ] I infer from the fact that the Director took no steps to obtain a further supervision order or a protective intervention order that the Director did not have the evidentiary foundation to obtain such an order; that is, that the prior history of the parties would not justify such an order. [ 59 ] I have already found that nothing about the events of June 2, 2020, provided any evidence to support the stated grounds for the removal of the children.

If the prior history of the family justified a removal, then the Director should never have allowed the interim supervision order to expire. [ 60 ] It may be that this removal was punishment by social workers on the parents for obtaining a legal order without notifying the social workers, as suggested by counsel for K.R.U. However, it is not necessary for me to decide at this hearing what the real reason for the removal of the children actually was.

It is sufficient for the purpose of this hearing that there was no admissible evidence presented to me that the children were in need of protection when they were removed from their parents on July 9, 2020. [ 61 ] Accordingly, pursuant to s. 35(2)(c), the children will be returned to both of their parents. (REASONS CONCLUDED)