DIRECTOR, MINISTRY OF CHILDREN, FAMILY v. COMMUNITY SERVICE, 2023 BCPC 102

Citation: British Columbia (Director of Child, Family and Community Service) v. K.P. 2023 BCPC 102 Date: 20230427 File No: 18534 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: D.S., born [omitted for publication] BETWEEN: DIRECTOR, MINISTRY OF CHILDREN, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.P. PARENT M.S. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. PHILLIPS Counsel for the Director: D. Oliver Counsel for the Parent K.P.: C.

Cane Counsel for the Parent M.S.: No appearance Place of Hearing: Kamloops, B.C. Date of Hearing: November 1, 2, 3, 4, 2022, January 9, 10, 11, 2023 Date of Judgment: April 27, 2023

INTRODUCTION [ 1 ] The child who is the subject of these proceedings is D.S. (“D.”), born prematurely at 28 weeks on [omitted for publication]. [ 2 ] The parents of D. are K.P. and M.S. Mr. S. has not participated in these proceedings. [ 3 ] On January 10, 2022, D. was removed by the Ministry of Child and Family Development (“MCFD”), as the parents were struggling with drug addiction, lacked housing and domestic violence concerns were present. [ 4 ] This is the Director's application for a permanent transfer of custody to T.F., the maternal grandmother of the child (the "Application"), pursuant to

Section 54.01 of the Child, Family and Community Service Act (the " Act ''). [ 5 ] Through the assistance of counsel, Ms. P. has participated fully and meaningfully in these proceedings and opposes the Director’s Application for a permanent transfer of custody of D. BACKGROUND [ 6 ] MCFD became involved on August 13, 2021, upon receiving a report advising that Ms. P. had given birth to D. The report indicated that both parents were using crystal meth; however, at the same time, Ms.

P. informed hospital staff and MCFD that she was sober for the five-week period preceding D.’s birth. [ 7 ] As D. was born premature, he was placed in the neonatal intensive care unit (“NICU”) at BC Children’s Hospital due to his high blood pressure and respiratory concerns. [ 8 ] Prior to D.’s birth, Ms. P. was transferred to BC Children’s Hospital at 24 weeks’ gestation due to her personal health needs and the presence of a high-risk pregnancy. Ms.

P. was diagnosed with preeclampsia and struggled with pre-existing decreased kidney function. [ 9 ] On August 27, 2021, MCFD received a report indicating that both Mr. S. and Ms. P. had relapsed and engaged in a domestic incident which resulted in Mr. S. pushing Ms. P. [ 10 ] On September 9, 2021, MCFD received a report regarding concerns that Ms.

P. was present at BC Children’s Hospital and appeared intoxicated. [ 11 ] On September 30, 2021, a social worker (“SW”) at BC Children’s Hospital reported concerns that both parents had relapsed. [ 12 ] On October 14, 2021, it was determined that alternative placement options would need to be sought for D. on discharge from the hospital. [ 13 ] On October 15, 2021, an Extended Family Program (“EFP”) agreement was entered into for D. to be in the care of his maternal grandmother T.F. in [omitted for publication] for a three-month period.

This was done to support the parents in returning to [omitted for publication] and working towards mitigating child protection concerns to allow for successful reunification. At this time, Ms. P. expressed her plan to attend treatment through Karis Support Society in Kelowna, BC. [ 14 ] On December 21, 2021, SW Shwydiuk met with Ms. P. who disclosed that both she and Mr. S. continued to use drugs; however, their use had decreased.

Housing remained an issue for the parents and SW Shwydiuk did not believe that either parent made any meaningful connections to any community supports for drug and alcohol counselling or mental health. [ 15 ] On January 10, 2022, MCFD determined that due to the parents’ continued substance use, lack of stable housing and limited engagement in community supports and resources, the current EFP was no longer appropriate and would not be renewed.

As well, due to the outstanding child protection concerns, MCFD determined that D. could not be safely reunified with his parents and was removed and placed in the care of his maternal grandmother T.F. under the supervision of the Director as no other least intrusive measure could be sought at that time. [ 16 ] Mr. S. has one child, eight years old, that was removed at seven months. Substance use and an inability to care for the child or meet the child’s needs resulted in a continuing custody order granted March 23, 2016. The child was adopted. [ 17 ] Ms. P. has two older children that reside with her mother Ms.

F., who has shared guardianship of them with the children’s father. THE DIRECTOR’S POSITION [ 18 ] The Director seeks a finding that D. is in need of protection at the time of removal and an order pursuant to s. 54.01(5) of the Act that D. be permanently transferred to the custody of his maternal grandmother T.F . K.P.’S POSITION [ 19 ] K.P. seeks an order that the child be returned to her care under supervision, or in the alternative, that the child remain in the temporary custody of T.F. to facilitate a gradual return of the child to Ms. P. M.S.’S POSITION

[ 20 ] M.S. is the father of D. Mr. S. did not attend or participate in these proceedings as a party, although duly served with notice of the Director's Application and made aware of the court dates. THE EVIDENCE Sonya Shwydiuk [ 21 ] Sonya Shwydiuk is a social worker with MCFD and assumed conduct of this matter on November 18, 2021. [ 22 ] In her dealings with Ms. P., SW Shwydiuk described Ms. P. as being honest with the Director and respectful in her actions, attended and participated in discussions and participated in brainstorming about addressing the protection concerns.

The difficulty, in SW Shwydiuk’s opinion, is that Ms. P. lacked follow through with goals and was not mitigating protection concerns. Mr. S. was also honest about his substance misuse. He started using at 18 years of age. He acknowledged his role in the conflict with Ms. P. and the fact that he lacked stable housing. Mr. S. was also engaged in criminal activity as a means to support his habit. From SW Shwydiuk’s observations, Mr. S. was not an active participant in meetings with the Director and looked to Ms. P. to take the lead, which she did. Mr.

S. had limited follow through with goals and next steps. [ 23 ] At The Tree, Ms. P. was comfortable with staff there and received one-on-one counselling. Ms. P. also successfully completed the intake into Interior Health drug counselling; however, poor Wi-Fi connections made it difficult for Ms. P. to participate fully. [ 24 ] In regard to housing, SW Shwydiuk referred Ms. P. to several housing options, such as ASK Wellness Society and Elizabeth Fry Society, and assisted with applications to BC Housing.

The parents were offered a hotel in Valleyview but chose not to take that opportunity out of concerns with the presence of drug users. SW Shwydiuk understood their concern with this hotel as it attracts individuals with drug-addiction issues; however, it was only intended to be short term. Occasionally, when the parents had money, they stayed a night in a hotel. This was during the period December 2021 to January 2022. [ 25 ] SW Shwydiuk encouraged Ms.

P. to attend treatment as it would allow her to be the best mom she wanted to be for her children and that initial distance from her children and Kamloops would benefit her in the long run. [ 26 ] Presently, D. is thriving, happy, social and is meeting his developmental milestones for his age. [ 27 ] SW Shwyduik did not believe Ms. P. was able to resume care of D. as she relapsed on three occasions that the Director is aware of. Ms. P. shared that she struggled with substance abuse since her teens. It appears Ms.

P. attended treatment for 90 days in 2018 while dealing with addiction in order to care for her older children. SW Shwyduik is of the view that Ms. P. needs to experience a significant period of sobriety before she can adequately resume care of D. Her drug of choice at the time was cocaine; now it is crystal meth. [ 28 ] At this time, SW Shwyduik does not believe Mr.

S. could resume care of D. because he is using meth and other substances daily, is involved in crime, no one knows where he lives and he has not participated meaningfully in dialogue and services. [ 29 ] SW Shwydiuk is of the view that D. could be harmed or neglected if returned to Ms. P. because she continues to use drugs while in treatment. The Director is concerned with severing D.’s attachment with Ms. F. as the primary attachment for D. [ 30 ] SW Shwyduik confirmed the Director’s long-term plan is to transfer care to Ms. F. and when Ms.

P. is sober and has obtained stable housing, she can apply under the Family Law Act to alter or change the agreement. SW Shwyduik believes Ms. P. loves D.; however, she is not in a position to resume care at this time or within a timeframe that is in child’s best interest. With Ms. F., D. will continue in a relationship with his half-siblings, with both parents if safe, and extended family as well. [ 31 ] A Safety Plan was developed on August 19, 2021 and used by the Director to mitigate the safety of D. At the time, D. was scheduled to stay in NICU with discharge still several weeks away. The Director, Ms.

P. and Mr. S. reached agreement on three terms: 1) to not be intoxicated while caring for D.; 2) to work with the Director and supports; 3) to work with the Director on a safe discharge plan before D. left the hospital. [ 32 ] While D. was at BC Children’s Hospital, reports were made of the lack of availability of the parents at certain times. Ms. F. was also taking trips to BC Children’s Hospital to assess the situation during this time. [ 33 ] SW Shwyduik gave evidence about two occasions where Ms. P. returned to Kamloops when D. was in BC Children’s Hospital. On one occasion, Ms. P. drove Mr.

S. to Kamloops so he could pick up his belongings and return to work. Mr. S. was a prohibited driver, so it made sense for Ms. P. to drive him. The Director was concerned with the parents leaving D. at NICU as parents should be present to make medical decisions for the child and to support the growth and development of the child, which is better if a parent is present. [ 34 ] At a November 19, 2021 review, social workers were of the view that the parents were not complying with the agreed upon safety plan. From the Director’s perspective, Ms.

P. was not following through with drug screens and the one screen that was done tested positive for amphetamines and methamphetamine. The positive test supported the Director’s belief at the time that Ms. P. was using drugs while D. was in BC Children’s Hospital. [ 35 ] On October 23, 2021, D. was discharged from BC Children’s Hospital. [ 36 ] On October 15, 2021, an email from SW Auger in Kamloops to a social worker in Vancouver informed that Mr. S. disclosed to social workers in Kamloops that he is using a “half ball a day”, that his drug of choice is speed and that he does not use fentanyl. Mr.

S. also said Ms. P. wanted to keep the baby and hoped to clean up but she did not. [ 37 ] While in Ms. F.’s care, the parents accessed D. at Ms. F.’s residence. Ms. F. was of the belief the two were still using drugs and specifically, she was not comfortable with Mr. S. being in her home. Access was switched to The Tree. Eventually, Ms. P. and Mr. S. parted ways and the two began accessing D. separately.

[ 38 ] At a May 26, 2022 meeting with Ms. P., Ms. P. shared her intention to get into Karis for treatment. In this meeting, the Director informed Ms. P. of the Director’s intention to apply for a permanent transfer of custody for D. From the Director’s perspective, Ms. P.’s desire to attend treatment did not change the Director’s long-term plans, as Ms. P. did not follow through with the safety plan and she was unsuccessful in quitting her drug use after treatment in the past. Ms. P. also shared a recent relapse with a person she was residing with by the name of S.

There were individuals using drugs in the residence. SW Shwyduik assisted Ms. P. with the paperwork required to secure social assistance and to line up funding so that she could attend treatment. [ 39 ] A relapse prevention plan was developed between The Tree and Ms. P. Ms. P. consented to disclosure of the plan to MCFD who, upon review, determined that the safety plan was surface level only. Ms. P. did not go far enough in identifying triggers; the plan did not have a lot of depth in terms of other programs, support groups and services.

The Director expected the relapse plan to include harm reduction, comprehensive support networks that parents can reach out to in times of need. The relapse plan fell short of the Director’s expectations. [ 40 ] Ms. P. continued to receive supports from The Tree; however, the Director was not successful in understanding what programs and services Ms. P. completed. The Tree is a mothers’ focused support program. Despite Ms. P. signing a consent for The Tree to share information with the Director, this information was not forthcoming from The Tree. Generally speaking, the Director was informed by The Tree that Ms.

P. was attending appointments and was accessing services and programs such as drug and alcohol counselling; however, details were lacking. [ 41 ] On August 26, 2022, a new individual family plan was created as the parents had parted ways. It appears that Mr. S. did not provide input or feedback to the plan nor did he sign it. SW Shwyduik was not aware of anything Mr. S. did to address the plan. This family plan was sent to Ms. P. while she was in treatment at Karis. In follow up with Ms.

P., she shared that she was doing budgeting, life skills, participating in a “parenting thru recovery” course and was in the process of connecting with a counsellor at Karis, with further parenting courses to commence in September. While Ms. P. was in Karis, she was accessing D. and her two older children by contacting Ms. F. directly. These arrangements worked; however, conflict was arising between Ms. P. and her mother Ms. F., requiring the Director to facilitate access on occasion. Ms. P. hoped that the Director would support D. residing with Ms.

P. at Karis; however, the Director remained concerned and insisted that Ms. P. attend treatment and demonstrate a period of success before agreeing to place D. with Ms. P. at Karis. Prior to this, Ms. P. had not been provided with extended periods to care for D. [ 42 ] During an August 16, 2022 phone call, Ms. P. shared that she went camping the week before and had a good time and that Ms. P. seemed to be doing well at Karis. Prior to this call, SW Shwyduik did not know about the weekend privileges Karis afforded Ms. P. While attending Karis, Ms.

P. did sign a consent for Karis staff to discuss program participation, success, access to urine screens and things relevant to protection concerns. In a conversation with Ms. Styan at Karis, SW Shwyduik learned that Karis had cancelled Ms. P.’s weekends for 30 days because of an issue of co-dependency or not setting healthy boundaries. This was the result of an incident where Ms. P. caught a ride back to Karis with unsafe individuals and informed staff that she may produce a positive test because her friends were using drugs during the ride.

As it turned out, the drug screen tested positive for traces of cocaine, which Ms. P. claimed was from second-hand smoke, being a passenger in the same vehicle. SW Shwyduik did not believe Ms. P. and her second-hand smoke story. From urine analysis results provided by Karis, Ms. P. tested positive for cocaine on August 14 and September 9, 2022. This information led the Director to be concerned about Ms. P.’s ability to share information relating to the safety of D. Prior to this, the Director was not aware of positive drug screens and felt like this information was being withheld.

It is Karis’ policy to share positive drug screen tests; however, this did not occur in this case. [ 43 ] In cross-examination, SW Shwyduik acknowledges that during D.’s time in NICU at BC Children’s Hospital, there was information that Ms. P. was under the influence of drugs at times; however, none of these instances where while she was in D.’s presence, which is in keeping with the agreed upon safety plan. As well, there were reports citing occasions where Ms.

P. was observed in D.’s presence and did not appear intoxicated or under the influence of drugs and that should she exhibit these signs, the matter will be reported. [ 44 ] The primary reason for D.’s removal is drug addiction. Housing is another reason. The end of their relationship ended the violence; however, violence is still a future concern if Ms. P. and Mr. S. try to co-parent. Housing [ 45 ] I understand Ms. P. and Mr. S. were evicted from their residence prior to D.’s birth. SW Shwyduik was aware Ms. P. and Mr. S. were offered a hotel room in Valleyview; however, Ms.

P. refused because of the prevalent drug culture in that area. Ms. P. said she is trying to quit drugs and that hotel was not a good place. The Director was aware that Ms. P. was on social assistance and had no information on Mr. S.’s income. T.F. [ 46 ] D. and K.’s other two children, reside with Ms. F. The older children reside with her six out of 14 days. [ 47 ] K.P.’s two older children came into Ms. F.’s care in May 2018. Ms. P. was struggling with drug addiction at the time. Ms. F. and the children’s father agreed that the children would reside with their father until Ms. P. got back on track.

A final order was granted on November 6, 2019, with guardianship to be shared between Ms. F. and the children’s father. Ms. P. has reasonable contact agreed to by the guardians. The children were six and four when they came into Ms. F.’s care. [ 48 ] Ms. F. recalls Ms. P. attended treatment in Kelowna for three months after the final order before COVID and believes she did well while there. [ 49 ] It was Mother’s Day 2021 when Ms. P. informed Ms. F. that she was pregnant. Ms. F. was not happy because she knew Ms. P. was still using and was concerned with the effect on the baby. Ms. F. recalls Ms.

P. admitting that she was still using while pregnant. [ 50 ] Ms. F. recalls improved communications with Ms. P. while at BC Children’s Hospital, which she attributes to Ms. P. not using.

[ 51 ] While D. was at BC Children’s Hospital, Ms F. recalled an occasion where Ms. P. failed to return to Vancouver, so Ms. F. went down to make sure D. had someone there. Ms. P. did not return for seven days. Ms. F. believed Ms. P. was driving Mr. S. back to Kamloops. Ms. P.’s plan was to return to Vancouver the next morning. [ 52 ] Ms. F. believes when Mr. S. was at BC Children’s Hospital, problems with drug use arose. Ms. P. shared that Mr. S. used in front of her, which made it difficult. [ 53 ] Ms. P. and Mr. S. had one or two visits with D. at Ms. F.’s residence; however, it ended in conflict because Ms.

P. insisted on Mr. S. being present and Ms. F. was not comfortable with that so visits were transferred to The Tree. [ 54 ] As Ms. P. returned to Kamloops, there was not a lot of communication at this time from her. In hospital, Ms. P. communicated with Ms. F. daily. Ms. F. believes this drop in communication was the result of drug use on the part of Ms. P. [ 55 ] Ms. F. is prepared to take on this role of caregiver to her grandson D. and believes the time with D. gives him safety and stability. This connection has only grown stronger since. [ 56 ] Ms. F. believes Ms.

P. is better now that she is in treatment at Karis. Prior to treatment, everything was an argument. In Ms. F.’s eyes, Ms. P. is “definitely looking healthier now in her weight and complexion” and she sees a “definite improvement from where she was”. Communications are better. Ms. F. understands Ms. P.’s plan is to be in Karis for two years and possibly staying in Kelowna after. K.P. [ 57 ] Ms. P. has two other children ages eight and ten. Ms. P. has not cared for these children since 2018. [ 58 ] Ms. P. started drugs at 15 years of age and start using meth in October of 2018, closer to when her dad passed away.

She was working at the airport but lost that job because of partying too much, drinking and using meth. [ 59 ] Ms. P. applied for treatment at Bridgeway and successfully completed a six-week program in April 2019. The plan was to attend Karis after, but they did not have a spot for her at that time so she waited. Unfortunately, two months after leaving Bridgeway, Ms. F. lasted a month and a half before relapsing with Mr. S. [ 60 ] While Ms. P. was in Vancouver Women’s Hospital prior to D.’s birth, Mr. S. remained in Kamloops and was caught stealing on Brock Watch, resulting in eviction from their residence.

Brock Watch is a community Facebook page and showed a video of the theft. The two were then homeless. [ 61 ] While D. was in NICU, Ms. P. was herself in recovery and spent a lot of time with D. She recalls how tiny he was, that she would practice skin-to-skin contact with him and on occasion, would be present for eight hours at a time. Most importantly, she did not use and remained sober. When Mr. S. came down, he used in front of Ms. P. Ms. P. acknowledges using drugs with Mr. S. on their return to Kamloops. A one-day trip turned into seven days. It was the guilt of using that prevented Ms.

P. from returning as planned. In Kamloops, Ms. P. and Mr. S. got into an altercation which ended their relationship. [ 62 ] Ms. P. recounts that while in Kamloops, Mr. S. left her and she used meth. She felt her life falling apart and was afraid to go back to BC Children’s Hospital. From Ms. P.’s recollection, things were going well before she left BC Children’s Hospital, then everything went into the gutter after she left with Mr. S. [ 63 ] On her return to BC Children’s Hospital, Ms. P. kept her distance at the beginning as she wanted to make sure she had no drugs in her system.

She was acutely aware of the term in the safety plan prohibiting her use of drugs around D. [ 64 ] Ms. P. was adamant that she did not use drugs while at BC Children’s Hospital with D. [ 65 ] By November, Ms. P. was using daily. She wanted to quit but could not while with Mr. S. Karis would not admit her with a positive drug test and Ms. P. could not stay clean long enough to get in, so she checked into detox first, then Karis. JANUARY 2022, D.’S REMOVAL [ 66 ] Around the time of D.’s removal, Ms. P. recalls her usage being “pretty heavy”. Her use declined after she separated from Mr.

S. and her motivation to get clean and attend treatment was renewed as she “had nowhere to live, missed her kids” and was no longer focused on Mr. S. [ 67 ] Unfortunately, her first attempt to get into Karis failed because she could not stay clean from drugs. The second failed attempt was due to not having her social assistance in place along with the required bank statements. She was clean in Vancouver with D. and recounts it was the best she ever felt and needed to get back to that place. [ 68 ] On May 16, 2022, she created a safety plan with the assistance of Angela at The Tree. Her goal was to get clean.

She was living in Monte Creek at the time with a man named S. Her meth use slowed to every other day but she continued to drink. [ 69 ] During the period January to May 2022, Ms P. was homeless, lived in car, on a friend’s couch, or in Mr. S.’s truck. “It was cold, awful and not good”. She continued to visit D. Fortunately, Ms. P. was accepted into Karis in June 2022. [ 70 ] She recalls having two to three visits per week with D.; however, a bout with COVID kept her down for a while. She was residing in Monte Creek at the time and could not always find a ride into Kamloops so some visits were missed.

Poor Internet and cell service also limited contact during this time. The rule at the time was to be sober 12 hours before seeing D., so there were a few times Ms. P. woke up still feeling the effects of drug or alcohol use so she would cancel a visit. This 12-hour sobriety rule was an agreement she made with SW Shwyduik.

[ 71 ] During her visits, she recalls D. being a good baby and that most visits went well. She recalls Ms. F. picking up D. early because she was unable to settle him. This happened on two occasions: once at The Tree and the other, at the MCFD office. [ 72 ] While at Karis, Ms. P. learned about “emotional allergies”, which is when an addict is triggered by people, their voice, or the past. She was learning to break these triggers down and beginning to retrain her thought process. The teaching at Karis is interactive and participants are taught to work through their issues.

At times, there are up to 30 people in class: all women; some are mothers. RELAPSES [ 73 ] Ms. P. admits to three relapses while attending Karis and testing positive for drugs on four occasions. The first positive drug test, she believed was from second-hand smoke as a result of riding in a vehicle with others who were using. Another relapse occurred when she was with others who were drinking. From this, she learned that she needed to cut ties with a broader group of people, not just meth users, which for Ms. P. was “pretty much cutting out all of [her] friends”.

She also learned that she cannot exercise her weekend passes with anyone except her children because she struggled with finding safe people to be around. Through this, Ms. P. learned her boundaries and how to say no when people are drinking around her. [ 74 ] The third relapse was in November 2022, just before court. She recalls being very stressed and spent the night with a friend before seeing her kids. She ended up “drinking and using everything”. She admitted this relapse to Karis representatives. The stress was her feeling that her mother Ms. F. was against her. One drink led to another.

With each relapse, Ms. P. acknowledges the guilt she feels and carries. [ 75 ] Ms. P.’s last relapse was on New Year’s while hanging out with a person who she thought was sober. She had a couple drinks before going to bed and used cocaine the next morning. Ms. P. states: “I do not know what I was thinking. I was self-sabotaging. Next, I messaged Karis to let them know I slipped. Karis allowed me to come back as long as I tested clean. At Karis, I made it so I am only allowed to see my children” on her weekend privileges. From this last slip, Ms.

P. learned that she did not know her boundaries and stated: “I knew in my head that I should stay home but did not. The only place I am sure that I can be clean and out of Karis is with my kids and abstinence is the safest. When I went to Bridgeway, I did not have plans to quit drinking. My plan was to quit drugs. I have learned that drinking does lead to other things. I am learning how to say no in social situations”. [ 76 ] At Karis, Ms.

P. has obtained the following certificates: • Certificate, September 13, 2022, “Dollars and Sense” – how to budget successfully; • Certificate of Achievement, November 1, 2022, Systemic Training for Effective Parenting – a six-week course on parenting; • Certificate, November 23, 2022, Parenting through Recovery – in group setting with Building Healthier Families Society. Noon until 4:00 p.m. We learn about anger management, trauma, boundaries, effective parenting and coping skills; • Certificate, December 12, 2022, Nobody is Perfect [Ms. P.’s favorite] – learning to reach out when needed. [ 77 ] At Karis, Ms.

P. enjoys the relapse prevention course on Thursdays and learns a lot from guest speakers who present on topics such as “how to like yourself” and anxiety. Ms. P. acknowledges that anxiety is a big factor in her addiction. She is learning how to manage her anxiety to address the addiction. Anxiety is something Ms. P. has dealt with since childhood. [ 78 ] Ms. P. has learned a lot about why she turns to substances and how trauma and pain leads to anxiety. That “addiction is pain” and the idea that by using drugs, she is “medicating something that was caused by something else”. [ 79 ] Ms.

P. acknowledges that she gets into her head and the resulting anxiety is the beginning of events that lead to a relapse and that by recognizing this, and knowing how to deal or manage the anxiety, will prevent further relapses. [ 80 ] Ms. P. knows what it feels like to lose everything to her addiction. The first anniversary of her dad’s death was the beginning of her spiral. The counselling has taught Ms. P. to accept her dad’s death and instead of wrestling her emotions and grief, she learned to “invite my memories to tea instead of blocking them out”. [ 81 ] Ms.

P. states she gets depressed not having her kids with her in Karis and would like D. in her care at Karis. This will allow Ms. P. to familiarize D.’s routines and will help build a relationship between the two. Her hope is to be at Karis Monday to Friday and on weekends, Ms. F. can spend time with D. and she can spend time with her two older children. [ 82 ] Ms. P.’s goals for the future are: 1. Go back to school – something to do with addictions, like psychology, and work with youth suffering from addiction; 2. Have my children back in my life; 3. Create a life I can love, and care for my children; 4.

Life with sobriety and be around good people. I want to be happy; 5. Financial independence – not needing to be in a relationship. KARIS SUPPORT SOCIETY [ 83 ] Karis Support Society is a non-profit organization that provides recovery-focused programming for women. Karis has a building with 36 rooms that is staffed 24/7. The facility is locked and has video cameras in the interior public areas and on the exterior of the facility. Women can stay at Karis for two years with an option of two years’ aftercare support .

[ 84 ] Karis has a First Stage and then a Second Semi-independent Stage. The First Stage has a women-with-children side and a women-without-children side. The First Stage is six months, teaching participants to learn how to live substance free. Participants are required to attend recovery-based programming, counselling and develop their personal care plan. [ 85 ] The transition to the Second Stage is determined through discussions between Karis staff and the client.

At this stage, clients move into their own rooms, engage in programming and counselling, and have the added responsibilities of cooking, cleaning and purchasing food on their own. Clients are permitted to work or attend school on a part-time basis if they choose. [ 86 ] During both the First and Second Stages, the participants may leave Karis during the week after their programs are over, but have a curfew. The participants are also able to leave Karis on the weekends. Upon returning to Karis after a weekend, the participants are drug tested and required to complete a breath analyser.

When mothers with children are doing their programming during the week, there is on-site childcare provided by Karis. [ 87 ] For any children residing at Karis with a parent, Ms. Styan confirmed Karis will report a threat of harm to MCFD and has done so in the past. [ 88 ] From Ms. Styan’s evidence, Ms. P. is doing well in Karis despite the relapses. She is working on herself and received positive progress reports. EMBERLY STYAN [ 89 ] Emberly Styan (“Ms. Styan”) is the Parenting Program Coordinator at Karis Support Society and has worked for Karis since 2010. Ms.

Styan runs the parenting program at Karis and she can have up to 12 mothers and their children on her caseload . [ 90 ] Ms. Styan’s duties include meeting with all mothers weekly to go over their care plan, relapse prevention plan and their parenting and recovery. She teaches parenting classes, coordinates speakers to attend or brings in parents to speak on programs available in Kelowna. Mothers are held to account by attending classes and submitting to drug screens. Ms. Styan is part of a parent advisory board, which she chairs.

This board meets quarterly to discuss issues and concerns and advise on certain clients. [ 91 ] Ea ch client at Karis is given a self-directed journal binder that includ es a care plan filled out by the client at their pace. It is not a legal document. It is intended to help clients with recovery. It is meant to keep recovery as a focus. [ 92 ] Ms. P. had been on the waitlist for some time. Ms. Styan did her intake on June 15, 2022, consisting of a phone interview, followed up by an in-person meeting with a focus on determining whether Karis fits and whether the applicant wants to attend.

In this interview, a Karis representative determines who the social worker is. Ms. Styan confirms that Karis is an abstinence-based program. Clients are subjected to breathalyzer and urine tests. [ 93 ] Ms. Styan confirmed that Ms. P. was near her six-month mark at Karis and shared that Ms. P. has a fantastic attitude and is honest and forthcoming. She is helpful to other clients. She comes to key meetings. She shows videos of her kids. She is engaging in the program 100%. Ms. P. accumulated 12 progress reports from July 2022, which is low, as some clients can accumulate upwards of 100.

The idea is to ensure each client is engaging in the program. [ 94 ] From Ms. Styan’s perspective, “we know with recovery, it is a process and transition piece”. With multiple relapses in a short time, clients are sent to detox. A first infraction results in restrictions and a review of their safety plan and discussion as to what led to the relapse. A second relapse results in restrictions on weekend passes for a month. A third relapse leads to a time out where clients have to leave Karis for three days to a week, to give the client time to think about whether Karis is appropriate. This is a sink or swim stage.

With Ms. P., she has been under restrictions, lost weekend privileges and was timed out. Ms. Styan shared that Ms. P. came back fighting and has been working hard at mitigating future risks. [ 95 ] When children attend with their mothers, child safety is achieved through regular staff checks and discussions with the mother on proper childcare. If a baby is crying, staff hear it and can check. Karis has done countless transitions for kids and moms all over the province. [ 96 ] Ms. Styan had the opportunity to observe interactions between D. and Ms. P. on three occasions: two at Karis and one in Vernon.

From her observations, D. was happy to see his mom. The attachment and bond was obvious. “They were smiling, laughing, having fun, she was showing him off, taking video and pics of D. His face lights up and is happy to see his mom”. [ 97 ] Ms. Styan recalls speaking with Ms. P. in November 2022 about D. attending Karis with Ms. P. The two agreed that having D. in Karis will limit Ms. P.’s time in Kamloops and away from triggers. From Ms. Styan’s recollection, the Director did not support a transition of this nature for Ms.

P. [ 98 ] Karis staff invests time and money into clients and as such does not normally share drug screens with MCFD. A positive screen for a mother with a child results in Karis calling MCFD. If a mother uses and the child is not with them in Karis, this is treated differently. In the spirit of collaboration and support, Ms. Styan will speak with the social worker to see how the mother and child can be supported. If there is no child with the mother, Karis does not call MCFD. [ 99 ] In Ms. Styan’s view, Ms.

P. has been honest with her relapses and is comfortable with sharing and discussing the positive tests she has had. [ 100 ] Karis clients are the mothers enrolled in treatment; however, child safety is paramount. Children are kept safe by the monitoring of staff and regular check-ins. The facility has cameras that catch things staff miss. Karis can also take steps to ensure the mother does not leave the building, if needed. Visitors can be restricted from entering. [ 101 ] In cross, Ms. Styan acknowledged that she was not trained in MCFD rules and procedures and that she was aware of the reasons

why the Director did not support D. attending Karis. From Ms. Styan’s experience, when a mother is not permitted to have their child atKaris, this can be detrimental to their recovery. [102] Ms. Styan recalls three occasions where she suggested to Ms. P. that she not leave for a weekend. With one of the relapses, Ms. P.was kept in house for 30 days. [103] The Director and Karis have a different view when it comes to positive drug screens and whether D. should attend Karis with Ms.P. This difference may have a lot to do with who each are helping.

The Director is focused on child protection, whereas Karis is focusedon the mother’s recovery, which at times is supported when their children are present. THE LAW [104] In a child protection proceeding brought under the Child, Family and Community Services Act, the court's powers must beexercised in accordance with the guiding principles expressed in s. 2 of the Act (see: Director v. C.M. and A.C., 2015 BCPC 338, at para.5). [105]

Section 2 makes children's safety and well-being "paramount considerations". The principles that govern the

interpretation andadministration of the Act in furtherance of those paramount considerations are as follows: • children are entitled to be protected from abuse, neglect and harm or threat of harm; • a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of childrenrests primarily with the parents; • if, with available support services, a family can provide a safe and nurturing environment for a child, support services should beprovided; • the child's views should be taken into account when decisions relating to a child are made; • kinship ties and a child's attachment to the extended family should be preserved if possible; • the cultural identity of Aboriginal children should be preserved; • decisions relating to children should be made and implemented in a timely manner. [106]

Section 4 of the Act provides the following non-exhaustive list of factors that must be considered by a court whenever it seeks todetermine what will serve a particular child's best interests: • the child's safety; • the child's physical and emotional needs and level of development; • the importance of continuity in the child's care; • the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; • the child's cultural, racial, linguistic and religious heritage; • the child's views; • the effect on the child if there is delay in making a decision. [107] The first step is to determine, pursuant to s. 40(1) of the Act, whether the child is in need of protection.

The Director bears theburden of proving that a child is in need of protection on a balance of probabilities (B.S. v. British Columbia (Director of Child, Familyand Community Services), (BC CA) at para. 26). [108] I will note that where there has been a delay between the time of the removal and the time the court is considering whether thechildren are in need of protection, the time relevant for an assessment of the children’s needs for protection is at the time of removal andthe time of the application (see: Director v. C.(K.) and D.(R.), 2016 BCPC 284). [109]

Section 13 sets out a non-exhaustive list of circumstances when a child is deemed in need of protection. No child should continuein a state of abuse, neglect, harm, or threat of harm while the parties argue over the precise compartment of section 13(1) within whichthe case comes (see Director v. C.M. and A.C., 2015 BCPC 338, at para. 124). [110] A court may make a finding of a protection under any of the subsections, even if such grounds were not originally pled by theDirector, as was done in the case of Catholics Children's Aid Society of Toronto v. M.(M.), 2012 ONCJ 369, para. 101 (see: Director v.C.M. and A.C., 2015 BCPC 338, at para. 128). [111] Pursuant to

section 54.01(5)(

a) of the Act, if a finding is made that the child is in need of protection, before making an ordertransferring custody of the child, the court must determine if there is no significant likelihood that the circumstances that led to thechild's removal will improve within a reasonable time, or if the parent will be able to meet the child's needs. [112] As I understand, there are no issues arising out of ss. (5)(

b) or (

c) in this case. [113] Pursuant to

Section 54.01(6) of the Act, before making an order transferring custody under subsection (5), the court must consider

the past conduct of the parent towards any child who is or was in the parent's care, the plan of care, and the child's best interests. [114] Pursuant to

Section 54.01(9) of the Act, if the court does not make an order under subsection (5), the court must make one of thefollowing orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of the person other than the parent for a period of up to six months, but not beyondthe period permitted under

Section 45; (

c) that the child be placed in the custody of the Director for a specified period of up to six months, but not beyond the periodpermitted under

Section 45. [115] Pursuant to

Section 54.01(10) of the Act, if the court makes an order under subsection (9)(

a) or (b), it may order that the Directorsupervise the child's care for a specified period of up to six months, in accordance with

Section 41.1 of the Act, which states that thecourt may attach supervision order terms and conditions recommended by the Director to implement the plan of care. [116]

Section 45 of the Act provides that the total period a child under five years of age may be in temporary custody of a person otherthan the child's parent must not exceed 12 months from the date of the temporary custody order made under Section 41(1)(

b) of the Act.Subsection (1.1) permits the court to extend this period if the court considers it in the child's best interests to do so. HEARSAY EVIDENCE [117] In general, hearsay evidence is inadmissible. The relevant statutory provisions in this case are Sections 67 and 68 of the Act andSection 42 of the Evidence Act, which provide statutory exceptions to this rule of evidence. Under the Act,

Section 68 states as follows: Evidence of others 68

(1) Before ordering that a child be placed in or returned to the custody of a person other than a director, the court may consider theperson's past conduct toward any child who is or was in that person's care.

(2) In a proceeding under this Act, the court may admit as evidence (

a) any hearsay evidence that the court considers reliable, or (

b) any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil orcriminal proceeding. [118] In A.J.M. v. British Columbia (Child, Family and Community Service), 2014 BCSC 1209, the Honourable Madam Justice Dorganat para. 41 confirms that sections 67 and 68(1) of the CFCSA permit the admission of hearsay evidence of a child if the court considers itreliable.

She further states that the determination of whether hearsay evidence is reliable must be made in consideration of thecircumstances in which it is made and a determination of its reliability in the context of all of the evidence placed before the court. [119] Protection proceedings are not criminal in nature and the standard of proof in child protection hearings is proof of a real risk ofharm to the child, not proof beyond a reasonable doubt or proof on a balance of probabilities.

Given this, there is an understanding in ourcourts that the evidentiary considerations in ss. 67 and 68 of the Act must be read in this light, bearing in mind the child protectionintentions of the Act (see: A.L. v. British Columbia (Director of Child, Family and Community Service), 2008 BCSC 819 (CanLll), atpara. 25; D.D.J. v. P.M.J., , at paras. 24 & 25). [120] In addition to the exceptions to hearsay rule under the Act, the Evidence Act, RSBC 1996, c. 124, Section 42(2), states: Admissibility of business records . . .

(2) In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible asevidence of the fact if (

a) the document was made or kept in the usual and ordinary course of business, and (

b) it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred orwithin a reasonable time after that. [121] The requirements for the admissibility of documents under the business records exception is summarized in McTavish v.Boersma, (BC SC), at para. 10.

To be admitted under this exception, a document must be: a. made contemporaneously; b. by someone having a personal knowledge of the matters being recorded; c. by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of theusual and ordinary course of their business; and d. the matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of thatbusiness.

[ 122 ] Counsel for Ms. P. raises the issue of hearsay in addressing the Director’s evidence adduced in this trial, which includes third- party observations and the introduction of reports without calling the author of those reports to testify. In this respect, pursuant to section 68(2) of the Act , while some evidence of the social workers at times contained accounts of others, I find this evidence sufficiently reliable.

As well, I find that the reports referred to in this decision to be relevant and of sufficient weight to be considered in the context that I have referred to them. [ 123 ] The law in this province is well settled that child protection proceedings are intended to be essentially inquisitorial inquiries into the safety and well-being of children and minimally adversarial. This is particularly the case in a presentation hearing. [ 124 ]

Section 2 of the Act states the Act's presumptive guiding principle: that it is to be interpreted and administered so that the safety and well-being of children are the paramount considerations. CONTINUING CUSTODY ORDERS AND PARENTS STRUGGLING WITH DRUG ADDICTION [ 125 ] In British Columbia (Child, Family and Community Service) v. S.M.S. , 2017 BCPC 461 (CanLll), at paras. 12-17 , Her Honour Judge Gaffar was dealing with a parent who initially had strong engagement in a treatment program, but it fluctuated and diminished over time and eventually she was asked to leave the program.

Upon returning to the community, she relapsed and the protection concerns persisted. The court found that the mother and the child had a strong bond and there was a significant impact on the child when the mother's engagement dwindled. [ 126 ] In the Director of C.F.C.S. v. R.W. , 2008 BCPC 384 (CanLll), the court dealt with a parent with longstanding substance-use issues and a pattern of choosing unhealthy relationships over her sobriety and the presence of domestic violence in her relationships. At paras. 28-32, Judge R.M.

Gallagher states in her decision: DECISION [28] Although I understand Counsel for Ms W's position, I do not agree. I do agree Ms. W continues to make valiant attempts to conquer the many difficulties in her life. A total of six months in a residential treatment program over an 18 month period is certainly a big effort; but, being discharged because of her "being intimidating towards others despite several warnings from staff" is something I also have to consider. Similarly, although I understand how difficult it must be for Ms W to find suitable housing, to be back living with Mr.

T when all concerned realize that is not a good place for her to be is also something I have to consider. The lack of regular attendance with Mr. Ramsay when he is someone Ms. W respects and has a long term working relationship with is also significant. [29] Ms. W was a candid, straight-forward, kind witness. She says she recognizes that she had reached rock bottom and it was the correct decision for the Director to remove D.M. W. two and a half years ago. She intends to get off drugs permanently for the sake of D.M. W. I truly hope that she is successful.

Unfortunately, it is clear that she lacks insight into how long it might take her to adequately conquer her addiction and regain her health and how this might affect D.M. W. in the meanwhile. [30] Mr. T is truly the only independent support Ms. W has. It is unfortunate their relationship sinks into abusiveness. Their relationship has not been sufficient in the past to ward off the temptation of using drugs. I accept there is no evidence of Ms. W using drugs currently. Ms. W has had periods of abstinence before, but it is not just abstinence that is necessary for her to successfully parent.

She will also require assistance and support in understanding and overcoming the triggers that lead her to turn to drugs. She seems to be very receptive to help that has been offered to her and that's why I am hopeful that she might eventually conquer her addiction but not in the timeframe that has been proposed to me by her lawyer. [31] D.M. W. deserves and needs continuity in her life. Dr. Dawson states in his opinion and in the conclusion of the report, that there is very little to no chance that Ms.

W is currently capable of providing an adequate home for her daughter on a consistent basis without substantial external resources in place. It is to be noted that in the past she has had a varied relationship with service providers. For the sake of D.M. W.'s stability, finding a permanent family for her would best be done sooner rather than after additional years of waiting for her mother to improve. Order [32] Based on all that is before me, after two and a half years, Ms. W has remained unsuccessful in her attempts to get off of the drugs permanently.

In accordance with sections 2, 4, 49(4) and 49(5) I am satisfied it is in D.M. W.'s best interest to make a continuing custody order. I find Ms. W is unable to resume the care of D.M. W. and that the circumstances that led to her coming into care have not resolved and will not resolve within a reasonable period of time from the perspective of a seven year old child. D.M. W. needs permanency in her life. It is my hope that this decision will provide for that permanency and therefore I order that D.M. W. be placed in the continuing custody of the Director.

ANALYSIS Need for protection [ 127 ] The Director’s concerns regarding Ms. P. and Mr. S.’s care of D. relate to long-standing issues of drug addiction, lack of stable housing and domestic violence. For Ms. P., her drug use started when she was 16 years old. Despite attending treatment, losing custody of her two older children and now facing a permanent transfer of custody of her third child, detox, attendance at Karis and these proceedings, drug addiction remains a primary concern for her care of D. Mr.

S. has been addicted to drugs for 15 years and engaged in criminal activity, resulting in periods of incarceration and has not participated in these proceedings nor has he spent much time with D. since his birth. He is a no-show in this Court and in D.’s life. [ 128 ] The court is mindful of the significant strides Ms. P. has made in addressing her underlying drug addiction and the insight she is beginning to develop regarding triggers and relapses. It is hoped that this work continues.

[ 129 ] In the circumstances, I find the Director has established on a balance of probabilities that D. was in need of protection at the time of removal and continues to need protection at this time. To her credit, Ms. P. has maintained a level of sobriety when she is caring for D.; however, the underlying drug addiction and the continued relapses are clear indicators that D. will suffer harm if left solely in Ms. P.’s care. [ 130 ] Having found that D. is need of protection pursuant to

Section 40, I must now turn my mind to

Section 54.01(5)(

a) of the Act and determine whether there is no significant likelihood that the circumstances that led to D.’s removal will improve within a reasonable time, or if the parent will be able to meet the child's needs. [ 131 ] Ms. P. has clearly struggled with drug addiction for some time. Her downward spiral began shortly after the tragic death of her father when she was 15. Her choice in partners and people she associated with fed the addiction. Interestingly, what I do not see with Ms. P. is the criminal behaviour commonly associated with people in the throes of addiction.

As well, she has demonstrated some discipline with her addiction in terms of ensuring she is not using while caring for her children. She is clearly trying and to be successful, needs the support of a facility like Karis that is geared towards helping mothers like Ms. P. get off drugs and becoming capable parents and productive members of the community. This takes time. [ 132 ] The Director acknowledges Ms. P.’s efforts to address her addiction and has communicated the need for her to have a sustained period of being drug free and to have a sound relapse prevention plan.

As I have said, this takes time; in the Director’s view, more time than is reasonable in the circumstances, given D.’s age. [ 133 ] Information from an April 18, 2023 news release from a BC Coroners Service Report, more than seven years after the declaration of a public-health emergency, the toxic, unregulated drug supply continues to claim the lives of British Columbians in record numbers. At least 374 deaths believed to be caused by toxic drugs were reported to the BC Coroners Service in February (177) and March (197), which equates to an average of 6.4 lives lost per day.

The 596 lives lost between January and March is the second-highest total ever recorded in the first three months of a calendar year, behind only 2022 (599 lives lost).

The total number of deaths equates to a province- wide death rate of 44.1 deaths per 100,000 population. [ 134 ] Additional key preliminary findings in the report are: • In 2023, 71% of those dying were age 30 to 59 and 77% were male. • The townships experiencing the highest number of illicit drug toxicity deaths in 2023 are Vancouver, Surrey and Greater Victoria. • By health authority, in 2023, the highest number of illicit drug-toxicity deaths were in Vancouver Coastal and Fraser Health Authorities (190 and 161 deaths respectively), making up 59% of all such deaths during 2023. • By health authority, the highest rates of death in 2023 were in Northern Health (60 deaths per 100,000 individuals) and Vancouver Coastal Health (59 per 100,000). • By health service delivery area, in 2023, the highest rates of death were in Vancouver, north-western BC, northern Vancouver Island, Northern Interior and central Vancouver Island. • By local health area in 2022, the highest rates were in Vancouver - Centre North, Terrace, Merritt, Hope and Prince George. • Two deaths have occurred at an overdose prevention site: one in 2022 and one in 2023. [ 135 ] The information in this report does not include data about the number of children impacted from these tragic deaths, which if determined, I surmise would be sad, significant and staggering.

In this respect, it is important for these children to have the Director protecting their best interests when a parent’s drug use threatens those children with harm, neglect and abuse.

At the same time, a critical role of the courts in all of this is to find a safe path for the children and the parent so that they can overcome addiction and return to, or become, productive members of the communities in which the choose to reside. [ 136 ] Fortunately, the province's 2023 budget includes more than $1 billion to improve mental health and addictions services, including new treatment and recovery beds. [ 137 ] I will note that neither council submitted the above-referenced BC Coroners Report on toxic drug deaths in this province in submissions.

For clarity, its inclusion in these reasons is obiter dictum – added for context only. [ 138 ] The Director provided the court with the executive

summary from the investigative report titled “Children at Risk; The Case for a Better Response to Parental Addiction” (“Children at Risk Report”) and the report emphasizes that “when it comes to social work, protection of the child’s best interests should trump everything else” and recommends that “MCFD take immediate steps to ensure the child protection practice is resolutely focused on serving the best interests of the child over any other interests.” I note that one of the findings in the report is “there is a need in BC for a trauma-informed approach to addiction that is flexible to the unique needs of those being treated”.

ORDER [ 139 ] Based on the evidence before me, I find that it is possible to uphold both of these findings in the Children at Risk Report by an order under sections 54.01(9) and (10); that the child D. be returned to the care of K.P. under the supervision of the Director for a period of six months on the following terms: 1. K.P. must allow the Director or its delegates to visit and inspect her residence and meet directly with the child at any time, whether scheduled in advance or not, as often as the Director deems necessary to ensure the safety and well-being of the child.

2. K.P. must continue to reside at her current address and must not change her place of residence without the permission of the Director. 3. K.P. must abstain absolutely from the use, possession, or consumption of alcohol, or other narcotics, or intoxicating substances, except under the direction and prescription of a licensed medical practitioner. 4. K.P. will complete daily urine screen drug testing during the days she is at Karis or any other treatment centre she is attending during the term of this order. 5.

K.P. will sign a consent to release information authorizing Karis Support Society recovery program for women (“Karis”) representatives or any other treatment centre she is attending, to release copies of any drug screening results identified in paragraph 4 of this order. 6. K.P. will provide a copy of this supervision order to Karis or any other treatment centre she is attending. 7. K.P. will return to T.F.’s residence in [omitted for publication] with D. at least one weekend per month, on a weekend agreed upon by K.P. and T.F.

Alternatively, T.F. may pick up D. at Karis on an agreed upon Saturday and return him to K.P.’s care the next day before dinner. 8. The Director may remove the child if K.P. fails to comply with a term of this order. [ 140 ] This order comes with consequences for Ms. P. should she continue to use drugs or alcohol and will hold her accountable to herself, her family, the Director and to D. It is the hope of this Court that Ms. P. has the strength and conviction to keep her children in her focus and overcome her addictions. _____________________________ The Honourable Judge R.D.

Phillips Provincial Court of British Columbia