D.M.R. Appellant And: Director, Ministry of Children v. Families, 2015 BCSC 1997

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: D.M.R. v. British Columbia (Director, Ministry of Children and Families), 2015 BCSC 1997 Date: 20151102 Docket: 18698 Registry: Nelson Between: D.M.R. Appellant And: Director, Ministry of Children and Families Respondent Before: The Honourable Madam Justice B.J. Brown On appeal from: A decision of the Provincial Court, dated February 25, 2015 (Nelson Registry, File No. 2912) Reasons for Judgment Counsel for the Appellant: J.H. Harrison Counsel for the Respondent: R.G. Stacey Place and Date of Trial/Hearing: Nelson, B.C.

October 5, 2015 Place and Date of Judgment: Nelson, B.C. November 2, 2015 [ 1 ] This is an appeal brought by D.M.R. from the decision of a Provincial Court Judge of February 25, 2015 granting the Director’s application that D.M.R.’s daughter be placed in the continuing custody of the Director. In his Notice of Appeal D.M.R. raises the following grounds for appeal: 1. That the trial judge misapprehended the evidence; 2. That he disregarded material evidence including expert evidence proffered by Dr. Michael Brownstein; 3.

That he erred in law by failing to give adequate reasons for judgment respecting D.M.R. and specifically failed to give adequate reasons for finding that there is no significant likelihood that D.M.R. would be able to meet the child’s needs pursuant to section 49(5) (

b) of the Child, Family and Community Service Act ; 4. That he erred in law by applying an incorrect standard of proof, specifically it is plain obvious that the Director has not met its burden of proof in establishing grounds for a continuing custody order. [ 2 ] The thrust of the appellant’s argument is that the learned trial judge failed to assess D.M.R.’s ability to parent S.R. and failed to provide reasons addressing D.M.R.’s ability to act as a parent to S.R. and his desire to take custody of S.R. For the reasons that follow I would dismiss the appeal. Background [ 3 ] D.M.R. is now 52 years old.

He and S.R.’s mother, whose legal name is J.H. but who prefers to be called D.S., began living together in 2008 about six months before S.R. was born. They lived together until 2011 at which time S.R. was approximately 2 years old. [ 4 ] Since S.R.’s birth in March 2009 there had been concerns about the ability of D.S. and D.M.R. to meet her needs. D.S. was diagnosed as a teenager with fetal alcohol syndrome and at the age of 19 was diagnosed with a disability.

She receives disability benefits. [ 5 ] The Director began providing financial support to the family soon after S.R.’s birth and has continued to provide financial support. [ 6 ] In March 2013, after an incident in which D.M.R. allegedly assaulted D.S., the Director obtained an order prohibiting D.M.R.

from having contact with S.R. for six months. Ultimately he had no contact with S.R. for about a year. [ 7 ] After D.S. was left to raise S.R. as a single parent with the support of the Director, she began to question her own ability to parent. On April 8, 2013 she entered the first of a series of voluntary care arrangements.

S.R. went to live with a foster parent, but was to live part of the time with D.S. [ 8 ] By January 2014 the social workers assigned to work with S.R. and D.S. began to consider the necessity of applying for a continuing custody order. [ 9 ] After the one year period in which D.M.R. did not see S.R. at all, he started supervised access with S.R., initially one hour per week and, by the time of trial, two hours per week.

Legislative Provisions [ 10 ] The relevant provisions of the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 are: Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; (

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

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

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

g) decisions relating to children should be made and implemented in a timely manner. Best interests of child 4

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

a) the child's safety; (

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

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

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

f) the child's views; (

g) the effect on the child if there is delay in making a decision. … When protection is needed 13

(1) A child needs protection in the following circumstances: (

a) if the child has been, or is likely to be, physically harmed by the child's parent; … (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent; … (

h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care… …

Protection hearing 40

(1) At the protection hearing the court must determine whether the child needs protection. …

(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the director, and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. Orders made at protection hearing 41 (1) … if the court finds that the child needs protection, it must make one of the following orders in the child's best interests: (

a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director's supervision for a specified period of up to 6 months; … (

d) that the child be placed in the continuing custody of the director. …

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

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

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

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent. … Continuing custody hearing and orders 49 …

(4) The court must order that the child be placed in the continuing custody of the director if … (

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

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

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

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months. … Effect of continuing custody order 50

(1) When an order is made placing a child in the continuing custody of a director, (

a) the director becomes the sole guardian of the person of the child and may consent to the child's adoption,

(

b) the Public Guardian and Trustee becomes the sole guardian of the estate of the child, and (

c) the order does not affect the child's rights respecting inheritance or succession to property. Appeal to Supreme Court 81

(1) A party may appeal to the Supreme Court from an order of the Provincial Court made under this Act. …

(5) On application the Supreme Court may suspend the order under appeal for the period and subject to the conditions it thinksappropriate. …

(7) After hearing the appeal, the Supreme Court may do one or more of the following: (

a) confirm the order of the Provincial Court; (

b) set aside the order of the Provincial Court; (

c) make any order that the Provincial Court could have made; (

d) direct the Provincial Court to conduct a new hearing. … Appropriate Standard of Review on Appeal [11] Madam Justice Russell set out the appropriate standard of review of an appeal under s. 81 of the Child, Family and CommunityService Act in D.M.G. v. Director of Family and Child Services, 2007 BCSC 461 at paras. 6-7 [6] Before commencing a review of the trial judge’s decision, the appropriate standard of review must be considered. Theappropriate standard of review of the B.C. Supreme Court on an appeal pursuant to

section 81 of the CFCSA is well set out byMacKenzie J. in A.S. v. British Columbia (Director of Child, Family and Community Service), 2006 BCSC 133 at paras. 19-21: The scope of appellate review, pursuant to s. 81 of the Act is narrow. This Court does not re-hear the matter and substitute its ownfindings. The parties agree that this Court can intervene only if the trial judge made an error of law or seriously misapprehended theevidence.

There must be an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack offactual support for the judgment: New Brunswick (Minister of Health and Community Services) v. L. (M.), (SCC),[1998] 2 S.C.R. 534, 165 D.L.R. (4th) 58, at paragraph 35; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60, at paragraph13. Errors in findings of fact are not to be overturned unless the appellant can point to some palpable error. The appellant must be able topoint to an error that is "plain to see:" Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, 2002 S.C.C. 33 atparagraph 5. In Re S.(P.J.), [2000] B.C.J. No. 787, 2000 BCSC 582 at paragraph 6, Blair J. confirmed the standard of review on an appeal from theprovincial court on a child protection proceeding, described by Lord Simmonds in McKee v.

McKee, (UK JCPC),[1951] A.C. 352, 2 W.W.R. (N.S.) 181, (Canada P.C.) at p. 360, as follows: [T]he question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has theopportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant's circumstances, and that hisdecision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence.

The deferential standard of review in child custody cases is based upon the trial judge's unique role in observing the witnesses and insociety's interest in promoting finality and stability in those types of hearings: Van de Perre, at paragraph 11-12. [7] To these comments, I add that the same standard of palpable and overriding error applies to inferences of fact (Housen v.Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paras. 19-25), and to questions of mixed fact and law where the issue on appealinvolves the trial judge’s

interpretation of the evidence as a whole (Housen v. Nikolaisen, supra, at para. 36). I also agree with theDirector’s submission that the appropriate standard of review will be correctness on a pure question of law: Housen v. Nikolaisen,supra, at paras. 8-9. [Emphasis in original.] Failure to Provide Adequate Reasons [12] A trial judge has a duty to give adequate or sufficient reasons for his or her decision. This principle has been applied to reasonsfor judgment in the criminal context (see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R.903; and R. v.

R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3) and in the civil context (see Willick v. Willick, (SCC), [1994] 3S.C.R. 670; and F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 [McDougall]). Failure to give adequate or sufficient reasons forjudgment is an error of law. [13] The function of reasons for judgment is to explain what the trial judge has decided and why he or she reached that decision (R.v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.) at 525; and R.E.M. at para. 17). Reasons for judgment should

demonstrate “a logical connection between the ‘what’ – the verdict [the decision] – and the ‘why’ – the basis for the verdict [the decision]”, when they are read as a whole in the context of the evidence and the live issues at trial, and the submissions of counsel ( R.E.M. at paras. 16-17 ).

Reasons for judgment do not require a judge to show how his or her decision was reached by: expound[ing] on evidence which is uncontroversial, or detail[ing] his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned. ( R.E.M. at para. 20 ). [ 14 ] In the civil context, the duty to give reasons was summarized by Mr. Justice Rothstein, for the Court, in McDougall : [98] The meaning of adequacy of reasons is explained in R. v. Sheppard , [2002] 1 S.C.R. 869, 2002 SCC 26 . In R. v.

Walker, [2008] 2 S.C.R. 245, 2008 SCC 34 , Binnie J. summarized the duty to give adequate reasons:

(1) To justify and explain the result;

(2) To tell the losing party why he or she lost;

(3) To provide for informed consideration of the grounds of appeal; and

(4) To satisfy the public that justice has been done. [ 15 ] Justice Rothstein then explained what the duty to give reasons did not include: [99] However, an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is a failure to give adequate reasons a free standing basis for appeal. At para. 20 of Walker, Binnie J. states: Equally, however, Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26).

Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue. ... The duty to give reasons “should be given a functional and purposeful

interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention” (para. 53). [100] …Nor are reasons inadequate because in hindsight, it may be possible to say that the reasons were not as clear and comprehensive as they might have been. [ 16 ] This test for the adequacy of reasons was confirmed by Mr. Justice Donald for the Court in K.L.K. v. E.J.G.K., 2011 BCCA 276 , 19 B.C.L.R. (5th) 320 at para. 31 : [31] It was not, in my view, necessary for “intelligibility” to have a full recital of the evidence.

A trial judge is not required to exhaustively survey every piece of evidence offered at trial. As this Court stated in Marois v. Pelech 2009 BCCA 286 , 95 B.C.L.R.(4th) 243 at para. 46 : The failure of the trial judge to discuss the evidence in detail is not sufficient reason for this Court to re-examine it unless it gives rise to a “reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014 at para. 15 , aff’d Housen v.

Nikolaisen [2002 SCC 33 , [2002] 2 S.C.R. 235] at paras. 39, 72. [ 17 ] It is now settled law that there is no free-standing right of appeal on the adequacy or sufficiency of a judge’s reasons. Moreover, even where the logical connection between the evidence and the decision cannot be discerned (i.e., the reasons are objectively inadequate), appellate intervention will not be justified if the record itself permits meaningful appellate review. This is evident from the comments of Mr. Justice Bastarache and Madam Justice Abella, for the majority of a five-judge panel in R. v.

Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621 at para. 13 : [13] …Finding an error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? In other words, the Court [in Sheppard ] concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record.

But if the reasons are both inadequate and inscrutable, a new trial is required. [ 18 ] In this case, the issue raised by the appellant requires the Court to examine whether the “why” for the decision to grant the continuing custody order can be discerned from the trial judge’s reasons when viewed in conjunction with the record. [ 19 ] In my view, it is possible to discern the trial judge’s reasons when they are viewed in conjunction with the record. [ 20 ] It was the position of the Director that despite the best efforts of social workers and the Ministry over an extended period of time that D.M.R. and D.S. were not capable of caring for their child on a full time basis and there was no likelihood that that would change. [ 21 ] D.M.R., through his counsel, took the position that although he had a history of violent offences, he was a changed man.

He had been seeing a psychiatrist and argued there was no expert evidence of a lack of capacity. In closing submissions, counsel for D.M.R. submitted that “[D.M.R.] has indicated that his primary wishes for [D.S.] to be the primary caregiver, but she is not available, he is ready to step up to the plate, in his words” (Proceedings at Hearing (Day 6) at 28).

He continued “I do acknowledge respectively that … that there are certainly concerns about both parents’ ability to be ideal parents, and certainly there should be some oversight in the transition back to the family, but again, I think… I submit that the Ministry has fallen well short of their burden of proof in this case” ( ibid ).

[ 22 ] In his reasons for judgment, the learned trial judge said: [5] [D.M.R.] is also opposed to the Director’s application.

He says that his capacity to meet [S.R.’s] needs has improved as a result of counselling and as a result of his efforts of self-improvement, and he supports an order returning [S.R.] to [D.S]. … [23] [S.R.] will be found to be in need of protection if I determine that she is likely to be deprived of adequate care by reason of [D.S.’s] inability to provide for her care. [S.R.] will be found to be in need of protection if I conclude that, should she be placed in [D.S.’s] care, [S.R.] will likely be physically harmed, either through neglect by [D.S.] or by [D.M.R.], emotionally harmed by the conduct of [D.S.] or [D.M.R.], or deprived of necessary health care by [D.S.] or [D.M.R.], amongst other things. … [29] I have no hesitation in finding that [S.R.] is in need of protection pursuant to s. 40(1) of the Act .

The effects of fetal alcohol syndrome on [D.S.’s] ability to cope with the onerous day to day requirements of caring for a child, the effects of her physical injuries on her mobility, and her behaviour in the past of addressing her needs and wishes ahead of those of her daughter all lead to a conclusion that [S.R.] is likely to be deprived of adequate care by reason of [D.S.’s] inability to provide for her care. [30] The willingness of [D.M.R.] to support [D.S.] would not be sufficient.… [ 23 ] Those reasons address the evidence that was before the learned trial judge. [ 24 ] In his evidence in chief D.M.R. said: Q.

Based on your experience over the past several months, do you believe that you could co-parent with [D.S.]? A. I believe I could, but somehow -- that’s not really my intention. Q. Perhaps you can tell us what your intention is then. A. I would very much like [D.S.] to have [S.R.] full time. I would very much like to be able to spend more time with my daughter. … Q. And so is it fair to say that you see yourself as a support for [D.S.] more than as a full time parent going forward? A. Yes, sir. I do. On the same token, if [D.S.] needs a hand with her, I would like to be the one to be there.

I would. (Proceedings at Hearing (Day 5) at 36) In cross examination he said: Q. [D.M.R.], we have heard -- I believe that you do not see yourself as a primary caregiver for [S.R.], is that correct? A. It is. (Proceedings at Hearing (Day 5) at 54) … Q. Now, Mr. Harrison and Ms. Connelly both asked you this, but just to get absolutely clear in mind you are not asking that [S.R.] be in your care full time. You are asking that you have the opportunity to have some access to her? A. Yes, sir. Q. And as I understand, your view is that she would be best with her mother, with [D.S.]? A.

Yes, sir. (Proceedings at Hearing (Day 5) at 61) [ 25 ] In re-examination he was asked: Q. Would you -- at the end of these proceedings, would you be -- would you prefer [S.R.] living with a foster family or yourself if [D.S.] was not available? A. Myself. (Proceedings at Hearing (Day 5) at 68) [ 26 ] The psychiatrist that D.M.R. had been seeing for several years to deal with his anger management issues was called to give evidence. He was asked: Q. Has he expressed a desire to play the role of a full time parent for [S.R.]?

… A. -- then, no, he -- no, he does not feel that he is ready to be a full time parent. Q. Okay. Mr. Harrison: Sorry can you just repeat what you just said? A. He does not want to be a full time parent, to have sole 24/7 custody of [S.R.]. (Proceedings at Hearing (Day 5) at 14) [ 27 ] The evidence before the learned trial judge was that D.M.R. had never had sole custody of S.R. For a period of time, approximately one year, he had not seen S.R. Since that time he had limited supervised access, initially one hour per week, later two hours per week.

D.M.R.’s own evidence and that from his physiatrist was that S.R. did not want to be a full time parent for S.R. Rather, he hoped to be able to see S.R. more often, to exercise more access with S.R., but have S.R. live full time with her mother. [ 28 ] It was this circumstance that the learned trial judge addressed in his reasons. In my view the reasons, when read in combination with the record, are sufficient.

Misapprehension of Evidence [ 29 ] I am not persuaded that the learned trial judge misapprehended the evidence or disregarded material evidence including expert evidence proffered by Michael Brownstein in reaching the conclusions that he did. As I have indicated, the appellant’s own evidence and that of Dr. Brownstein was that D.M.R. did not want to be S.R.’s full time caregiver. D.M.R. wanted her to live with her mother and for him to see her more often. That is the circumstance that the learned trial judge addressed in his reasons.

I do not see that he was clearly wrong or disregarded significant material evidence in reaching his conclusions. Applied the Incorrect Standard of Proof [ 30 ] It is my view that the learned trial judge correctly stated and applied the standard of proof, particularly, ss. 13, 41 and 49. [ 31 ] In D. M.G. at para. 66 , Madam Justice Russell outlines that whether a child is in need of protection under s. 13 is a question of whether, on a balance of probabilities, the parent is unable to care for the child and has not made adequate provision for the child’s care.

The learned trial judge set this out with regards to both D.S. and D.M.R. Likewise, he considered s. 41 and 49 and correctly construed those provisions in the context of the custody arrangement before him. [ 32 ] In this case, the learned trial judge made a clear finding that S.R. was in need of such protection as a result of D.S.’s disabilities.

He addressed that D.M.R.’s willingness to support D.S. would not overcome her limitations. [ 33 ] D.M.R. suggests there was insufficient evidence before the learned trial judge to determine that S.R. would be at risk of significant harm as a result of D.M.R. or the adequacy of his care. However, as I addressed above this was not the case before the trial judge. D.M.R. maintained a position that S.R. would best be served in the custody of D.S.

Despite the suggestion he may prefer the idea of gaining custody of S.R. to her entering the care of the Director, D.M.R. repeated throughout his testimony that his intention was to limit his role to supporting D.S. in S.R.’s care. This foreclosed any requirement to consider his ability to parent S.R. were she put in his sole custody. [ 34 ] The appeal is dismissed. “B.J. Brown, J.”