DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2019 BCPC 258

Citation: British Columbia (Director of Child, Family and Community Service) v. S.G. 2019 BCPC 258 Date: 20191105 File No: 19-31159 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: C.G.M. , born [omitted for publication] E.D.M., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.G. PARENT P.M. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Director: D. Tate Counsel for the Parent – S.G.: M.

Sahlstrom Counsel for the Parent – P. M.: Y. Liang, Articled Student, September 5, 2019 R. Evans, October 28, 2019 Place of Hearing: Vancouver, B.C. Date of Hearing: September 5, October 28, 2019 Date of Judgment: November 5, 2019

INTRODUCTION [ 1 ] S.G. and P.M. are the parents of two children, currently aged 9 and 2 years. The Director of Child, Family and Community Service removed the children from the parents’ care on June 27, 2019. [ 2 ] This matter came before me on a presentation hearing pursuant to s. 35 of the Child, Family and Community Service Act (the “ Act ”). What is in dispute is the type of order to be made until the protection hearing is completed. The Director seeks an interim order for custody.

The parents seek an interim order for the return of the children under the Director’s supervision. [ 3 ] The parties agree that the commencement of the protection hearing will occur on December 11, 2019 at 9:30 a.m. in courtroom 101 of the Robson Square Provincial Court. As such, I will make that order pursuant to s. 37 of the Child, Family and Community Service Act.

BACKGROUND [ 4 ] The Director previously removed the oldest child from the care of the parents on the two earlier occasions, in January 2012 and July 2014. [ 5 ] The events leading to the removal of the two children on June 27, 2019 started in August 2018. At that time, the police attended the family home due to reports that P.M. was threatening a neighbour. The family home was in a filthy condition. The Director and the parents agreed to have the house cleaned and this did occur. [ 6 ] In September 2018, the police attended the family home in Coquitlam because of a report that P.M. assaulted S.G.

The family home was again in a filthy condition. The police arrested P.M. and charged him with assault.

The Director developed a safety plan for S.G. and the children to reside with S.G.’s mother, M.G. [ 7 ] On October 3, 2018, P.M. reported that he resumed using anti-psychotic medication. [ 8 ] On October 15, 2018, P.M. reported to the Director that he was using crack cocaine and had been doing so for some 20 years. [ 9 ] On October 23, 2018, P.M. agreed to engage in random drug testing, seek drug and alcohol counselling and attend a Daytox program. [ 10 ] In November 2018, S.G. left her mother’s home and returned to live with P.M. The children remained with M.G.

P.M. continued his drug use. [ 11 ] In March 2019, the Director received a copy of the forensic psychiatric report for P.M. indicating that he was on an unspecified schizophrenia spectrum. He was also diagnosed with ADHD and other disorders. [ 12 ] The parents were required to leave their government family housing in Coquitlam because the children were no longer residing with them. In April 2019, they relocated to Vancouver. [ 13 ] Both parents had participated in some parenting program sessions with the Spirit of the Children Society.

Having left Coquitlam, they were no longer able to receive services because the Society does not operate in Vancouver. [ 14 ] In June 2019, the Director approved M.G. to care for the children and an Extended Family Program agreement was proposed. The parents refused to accept this proposal and asked for the return of the children. The Director chose to remove the children on June 27, 2019.

According to the Form A – Report to the Provincial Court, the reasons for the removal was that “MCFD continues to have serious concerns that the parents have not adequately addressed their mental health, addictions or anger management/family violence issues.” [ 15 ] The assault charge against P.M. resulted in him being sentenced and placed on probation.

The probation terms included a requirement that he must leave the presence of S.G. should she request it and not return without her permission. [ 16 ] The parents agree that the family home was in a filthy condition at the time of the removal. [ 17 ] P.M. also admits to a long-term addiction to crack cocaine. However, P.M. testified that he has not used illicit substances for the past 7 months. He stopped in May 2019 after he suffered a stroke. P.M. provided one drug test that only showed use of cannabis, which is of course now legal.

The Director has requested that P.M. undergo periodic drug testing but this has not occurred because of P.M.’s full time work schedule. [ 18 ] P.M. says he has been receiving once a month injections of an anti-psychotic medication, which allows him to remain calm. He said his doctor plans to reduce the dosage to deal with some side effects.

There have been no incidents of domestic violence since P.M. started taking his medication. [ 19 ] P.M. reports he attended drug and alcohol counselling once a month. [ 20 ] P.M. is currently participating in a program called Respectful Relationships as part of his probation requirements. This is a 10- week course running once a week. P.M. has four more sessions to attend. [ 21 ] The Director alleges that S.G. has mental health issues but she suggests that it is post-traumatic stress disorder caused by the

Director. S.G. is not currently receiving any counselling for mental health issues or post-traumatic stress disorder. [22] Because of the move to Vancouver, the Director’s file requires transfer to the Vancouver Aboriginal Child and Family ServicesSociety (VACFAS). The file transfer has not yet occurred due to some issues between the two offices and this has delayed access toservices by S.G. THE POSITION OF THE PARTIES [23] Section 35(2) of the Act provides me with four options at the conclusion of the presentation hearing: (

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

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

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

d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person andunder the director's supervision. [24] The Director says the children should be in their interim custody pursuant to s. 35(2)(a). The social worker proposes a gradualincrease in supervised access to the children, ultimately leading to unsupervised time and then overnight access visits. [25] The parents ask that the children be returned to their care under the supervision of the Director pursuant to s. 35(2)(b).

Theparents say that an order for supervision of the children while in their care would adequately protect the children until the protectionhearing. The parents propose intermittent home inspections, random drug testing for P.M. and a requirement that P.M. immediately leaveif requested by S.G. in case of family violence or suspected drug use. [26] The Director is not satisfied that these conditions would be adequate to protect the children, at least at this time.

The Directorseeks a more gradual transition toward the return to the parents, especially in light of the fact that the Director previously removed theoldest child in January 2012 and July 2014. THE NATURE OF A PRESENTATION HEARING [27] A presentation hearing has been compared to a preliminary inquiry in Criminal Code proceedings: see R.G. v. A.P., [2001]B.C.J. No. 466 (B.C. Prov. Ct.) at para. 4 and T. (K.M.) v T. (J.D.) (1999), Fam. L.D. 80.

In a preliminary inquiry, a judge must committhe 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, (SCC), [1977] 2 S.C.R. 1067, at p. 1080. In the context of a child protectionproceeding, the question is whether there is admissible evidence that could, if believed, result in a finding that the children needprotection: B.R. v. K.K., 2015 BCSC 1658 at para. 16. [28] In the decision British Columbia (Director of Child, Family and Community Services) v.

A. (S.), (BC SC),the court stated: [9] A presentation hearing is a

summary proceeding (S. 35(4)). It is ordinarily conducted on the basis of the written report of a socialworker, the required contents of which are outlined in S. 35(1) of the Act. The Hearing results in a temporary order, the point of which is"to secure the best interests of the child, pending a comprehensive hearing into the question of whether or not the child is in need ofprotection" (see: Thompson v. Superintendent of Family and Child Services [1994] B.C.J. No. 759 (March 29, 1994) Vancouver RegistryNo.

CC940161 (B.C.S.C.) per Wilson, J. at p. 7). [10] The jurisdiction of the Provincial Court has been described in Re: Engel (18 December 1981) Vancouver Registry No. A812240(B.C.S.C.) per Trainor, J. at p. 6 (addressing an earlier version of the statute): The jurisdiction of the Provincial Court, at what I shall call the initial hearing where the Superintendent has retained custody of a childand when a written report has been presented, does not involve a decision whether the child is in need of protection.

The questions beforethe Provincial Court on that initial hearing relate to whether the Superintendent should retain custody until the protection hearing orshould the child be returned to its parents. If interim custody is to be retained by the Superintendent, the Court may consider access to thechild by its parents.

If the child is returned to the parents during the interim period, the Court may direct supervision of the child by theSuperintendent until the protection hearing. ….. [12] I think it well established that on such a hearing, if the circumstances suggest a risk of harm to the child, the test is "much lower"than a balance of probabilities (See: Superintendent of Family and Child Service v. G.(

C) and S.G. (1989) (BC CA),22 R.F.L. (3d) 1 C. 9 (B.C.S.C.)). Put in positive terms, I think that where any appreciable risk of harm is established, the court mustmake an order under sections 35(2) and (3) that effectively addresses that risk. [13] The Provincial Court must, however, exercise its discretion on the evidence before it, not simply on the manner in which the risk ischaracterized. [29] The purpose of a presentation hearing differs from that of a protection hearing.

It is at the protection hearing where the courtwill resolve any conflicts in evidence and determine if the children are in need of protection. The court does not weigh the evidence at apresentation hearing. In other words, I am not deciding if there is sufficient evidence but only whether there is some evidence that thechildren 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 place until the protection hearing is completed. The protection hearing is then scheduled pursuant to s. 37. ANALYSIS [ 32 ] The concerns of the Director relate to mental health, drug addiction and family violence issues. [ 33 ] The Director agrees that the condition of the family home has improved significantly but in circumstances where the parents do not have to contend with the children living in the home.

Director’s counsel raised the possibility that if the children returned home, the parents may not be able to maintain the cleanliness of the home but that is really just speculation. [ 34 ] P.M. says he has been in recovery from his drug addiction since May 2019. He only had a single drug test to support this. The Director wishes to see a longer period of drug treatment and ongoing testing. P.M. is dealing with a 20-year addiction problem.

The Director’s position is reasonable given the long history of drug use and the inherent risk of relapse. [ 35 ] There have been no issues with family violence in recent months, and certainly not since P.M. started taking his medication. However, Director’s counsel points out that that there has been no counselling to resolve family violence issues. [ 36 ] The parents have suggested that a term of a supervision order could require that P.M. attend for random drug testing. The Director did make efforts to arrange for further drug testing but this failed due to P.M.’s work schedule.

This proposed supervision term may not be feasible given the difficulty in arranging testing. [ 37 ] There are no reports of family violence in recent months and the parents attribute this to the anti-psychotic medication taken by P.M. However, there remains a concern that P.M. will stop taking his medication. This has evidently occurred in the past because on October 3, 2018 P.M. reported resuming use of his medication. [ 38 ] The Director expressed concerns that the parents have not accessed available services.

This is true but I am not convinced though that this is entirely the fault of the parents. [ 39 ] The move from Coquitlam to Vancouver meant that S.G. could no longer receive help from The Spirit of the Child Society. The move was caused by the apprehension of the children, as the housing was only available to families with children. [ 40 ] There are delays in transferring the Ministry file from Coquitlam to the VACFAS office in Vancouver, delaying access to services.

This appears to be due to some issue between the two agencies and not the fault of the parents. [ 41 ] Even though some of the difficulties in obtaining assistance are not of the parents’ making, I must nevertheless focus on what will best reduce any risk to the children pending the protection hearing. [ 42 ] Having considered the above, I am satisfied that the Director has provided at least some evidence to show that the children require protection.

The parents in fact did not dispute this in their submissions. [ 43 ] The real issue is what form of interim order should be made pending the completion of the protection hearing. In that regard, I conclude that there should be an interim order placing the children in the custody of the Director. In arriving at this decision, the following considerations were of particular importance: 1. The Director has continued concerns about P.M.’s drug use given his lengthy history of addiction. 2. The parents’ need for counselling to deal with family violence issues has not been addressed. 3.

P.M. has commenced a program called Respectful Relationships as a requirement of his probation but this has not been completed. 4. S.G. is not receiving any counselling to deal with emotional issues. S.G. attributes her issues to post-traumatic stress disorder caused by the Director but it is the very presence of those issues, rather than their cause, that is the concern. [ 44 ] I am not satisfied that a supervision order will offer adequate protection of the children. As I said, there has been an inability to organize drug testing.

Home visits only offer limited protection in the case of any family violence, mental health issues or dangerous behaviour brought on by drug use. It may be that these concerns will be dealt with over time with treatment and counselling but that has not yet occurred. BEST INTERESTS OF THE CHILDREN [ 45 ] During submissions, the parents suggested that a supervision order was in the best interests of the children.

Director’s counsel submitted that the Act does not require a consideration of the best interests of the children in a presentation hearing. [ 46 ] The Act does not refer to the best interests of the child when discussing a presentation hearing. The Act does refer to the best interests of the children in many other situations though.

For instance, it is a consideration in the case of a voluntary care agreement (s. 6(4)(b)); agreements with youth (s. 12.2(4)(a)); family conference (s. 20(1)(b)); protecting a child from contact with someone (s. 28(3)); protection hearings (s. 41(1) and (2)(c)); enforcement of a supervision order (s. 42.2(4)(7); and access orders (s. 55(4)(5), s. 56(3)(a), s. 57.01(3)(

c) and s. 57.1(3)).

[ 47 ] A consideration of the best interests of the children would require the weighing of evidence and that would be contrary to the

summary nature of a presentation hearing. [ 48 ] In the decision British Columbia (Director of Child, Family and Community Services) v. A. (S.) , which I cited earlier, the court referred at paragraph 9 to the decision T hompson v. Superintendent of Family and Child Services [1994] B.C.J. No. 759 (March 29, 1994) Vancouver Registry No.

CC940161 (B.C.S.C.), stating that an order made following the presentation hearing was intended to "to secure the best interests of the child, pending a comprehensive hearing into the question of whether or not the child is in need of protection." [ 49 ] I have reviewed the decision T hompson v. Superintendent of Family and Child Services . This case involved a parent’s appeal of an interim custody order made at a presentation hearing. The appellant asked the court for a new trial based on problems with the transcript of the trial. Mr.

Justice Wilson held that although there were some issues, a new trial was not warranted and the application was dismissed. In my view, the comment that the interim custody order was intended to secure the best interests of the child was not tied to the actual issue being dealt with by the court.

In legal terms, this is called obiter dicta and I do not consider that statement to be binding upon me or to require a consideration of the best interests of the children at a presentation hearing. [ 50 ] I also find support in s. 52 of the Law and Equity Act which states that the court must consider the best interests of the child in certain proceedings but makes a specific exemption to proceedings under the Child, Family and Community Service Act except as provided for in that Act .

As I stated, the Act does not state that the best interests of the child are a consideration in a presentation hearing. [ 51 ] Having set out the above, on the facts before me, I nevertheless find that an interim custody order is in the best interests of the children taking into account the Director’s safety concerns. ACCESS [ 52 ] The evidence is clear that the parents love the children and I am of the view that the parents’ access to the children would not be contrary to their best interests: s. 55(4).

Therefore, I order that the parents have reasonable access to the children supervised at the discretion of the Director pursuant to s. 55 of the Act .

SUMMARY [ 53 ] This Court orders that: 1. Pursuant to s. 35(2)(

a) of the Child, Family and Community Service Act , the children, C.G.M., born [omitted for publication] and E.D.M., born [omitted for publication], shall be in the interim custody of the Director. 2. Pursuant to s. 55 of the Child, Family and Community Service Act, the parents may have reasonable access to the children supervised at the discretion of the Director. 3.

Pursuant to s. 37 of the Child, Family and Community Service Act , a hearing shall commence at 9:30 a.m. on December 11, 2019 to determine if the children are in need of protection. [ 54 ] Director’s counsel will prepare the order and circulate it to the parents’ counsel for signature. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia