CFCSA v. G.Y. Date:, 2010 BCPC 473

Citation: CFCSA v. G.Y. Date: 20101208 2010 BCPC 0473 File No: 2008-22157 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 CHILD: J.Y. , born DOB BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: G.Y. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.K. DAVIS

Counsel for the Director: R. McQuillan Appearing on their own behalf: G.Y. Place of Hearing: Vancouver , B.C. Dates of Hearing: June 1, 2, 3, 4, August 26, September 15, 16, December 1, 2, 3, 2010 Date of Judgment: December 8, 2010 [ 1 ] THE COURT: Now, I am going to read these reasons for judgment. It would be better had I given written reasons. They certainly would have been shorter.

They probably would have been more grammatically correct but as this matter has gone on for some considerable time, I thought the decision should be made sooner rather than later. [ 2 ] This unfortunate matter involving a child born in May of 2008 is before me to determine what is to happen to this child for the rest of her life.

Should the child be placed in the permanent care of the Director of Child, Family and Community Service, or should the child be returned to the mother or to the father? [ 3 ] The Director is seeking a continuing custody order because the Director says that the parents are incapable of raising this child in a manner that is in any way acceptable.

I will have more to say about this below, but in short, the Director says that the mother has some mental defects that preclude her from caring for the child, and that the father has some anger issues that preclude him from looking after the child. [ 4 ] The mother represented herself and, at the beginning when she partook in this trial, she did a reasonable job. The Director’s concern is that the mother is unable to focus on any task which she is given.

It may be that the mother’s behaviour during the course of the trial confirms this, as the mother would come and go from counsel table without any rhyme or reason that I could see. But what did appear is, and this has no basis for this decision, the mother clearly lacked focus in what was being said in the trial. On at least one occasion, and the transcript may not be able to show this, the father attempted to come to the aid of the mother by giving her directions as to what she ought to be doing.

The father had counsel at the beginning of the trial, but latterly came to act on his own behalf. [ 5 ] This family came to the attention of the Director at the birth of the child. It became apparent to the nurses that the mother had some difficulty in understanding the direction as to how to care for a newborn, and the father’s behaviour caused the nurses to make him report to the hospital security. The father was ultimately barred from entering the hospital. [ 6 ] There was a trial in December of 2008 to determine whether the parents or the Director should have interim custody of the child.

Apparently I was the trial judge and I made an order the child remain in the interim custody of the Director. Circumstances [ 7 ] The child, J.Y., born (DOB), was removed on June 13, 2008, as a result of the Director’s concerns regarding the mother’s and father’s ability to parent this child. [ 8 ] The concerns regarding the mother are: 1. The mother could not parent alone because she said she had: (

a) a number of health problems; (

b) fibromyalgia; (

c) a back injury; (

d) had rheumatism. 2. The mother also expressed concerns that she had: (

a) post-traumatic stress disorder; (

b) depression; (

c) an anxiety disorder. [ 9 ] The concerns of the Director regarding the father is that the father has a history of violence. There was some concern that the father was addicted to alcohol and cocaine, but the evidence is lacking that the father, during the time that he was involved in the life of the child was addicted to any substance.

He said that when he met the mother he stopped abusing any substances, and I believe him. [ 10 ] After the interim order of custody was made in December of 2008 by myself, the Honourable Judge Dhillon made an order in July 2009, granting the Director three months temporary custody of the child. [ 11 ] The Director filed an application in October of 2009 for an order extending the temporary custody order by Judge Dhillon for a further three months.

That application changed when the Director filed their application on November 24th, 2009, seeking that the child be in their permanent custody; that is, a continuing custody order in favour of the Director, pursuant to s. 49(4) and s. 49(5) of the Child, Family and Community Service Act .

[ 12 ] Sections 49(4) and 49(5) provide as follows: 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order.

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

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

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. [ 13 ] I gather the reason for the change in the application from a temporary order to a continuing care order was due to the behaviour the Director observed in the parents. [ 14 ] A number of witnesses were called on behalf of the Director: Leslie Vaughan, the social worker; Vivian Cheng, an access supervisor and family counsellor; Mary Bohnen, an access supervisor; Laura Mayne, a family counsellor; Deirdre Maloney, an access supervisor; Bruce MacLeod, an access supervisor; Katherine Saunders, a family counsellor; Rhiannon Jones, the father’s probation officer. [ 15 ] The mother and father gave evidence, along with the pastor of the father’s.

The Evidence [ 16 ] The Director’s first witness was the social worker involved in the case and it was clear that the social worker and the parents did not get along. The social worker became involved with this matter in October, 2008, and she says that there was difficulty in dealing with the parents from the beginning. The parents were evasive and they refused to discuss matters with her. The parents apparently took the position they could not talk to the social worker because the matter was before the courts.

This difficulty permeates the entire matter, and I am of the opinion that it is not entirely at the feet of the parents. [ 17 ] When the mother gave birth to the child at the hospital it was clear to the social worker that the mother needed help with housing, and so the goal at that point in time was to help the parents obtain housing for them and the child. They anticipated having a doula with the mother when the parents were at home with the child. [ 18 ] The Director filed voluminous hospital records, and it appears that the Director’s concerns came to the fore during the birth hospital stay.

The nurse’s notes on May 30th, 2008, at 0330 hours give some insight and indicate the parents were arguing in the hospital. These notes provide (as read in): P-t. (the patient) returned back from visiting babe. RN at Nurse’s Station heard door slamming and yelling in hallway. When writer checked K. that standing outside her door asked partner to leave. Stated, ‘He was dealing s-e-a and wanted him to leave.’ Partner upset, swearing at her, calling her f - - k, b - - - h, c - - -, and then ... Asked partner to leave quietly. He picked up his stuff.

Asked K. to sit in lounge. [ 19 ] There is further nurse’s notes from June 15 which indicate (as read in): Patient in Room 9 came to nurse’s station and told us G. out in the smoking patio had told her, “Fuck off, bitch,” when she asked him for a cigarette. [ 20 ] I will return to his use of those words later in these reasons for judgment. [ 21 ] The mother acknowledged that she had some difficulties with the newborn as the physician's notes for June the 6th, 2008, indicate (as read in): P-t. (patient) does not want to continue breastfeeding because of the stress that it poses on her back, and because of her stress about housing.

She would like to keep pumping occasionally, but it is most comfortable with formula feeding at the moment. Between her emotional stress and physical pain - she needs to set her limits and take care of herself. We discussed how being a mom has to include self-care. She did not want to discuss what is stressing her at this moment.

[ 22 ] During that month of June it appears that the father had some interaction with the police and he was charged between June 19th and June 26th that he uttered threats, and it was alleged that he harassed another individual. The other individual was a pastor who had provided accommodation for the father and the mother. In any event, the father did have accommodation where he resided at the start of the trial. The social worker described it as a one-bedroom suite on the third floor. It was clean, organized and it was appropriately furnished.

The social worker said that, “It was acceptable as a home.” [ 23 ] The problem the Director had with this couple is that they were far from communicative. The Director had great difficulty in discussing any topic, even the safety and well-being of the child with these parents.

There was a period of time when access to the parents was suspended, and after some discussion the access was reinstated. [ 24 ] It appears that approximately two days after this access was reinstated to the father, May 22nd, 2009, the social worker says that, “When speaking to me he screamed, he used obscenities, he was very abusive,” and he made more than one such call, including an abusive call to a social worker who was not involved in the matter. Furthermore, the father said that he could not work with females, and that he was only prepared to work with males.

This apparently took place at a meeting sometime after November 19th, 2009, but it was a topic that the father repeated from time to time at various meetings. The social worker said that this was part of the problem, providing access to the father because they only had three males on staff and one was a supervisor. [ 25 ] Dr. Kuchenmuller, a psychologist, prepared a Parental Capacity Assessment of the mother and father dated June 29th, 2009. He gave evidence as well.

He said in giving his evidence that he approached this matter with this in mind, “Since this child is the first child of these parents what could he do to see what would be necessary to keep the child with the parents.” This is reflected in his report, dated June, 2009, where he recommends that notwithstanding his opinion that the parents at that time do not have the emotional, cognitive and psychological capacity to safely parent the child, individual intensive therapy for six or so months may have a positive effect with the parents.

He says that perhaps six months in therapy might be of assistance to the parents, to put them in a position to parent the child, but he was not convinced that it would work. [ 26 ] He points out that in the beginning the parents' relationship with the child was not problematic, and he saw a lot of positive things, although there were some minor issues, such as the mother did not want to engage her child with other children of the same age, and, “As a parent it was necessary to be able to provide for the child the ability to get along with the public, such as teachers, et cetera.” [ 27 ] It was necessary of course to get along with other individuals because they would affect the child's life.

Dr. Kuchenmuller says, “That he was touched by the fact that these people loved their daughter and spent time with her.” I, too, observed the same thing. There is no doubt these parents love their daughter. [ 28 ] Dr. Kuchenmuller said that in his report it was his hope that the parents would make progress. As the report was 11 months old at the time of trial he had the opportunity to see what had transpired over that time. He had hoped the parents’ difficulties would improve over time, but sadly such was not to be the case.

He says that he received a recent report showing the father was in therapy, and that the father had made inappropriate telephone calls. He also pointed out the father had inappropriate reactions to statements that Dr. Kuchenmuller had made about his family. [ 29 ] The mother had, as well, made inappropriate telephone calls to Dr. Kuchenmuller, as recent as two months before the trial. She said, “Like I said before, your office should be a jail cell and you know who this is - Mrs. H. -- Ms. K.H. You creepy jerk, to take my children from me. I’m almost 42 years old. She is my family, my blood.

You are a creepy jerk.” [ 30 ] It was clear to the doctor that the father still has emotional problems that interfere with his life. He opines that the mother has a lot of trauma experiences that have never been dealt with, and that the mother requires therapy. She has not accepted this and she has a lot of anxiety and issues around this difficulty. He says, “Mrs. H. is a troubled woman who is unable to see her problem. It is unfortunate and indicative of the abuse/trauma that she has experienced in her life.” [ 31 ] Dr.

Kuchenmuller’s major concern is that if a parent does not take responsibility for what they do, they cannot teach their children to be responsible. He appreciates that, of course, this child is a young child, but when this child starts to become independent the mother will not be able to be supportive. [ 32 ] As to the father, he does not think that the father is capable or competent to look after the child on his own, and that he cannot separate himself from the mother, as he allows her to do what she wants.

He will, as well, defer to the mother, and her difficulties are far too extreme to permit her to parent the child. He also says that what we have here are two people who want a better childhood than they had, and if this child does not conform there will be problems. He says that having both parents is better than either one alone, but he still does not see it as being viable for the child. He says, as well, that the mother could not cognitively work through the problems she faced because of her emotional reactivity. [ 33 ] On cross-examination Dr.

Kuchenmuller said when asked if there was a timeframe for changes that he could foresee in the father, he replied that it would be a lifetime, but accepting and beginning the process is the first step. Neither he nor I have seen that first step. [ 34 ] Dr. Kuchenmuller says that even if the father avails himself of therapy to deal with these issues with a competent therapist, he would only be able to say that perhaps the father will be able to parent the child safely. As well, Dr.

Kuchenmuller said the father needs to make a real effort to get along with other individuals, and what better way than to have him deal with Ministry officials in a respectful way. [ 35 ] As I say, the Director called a number of witnesses. Ms. Cheng, the family counsellor, said that she was referred to the family for support and to help the mother with the child who was born prematurely; and as well, she was to help the mother with the mother's own health issues and her living conditions. Ms.

Cheng says at the time she met the family it was, in fact, a child protection file and there were some concerns about the mother's mental health, as the hospital noted she was disassociating and the father had some

behaviour that was disturbing to the hospital. She says that after the initial meeting she tried to help the parents with the basics and met with them twice at the hospital. She encouraged the mother to go to a financial worker and to apply for disability for extra money, to assist her in obtaining housing. [ 36 ] Ultimately after encouraging them to apply for B.C. Housing and providing them the forms, the parents found an apartment on their own on Dundas Street.

It appeared that the parents’ mantra was that there were no child protection concerns, just housing concerns, and now that they had housing there ought to be no child protection concerns. [ 37 ] Ms. Cheng says that she explained to them that housing was part of the concern; mental health and the other difficulties were also of concern. There were home visits during the supervision and supervised visits with the child, and she found that generally the visits were proceeding in a fairly acceptable manner. Ms.

Cheng thought that she had a good relationship with the father, and that continued up to about April 2009, when the father left voicemails on Ms. Cheng’s cell phone. To say that the voicemails are vile, disgusting, scary, racist and disconcerting actually underplays the threatening tone in the voice, and the fear that it must have conjured up when the invectives were directed at the individual. The words that were used in the hospital when the child was first born are captured again on these voicemails. Ms.

Cheng says that she received voicemails from the mother, even though she is no longer involved with the family or the file. [ 38 ] The other witnesses called had the same experience with both the mother and the father, and that is everyone at the beginning of getting involved with the parents in this matter believed things were going well, and that there was a connection. Every relationship that the parents, and in particular the father had, deteriorates into the father reverting to his cold, calculated threats.

The father had been described as, “He appeared frustrated, angry, that he could not get what he wanted.” This, of course, is a real concern about his dealing with people. [ 39 ] When Bruce MacLeod, the male access supervisor, gave evidence, he set out what he understood his job description was and what he observed.

He says that during the visits the mother wanted to talk about the courts, and as well, she set out that there were certain restrictions on who could supervise and who could not supervise. [ 40 ] It appears to me these parents have given near impossible conditions to the Director, and for some reason the Director complies. Mr.

MacLeod certainly had a number of positive things to say about the parents and the access visits, but he does point out that there are certainly difficulties. [ 41 ] I do not propose dealing with the evidence of the probation officer because the evidence is simply an indication that the father denied any problems and was not prepared to discuss that with the probation officer. [ 42 ] The father gave evidence that he is the father of the child and that he is able and capable of raising his daughter, and that the Director has compiled nothing but lies about him, the mother and their child.

Furthermore, the Director treats the child inappropriately and exposes the child to harm. The father sprinkled throughout his evidence reference to the Child, Family and Community Service Act , s. 4 and the Canadian Charter of Rights and Freedoms . [ 43 ] The father, when he was asked a question, seemed in his evidence to give evidence that both he and the mother had their concerns about the Ministry.

The father says in his evidence that the Ministry has been making false claims about him getting too close to them in a threatening manner, and that he is a sick individual who sought psychiatric help from a doctor in Winnipeg for years. I do not propose dealing with the evidence of the father in its entirety, but suffice it to say that whenever this witness has to acknowledge that someone said something bad about him, he says that the person betrays him and makes up stories for no reason. [ 44 ] For example, Dr. Kuchenmuller’s report, he says is based on a stack of lies.

He points out that whatever they would do as parents he is of the opinion that the Ministry would interpret it as being contrary to the child's best interest, and that they as parents were not interested in doing positive things for their child.

He acknowledges that there was a no contact order between himself and the mother, but he says that they ignored the no contact order because of the word of God, “Let no man put asunder.” [ 45 ] As well, it was pointed out that the father damaged the apartment he lived in, and when this was put to him and that he received an eviction notice, and pulled a telephone cord out of the wall, he said, “I believed it was hard to get a damage deposit back and they had my damage deposit so I caused damage.” He said that what he did was he damaged his own property, and therefore, he had prepaid for the damage so he felt justified in causing damage to his goods.

He says, as well, that he is entitled to his belief system, and if sometimes that is contrary to the law, that is the way it goes. [ 46 ] The mother did not really partake in the trial. She would come in, leave, return and then leave for the day. She was at the trial for much less than one would hope.

She would sit in the gallery for a short time, stand in, stand up, interrupt a witness whose evidence she apparently did not like, with statements that were not really relevant, and then leave the courtroom, usually for the balance of the day. [ 47 ] The father acknowledged that he had made inappropriate telephone calls and on the stand apologized. Unfortunately the apology was hollow. What do I mean by that? Well, the father had counsel at the beginning of the trial as I have set out above, and after hearing the recorded voicemail he had left for Ms.

Cheng, the father gave this evidence: Q What is your reaction to hearing your voice on that recording? A I am disgusted, ashamed, apologetic, and I am very sorry for making her upset. The threatening tone of it, the racial words, the derogatory comment, the vulgar language. [ 48 ] That conversation with Ms. Cheng was made in April, 2009. An apology in court was made in June of 2010. And yet he had left similar types of messages after that, during the time the trial was adjourned.

He said in answering a question in cross-examination when a statement was put to him about a recent threatening-type message he left, “I called him a fucking piece of shit, not a big piece of

shit.” [ 49 ] At the trial on September 16th, 2010, I was able to observe the reaction of the witness -- witnesses say they observed when they gave their evidence. The father went into a diatribe where he used similar, if not identical words, to that he had used in the hospital when speaking to security and the nurses when the child was born; when speaking to Leslie Vaughan and leaving messages; when leaving voicemails for Ms. Cheng and at other times.

What the transcript will not reflect is the father standing up in the witness box, leaning over the witness box and shouting and pointing at various people in the courtroom and using foul and obscene language. [ 50 ] I am, of course, entitled to take that into account. In L.K.R. v. S.R ., [2006] B.C.J. No. 3366 , Provincial Court, L.K.R. applied for sole custody and guardianship of her granddaughter. The child’s mother, D.J., filed a counterclaim for the same relief.

In his judgment granting sole custody and guardianship of the child to the grandmother, Romilly, J. stated at paragraph 73: [73] It was unfortunate indeed that Ms. J. was not represented by counsel, because by conducting her own case, and giving me an opportunity throughout to observe her behaviour, she only succeeded in making the disparity between herself and Ms. R. all the more apparent by her frequent irrational outbursts. I should however, state that the outbursts went beyond the emotional outbursts that one has come to expect when a mother is fighting for custody of her child, and are excusable.

I find that her behaviour in some small way contributed to my decision about her rationality, if she was called upon to parent. [ 51 ] Similarly, in Jones v. Scheltgen , 2003 CanLII 2389 (ON SC) , [2003] O.J. No. 4417, from the Ontario Supreme Court, where Mrs. Jones, the wife, applied for custody of their daughter without access by the husband, Mr. Scheltgen. In his judgment Campbell, J. made numerous references to Mr. Scheltgen’s outburst in court, remarking that, paragraph 7: [7]... Mr. Scheltgen is guilty of contempt in the face of the court.

I do not cite him for that behaviour; however, the letter of apology is sufficient to prevent that possibility. Rather, Mr. Scheltgen’s behaviour both corroborates and confirms the mother’ s witnesses’ views that he can be belligerent, intimidating, demanding, aggressive, unreasonable and volatile. [ 52 ] And at paragraph 16: The affidavits and the oral evidence presented at the hearing establish that Mr. Scheltgen is inconsistent and unrealistic in his demands and expectations. Mr.

Scheltgen’s courtroom antics prove that he has yet to successfully complete the adult formative process, and cannot yet be trusted with the kind of attentive, positive parental focus to which (his daughter) is entitled. [ 53 ] I should, of course, make it abundantly clear that I do not rely solely on what I observed in the courtroom. It is, as Judge Romilly so aptly put it, “The outbursts went beyond the emotional outbursts that one has come to expect when a [Parent] is fighting for custody of her child, and are excusable.” [ 54 ] The mother did not appear and did not make any submissions.

She attended to give her evidence in chief which consisted of pointing out that there was no proof of any of the concerns of the Director because they had no videos, physical evidence or eyewitnesses to prove what they complained of. On the one occasion I attempted to tell her that I agreed with her position on a particular point. She said, “You’re being tricky. Stop being tricky.” [ 55 ] The father attempted to ask the mother questions and she refused to answer his questions and left the witness stand. She agreed to answer questions from counsel for the Director, but did not return to court to be able to do so.

Even the father said in his submissions, “K. does have some issues. She feels she is being attacked and yet not really being attacked.” [ 56 ] The father says that he is seeking access for the mother and a last chance order for himself.

He refers to his constitutional rights; that is, the Canadian Charter of Rights and Freedoms, s. 4 of the Child , Family and Community Service Act, a Client Bill of Rights , the United Nations Child Bill of Rights -- I think he means the United Nations Convention on the Rights of the Child , and said that the behaviour of the Ministry offended all of them. [ 57 ] The father correctly says that just because it is written down in a report to court or a document does not make it a true fact.

He, of course, adds that everything written down about him that puts him in unfavourable light is one of the many lies of the Ministry. [ 58 ] He points out that he exercises access when permitted, and that he is appropriate with the child. When it is suggested that perhaps he should attend on a counsellor or a program to deal with his anger and his lashing out, when for him he reaches a tipping point, he says that such is not necessary.

When asked why he has not made arrangements, either prior to or during the lengthy adjournment, he said that he had made arrangements and he was going to visit a counsellor the next week.

Furthermore, he says, “Jesus Christ is a wonderful counsellor and what need do I have of some earthy counsellor who is bound to sin, et cetera, molest children and whatnot.” [ 59 ] The father called his pastor as a witness and she was able to say that based on what the mother, and particularly the father had told her, she is satisfied that the Ministry is not looking after the best interests of the child, and that clearly, this is a mistake by the Ministry which has led to a cover-up.

She also points out that she has not seen any flare-ups by the father that are of any concern, but she has seen him agitated and frustrated. However, she adds, her parish being in the Downtown Eastside of Vancouver, she says she is used to seeing things “flying”. [ 60 ] The Director seeks the order the two-and-a-half-year-old child, J.R.L.Y., born May 27, 2008, be in the continuing custody of the Director. The Director says in their submissions that at the time of the birth of the child they had a number of concerns:

1. The mother was not able to parent alone. She had health problems and appeared socially isolated. 2. The mother and father had no stable housing at the time of discharge from the hospital. 3. The mother had mental health issues. 4. The father had a lengthy criminal history and uncontrolled anger problems. [ 61 ] As an aside, I am not satisfied that the father did have the lengthy criminal history that the Director hinted at. [ 62 ] As to the mother’s ability to parent, I agree that there are valid concerns. I do not propose setting out again what occurred during the trial.

Suffice it to say that when the mother was present her position seemed to be inappropriate the majority of the time, and her coming and going when it suited her caused me some concern. However, Mr. Hunt (phonetic) did say at times when the mother had decided to absent herself for various reasons – such as, she was tired, she had a headache, she was not well. But during one of those times where she was staying at home she did manage to fax a complaint to the Ministry Office. [ 63 ] The father suggested as a result of this trial a “last chance order”.

I gather that he is referring to an order made pursuant to s. 49(7)(

b) of the Child, Family and Community Service Act . That provides as follows:

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

b) that the child remain in the temporary custody of the director or a person other than the parent for a specified period of up to 6 months. [ 64 ] The Director is opposed to this. Counsel for the Director says the order is unworkable as the parents will not work with anyone. They do not trust anyone. G. continues to be involved with K. and both are isolated from everyone.

Under the circumstances there is, “No significant likelihood that the circumstances that led to the removal will improve within a reasonable period of time where the parent will be able to meet the child's needs, as would be required to justify a last chance order.” They would ignore any restrictions or conditions based on God’s law just as they did with the no-contact order. [ 65 ] Even the father has said, “My IQ is between 141 to 166. And changes, what changes do I need to make?

All I need is more time.” The father’s position can be summed up in his argument where he said, “They want and covet our daughter and make false claims.” Both parents have repeated almost as their mantra, “The Ministry makes false claims, the Ministry lies.” [ 66 ] I am satisfied there should be a continuing custody order for the reasons I have set out above, and therefore the child shall be in the continuing custody of the Director as the parents are unable to resume custody of the child, and there is no significant likelihood that the circumstances that led to the child's removal will improve within a reasonable time or the parent will be able to meet the child’s needs.