DIRECTOR OF MINISTRY OF CHILDREN v. FAMILIES, 2022 BCPC 140

Citation: B.C. (Child, Family and Community Service) v S.B. and D.M.B 2022 BCPC 140 Date: 20220705 File Nos: 15007, 17506, 17509 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: K.B. M.B. B.B. BETWEEN: DIRECTOR OF MINISTRY OF CHILDREN AND FAMILIES APPLICANT AND: S.B. PARENT AND: D.M.B. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Director: K. Surcess Counsel for the Parent: J. Rempel Appearing on his own behalf July 5, 2022: D.M.B. Place of Hearing: Quesnel , B.C. Date of Hearing: June 1, July 4, 2022 Date of Judgment: July 5, 2022

[ 1 ] S.B. is the mother of four children: N.B., K.B., M.B., and B.B. N.B. was apprehended into the care of Director of Child, Family and Community Services Act (“ CFCSA ”) from the Vancouver Children’s Hospital when she was four months old. She is now in the continuing care of the Director. Since their birth, K.B., M.B., and B.B. have also been repeatedly removed from their mother’s care. The Court Electronic Information System (“CEIS”) has in excess of 238 documents, the vast majority of which have been filed by the Director.

The litigation has also spawned in excess of 120 court appearances. [ 2 ] The Director is before the court having removed S.B.’s three youngest children on February 8, 2022. The Director seeks an order pursuant to s. 35(2)(

a) of the CFCSA that K.B., M.B., and B.B. (collectively, the “Children”) remain in the Director’s interim custody pending a protection hearing. The catalyst to this most recent removal was the children’s infection with head lice. The Director says this is further evidence that S.B. does not have the capacity to parent her children absent “wrap around” services. S.B. asks the Court to return the children to her care with or without supervision on such terms and conditions as the court deems appropriate. Issue: [ 3 ] The issues before the court are as follows:

a) Was the director justified in removing K.B., M.B., and B.B. from S.B.’s care on February 2022? Specifically, at the time the children were removed: i. Did the Director have reasonable grounds to believe the Children needed protection? ii. Was there immediate danger to the Children’s health or safety? iii. Were there less disruptive measures available?

b) If the Court concludes the removal was justified, what is the best way to care for the children pending the conclusion of the protection hearing? Presentation Hearing: June 1, 2022 [ 4 ] This is a decision after a presentation hearing held June 1, 2022, in the Provincial Court of British Columbia, at [omitted for publication], BC, with respect to court Files [omitted for publication]. The Director attended the hearing represented by Ms. K. Surcess, together with Christina Bara, social worker and delegate for the Ministry of Children and Family Development (“MCFD”).

S.B. attended in person and represented by legal counsel, Mr. J. Rempel. G.M. is K.B. and M.B.’s biological father and D.M.B., is B.B.’s biological father. Neither father attended at or participated in the presentation hearing. [ 5 ] At the presentation hearing I heard witnesses called on behalf of the Director and S.B. At its conclusion, I reserved my decision. I requested and received further submissions from counsel on July 4, 2022. These are my Reasons for Judgment.

In determining the outcome of these proceedings, pursuant to s. 68 of the CFCSA , I have reviewed and taken into consideration the evidence contained in court files [omitted for publication]. This includes all the documents filed in CEIS, orders, transcripts, and exhibits. [ 6 ] Given the on-going nature of these proceedings, I have attempted to reconstruct a chronology of events from the three court files. Suffice it to say this was a daunting and time-consuming task given the number of files, documents, and court appearances.

Background Information [ 7 ] S.B. is [omitted for publication] years old, having been born on [omitted for publication]. She is the biological mother of three daughters and one son:

a) N.B. born [omitted for publication];

b) K.B. born [omitted for publication];

c) M.B., born [omitted for publication]; and

d) B.B., born [omitted for publication]. [ 8 ] G.M., born November 17, 1985, age 36, is the biological father of N.B., K.B., and M.B. G.M. is a registered member of the [omitted for publication] Indian Band of the Cree Nation in Alberta. N.B., K.B. and M.B. are also registered members of the [omitted for publication]. [ 9 ] B.B.’s biological father, D.M.B. was born on [omitted for publication], and is now [omitted for publication]. D.M.B. is not Indigenous and B.B. is not a registered member of any Indigenous group. [ 10 ] S.B. was born in Surrey.

Her father died a motor vehicle accident in 1995 when she was four or five years old. Her mother was a severe addict and died in 2011, when S.B. was a teenager. S.B. has one brother and three half-brothers: [reference omitted for publication]. [ 11 ] S.B. was raised predominately in the Lower Mainland by her paternal grandmother, Z.S. She describes her childhood home as unstable and abusive. Z.S. died in 2010. When she was 13 and in Grade 8, S.B. moved to [omitted for publication] to live with her maternal grandmother, P.M. P.M. was S.B.’s guardian for five years when S.B. was a teenager.

[ 12 ] S.B. self-identifies as Indigenous through her mother who she says was affiliated with the Saskatchewan [omitted for publication] Nation located about 40 miles north of [omitted for publication], Saskatchewan. The [omitted for publication] Band does not recognize S.B. as a member so S.B. does not have First Nation’s status. [ 13 ] S.B. dropped out of high school in Grade 10, and began abusing drugs and alcohol. She has never had a job and survives on social assistance and government benefits. [ 14 ] S.B. has her own cognitive challenges and is now bereft of familial support.

She has never had a close relationship with her half- brothers. For some time, she maintained her familial connection with her younger brother, J.B., who also resides in [omitted for publication] BC. J.B. is [omitted for publication] years old, having been born on [omitted for publication]. He suffers from FASD. P.M. obtained an order for guardianship and custody of J.B. on October 30, 1995, in Surrey Provincial Court. He has a criminal record and a history of violence. Two years ago, J.B. assaulted S.B. while intoxicated and as a result was prohibited from contacting her.

Z.S. died when S.B. was 17 or 18 years old. P.M., who is now [omitted for publication] years old resides in [omitted for publication], a long term care facility operated by the Northern Health Authority in [omitted for publication], BC. [ 15 ] The fathers of S.B.’s children are not actively involved in the children’s lives. The Director has ongoing concerns as to the fathers’ parenting capacity. G.M. has a lengthy criminal record, which includes convictions for violent and sexual offences. The Director considers him a serious ongoing risk to the children’s safety and well-being.

S.B. has a protection order against G.M. that expires in 2028. B.B.’s father, D.M.B., suffered a brain injury as a result of a motor vehicle accident and has struggled intermittently with alcohol and drug misuse. [ 16 ] The Director has repeatedly removed the children from S.B.’s care over the past eight years. Generally, the Director or the Court returned the children to S.B.’s care under supervision. Consequently, S.B.’s parenting time with the Children was more often than not subject to the Director’s oversight, surveillance, direction, guidance, management, superintendence and control .

August 5, 2011 Removal of N.B. [ 17 ] S.B. gave birth to N.B. on [omitted for publication], at 27 weeks gestation. N.B.’s premature birth was the result of a physical altercation between S.B. and G.M. S.B. was in labour for two days without medical attention because G.M. refused to bring her from the [omitted for publication] Reserve where they were then living to [omitted for publication] where she could receive medical attention. [ 18 ] N.B is physically and cognitively disabled. She suffered p eriventricular leukomalacia (PVL) at birth resulting in cerebral palsy. She is significantly developmentally delayed.

After she was born, N.B. remained in the Children’s Hospital Neonatal Intensive Care Unit in Vancouver BC, for over four months. In her February 2, 2016, affidavit, SW Jasreen Randhawa states (CEIS 109): 8. [N.B.] has several diagnosis including global developmental delays, oral delays, fine and gross motor delays, swallowing/feeding issues, cerebral palsy, respiratory distress syndrome, chronic lung disease, vocal cord palsy, reflux and recurrent reflex and subglottic stenosis.

The prognosis of these diagnosis is unknown . . . [N.B.] will require ongoing medical follow-ups, supports and assessments for the duration of her life. . . [ 19 ] The Director removed N.B. from S.B.’s and G.M.’s care on August 5, 2011, when N.B. was about to be discharged from the BC Children’s Hospital. Neither parent engaged with the medical staff to learn about N.B.’s complex medical issues, nor did they develop a discharge plan of their own. In fact, S.B. and G.M. had returned to [omitted for publication]. They were homeless, without a residence, equipment, ability, or interest in parenting N.B.

They left Vancouver and never kept in contact with the Children’s Hospital to check on the status of their infant daughter. None of the NICU nurses, the Director’s staff, nor even P.M. could contact S.B. or G.M. for discharge care planning. The Director determined S.B. and G.M. had abandoned N.B.

The Director removed N.B. from the parents’ care and placed her with foster parents, T.N. and L.C., where N.B. continues to reside to this day. [ 20 ] In CFCSA court file [omitted for publication], on August 9, 2011, the Director filed its Presentation Form (Form 1), Report to Court (Form A), and Court Plan of Care with the [omitted for publication] Provincial Court Registry (CEIS 1 and 2).

The Director sought interim custody of N.B. with access to S.B. and G.M. and N.B.’s extended family, at the discretion of the Director. [ 21 ] On August 10, 2011, Judge Morgan nominally commenced the presentation hearing, which was adjourned sequentially to August 24, 2011, September 28, 2011, and October 19, 2011 (CEIS 3, 4, 5). [ 22 ] On October 19, 2011, N.B. was placed in the interim custody of the Director pursuant to s. 35(2)(

a) of the CFCSA , with supervised access to S.B., G.M., and her extended family (CEIS 5). [ 23 ] On November 10, 2011, the Director filed an application for a temporary custody order together with a Plan of Care (CEIS 6 and 7). On November 23, 2011, Judge Morgan nominally commenced the protection hearing (CEIS 13). N.B. remained in the interim custody of the Director until December 14, 2011, when Judge Morgan, by consent, placed N.B. in the temporary custody of the Director pursuant to s. 41(1)(

c) of the CFCSA (CEIS 14). This temporary custody order remained in force until December 13, 2013, with interim court appearances or extensions orders made pursuant to s. 44(3)(

b) of the CFCSA on February 22, 2012 (CEIS 26), April 11, 2012 (CEIS 27), July 11, 2012 , August 22, 2012 (CEIS 29), November 21, 2012 (CEIS 30), February 13, 2013, February 27, 2013 (CEIS 37), May 24, 2013 (CEIS 37), June 19, 2013 (CEIS 40), September 18, 2013, October 9, 2013,and December 3, 2013 (CEIS 46). [ 24 ] On February 9, 2012, and again on February 1, 2013, the Director applied for a continuing custody order of N.B. pursuant to s. 49(5) of the CFCSA (CEIS 15, 16, 31 and 32). [ 25 ] On August 10, 2012, the Director filed an agreement made in mediation that N.B. would remain in the temporary custody of the Director with both S.B. and G.M. entitled to access pursuant to s. 55 of the CFCSA , supervised at the discretion of the Director.

G.M. did not attend the mediation. The mediated agreement set out a visiting

schedule for S.B. The Director committed to keep S.B. apprised of N.B.’s medical appointments and facilitate her attendance at various programs, visits and appointments.

[ 26 ] By December 2, 2013, S.B. had not successfully completed any services the Director had recommended, and G.M. had ceased all contact with the social workers. [ 27 ] On December 2, 2013, S.B. signed a written consent before legal counsel, S. Grattan, agreeing to the Court placing N.B. in the continuing custody of the Director with reasonable access to the parents until N.B. was adopted. [ 28 ] On December 13, 2013, Judge Morgan ordered, by consent, that N.B. be in the continuing custody of the Director pursuant to s. 49(5) of the CFCSA (CEIS 46). S.B.

G.M. and their extended family were entitled to supervised access to N.B. until N.B. was adopted. N.B. continued to reside with foster parents, T.N. and L.C. in [omitted for publication]. N.B. suffers from vocal paresis, which places her at risk of aspirating or choking while eating. Consequently, N.B. requires intense supervision. January 22, 2014 Removal of K.B. [ 29 ] On August 22, 2013, the Director learned that S.B. was pregnant with her second child. Social workers say they attempted, albeit unsuccessfully, to engage S.B. in pre-natal services.

On November 28, 2013, Kirsty Casey, delegated social worker for N.B., filed an affidavit in which she stated that the Director had concerns that S.B. had an undiagnosed developmental disability that impairs her ability to parent and care for N.B., given the child’s special need (CEIS 42). [ 30 ] I do note, however, that on December 3, 2013, Rose Tipold, an outreach worker for the [omitted for publication] and District Children’s Development Centre, confirmed that S.B. had participated in Healthy Mothers, Healthy Babies Pregnancy Outreach Program on an ongoing basis from June 25, 2013, to December 3, 2013.

K.B. was born on January 18, 2014. Social Worker Wilson attended at the hospital and developed a safety plan which required S.B.’s parenting time be supervised at all times by K.B.’s maternal great grandmother, P.M. The safety plan also prohibited G.M. from having any unsupervised contact with K.B. [ 31 ] During S.B.’s discharge from the hospital, it became known that S.B.’s brother, J.B. was residing with P.M. Although the Director approved of P.M. as a caregiver, they were not prepared for K.B. to reside in the same residence as J.B., given his penchant for violence.

J.B. had just turned 19 years old, and P.M. refused to evict him from her home. On January 22, 2014, presented with no alternative family plan, the Director removed K.B. from S.B.’s care and placed her in the foster home of T.N. and L.C. [ 32 ] On January 27, 2014, the Director filed a Presentation Form, Report to Court (Form A), and Plan of Care. Social workers expressed concerned about S.B.’s lack of parental capacity and her inability or unwillingness to protect K.B. from G.M.(CEIS 44, 50).

The parties appeared in [omitted for publication] Provincial Court before Judge Morgan for the presentation hearing on January 29, 2014 (CEIS 47). The hearing presentation hearing was adjourned sequentially to February 3, 2014, February 14, 2014, February 26, 2014, and March 3, 2014 (See: File [omitted for publication], CEIS 47, 48, and 59). [ 33 ] On February 5, 2014, Dr. Judy Dercksen provided a letter to MCFD wherein she states: [S.B.] is in again today and has brought Charlene as her support person and advocate.

She is very concerned about losing the rights of learning to get to know her daughter from the first few months. These are critical bonding times for her and [K.B.] and she is showing most appropriate responsible behaviour in her visits. She has the support of her grandmother and an advocate / support person Charlene, Jennifer, pregnancy outreach, and Adele, her counsellor. I would fully support [S.B.] obtaining the right to care for her child. I would do my utmost to follow her and [K.B.] in the office and we would work together to ensure that she is managing the care of baby. [ 34 ] On February 7, 2014, Dr.

J.R. Havens provided a letter advising the Director he had performed a mental health assessment of S.B., and was satisfied she had no serious mental illness. Dr. Havens acknowledged that S.B. had some mild social phobia with anxiety and shyness around people, but exhibited no significant depression or serious anxiety disorder. Moreover, Dr. Havens could find no evidence of S.B. suffering from cognitive disabilities. He states: I am unable and have not the training to do a full psychological assessment, but on this visit am unable to feel that there is any serious psychological disorder with this young lady.

I feel comfortable in stating that I cannot feel any harm to her children occurring to them by being in her care. . . . [ 35 ] On March 4, 2014, Dr. Pieter Slabbert provided the Director with a medical report in which he expressed grave concerns about S.B.’s fitness to parent K.B., who at that time was just six weeks old.

This is somewhat ironic because on February 6, 2014, a month earlier, he provided a letter confirming that S.B. had first visited him for a prenatal assessment on September 25, 2013, and thereafter on September 30, October 23, November 19, December 19, 2013, January 8, 2014, and January 20, 2014. [ 36 ] Eventually, P.M. capitulated to MCFD’s demands and evicted J.B. from her home. On March 5, 2014, pursuant to s. 35(2)(

d) of the CFCSA , Judge Morgan placed K.B. in the custody of P.M., effective March 8, 2014, under the Director’s supervision with the following conditions (See: File [omitted for publication], CEIS 58): a. [P.M.] will allow the Director unannounced random access to see [K.B.], privately in her house, or elsewhere, at any time, 24/7, at the discretion of the director; b. [P.M.] will ensure that no adult person, specifically [J.B.] shall reside in, nor stay overnight in the residence of [K.B.], unless preapproved by the Director; c. [S.B.] has been preapproved by the Director to reside in [K.B.’s] residence; d. [P.M.] will ensure [K.B.] receives whatever medical care necessary as is determined by medical professionals;

e. [P.M.] will not allow the father, [G.M.] to have unsupervised access to [K.B.], except at the discretion of the director; f. [P.M.] will ensure that [K.B.] will at all times be in the care of a sober responsible caregiver except as preapproved by the Director; g. [P.M.] will not allow anyone under the influence of alcohol or any controlled substances as defined in the Controlled Drugs and Substances Act , except for valid medical prescriptions, to be in the presence of [K.B.]; h. [P.M.] will attend, participate in and complete a parenting program as approved by the Director; i. [P.M.] will not allow any smoking in the family home, or in the presence of [K.B.]; and j.

The Director may remove [K.B.] if on or more of the conditions are not complied with. [ 37 ] On April 16, 2014, Judge Keyes ordered the nominal commencement of the protection hearing, and adjourned its continuation to June 18, 2014, (CEIS 60). On June 18, 2014, Judge Morgan ordered K.B. remain in the custody of P.M. under the Director’s supervision until August 27, 2014, pursuant to ss. 60 and 41(1)(

b) of the CFCSA (CEIS 62) . The June 18, 2014 supervision order imposed conditions similar to those set out in Judge Morgan’s March 5, 2014 order (File 15007, CEIS 60 and 62). [ 38 ] On August 27, 2014, pursuant to s. 60 and s. 46(1) of the CFCSA , Judge Morgan ordered K.B. returned to the custody of S.B., under the Director’s supervision for three months (CEIS 78).

The order imposed conditions: a. permitting the Director to have unannounced random access visits to see [K.B.] 24/7, anywhere she might be; b. prohibiting [G.M.] from having any unsupervised contact with [K.B.] unless preapproved by the Director; c. prohibiting any adult from residing or staying overnight in her residence when [K.B.] was present, unless preapproved by the Director; d. requiring [K.B.] to receive regular medical and dental care; e. prohibiting any individual to have contact with [K.B.] if that person is under the influence of alcohol or non-prescription drugs, or had used these substances in the previous 24 hours; f. requiring [S.B.] attend and participate in such outreach programs and parenting programs as the director may recommend; and g. empowering the Director to remove [K.B.] if [S.B.] fails to comply with any condition of the supervision order. [ 39 ] On November 12, 2014, the Director filed an Application for an Order (Form 2), seeking an order pursuant to s. 44(3)(

a) of the CFCSA that the August 17, 2014 supervision order be extended for a further three months on the existing terms and conditions (File [omitted for publication], CEIS 69). [ 40 ] On November 26, 2014, Judge Morgan nominally commenced the Director’s application to extend the August 27, 2014 supervision order to January 21, 2015 (File [omitted for publication], CEIS 79). On January 21, 2015, Judge Morgan made a further three-month supervision order, by consent, pursuant to ss. 60 and 44 of the CFCSA on the terms similar to the August 27, 2014 order (File [omitted for publication], CEIS 80).

The matter was then adjourned to February 28, 2015. August 11, 2015 Removal of K.B. [ 41 ] On August 10, 2015, the Director received a report that S.B. was allowing G.M. access to K.B. in P.M.’s home. Social workers were concerned about G.M.’s history of violence, child sexual offences, and ongoing drug use. Moreover, G.M. was prohibited by court order from having any contact with a child under the age of 18 years old.

When social workers investigated they found S.B.’s home “dirty, cluttered, unsanitary, and a risk to [K.B.’s] safety.” [ 42 ] On August 11, 2015, the Director again removed K.B. out of concern for S.B.’s substance misuse, her inability or unwillingness to protect K.B. from G.M., and the unsanitary and unsafe living conditions of her home. The Director placed K.B. with foster parents, T.N. and L.C. [ 43 ] On August 12, 2015, the Director filed a Form 1 Presentation Form and Form A Report to Court, seeking an order pursuant to s. 35(2)(

a) of the CFCSA placing K.B. in the interim custody of the Director with reasonable access to S.B. and extended family, provided at the discretion of the Director and supervised at the discretion of the Director (File [omitted for publication], CEIS 83, 84). Also on August 12, 2015, Judge Gray presided over the nominal commencement of the presentation hearing and then adjourned it to continue on August 26, 2015 (File [omitted for publication], CEIS 85). [ 44 ] S.B. denied facilitating G.M.’s access to K.B.

She says on August 10, 2015, he forced his way into her home uninvited and as a result, she called the police. At the time of this incident, S.B. was six months pregnant with their third child. [ 45 ] On September 23, 2015, S.B. obtained a Protection Order in [omitted for publication] Provincial Court pursuant to s. 183(3) of the Family Law Act , on File [omitted for publication] (CEIS 4). Judge Morgan ordered G.M. have no contact or communication directly or indirectly with S.B. or K.B., or go to any place where they may be.

Judge Morgan also prohibited G.M. from owning or possessing any firearms or related authorizations or licences. [ 46 ] On October 5, 2015, pursuant to s. 35(2)(

b) of the CFCSA and by consent, Judge Galbraith ordered K.B. be returned into the care of S.B. under the Director’s supervision with highly restrictive conditions (File [omitted for publication], CEIS 95). [ 47 ] On November 24, 2015, the Director filed a Presentation Form (Form 1) and Report to Court (Form 5) with respect to M.B.,

seeking a three month order pursuant to s. 41(1)(

a) of the CFCSA that M.B. continue to be in S.B.’scare under the interim supervision of the Director (File [omitted for publication], CEIS 81-92). [ 48 ] On November 25, 2015, Judge Daley nominally commenced the protection hearing and adjourned its continuation to January 27, 2016, when it was again adjourned to February 9, 2016 (File [omitted for publication], CEIS 96). [ 49 ] On February 23, 2016, the Director applied to cancel the order (Form 3) made November 25, 2015, on the basis that since the order was pronounced, S.B. had been working with the Director and engaged in family planning services.

By consent, the Director had random unannounced visits to K.B. and M.B., which did not give rise to any further concerns: CEIS 111. [ 50 ] On March 8, 2016, counsel for S.B. filed an affidavit attaching various documents, including disclosure from the [omitted for publication] Child Development Centre, with respect to S.B., K.B. and M.B. M.B. [ 51 ] M.B. was born on [omitted for publication].

G.M. is M.B.’s biological father. [ 52 ] On November 24, 2015, the Director filed a Presentation Report (Form 1), Report to Court (Form F), and Plan of Care with respect to M.B: (File [omitted for publication], CEIS, 89, 90, and 91). [ 53 ] On November 25, 2015, Judge Daley ordered M.B. remain in the care of S.B. under the Director’s interim supervision, pursuant to s. 35(2)(

b) of the CFCSA with highly restrictive conditions. [ 54 ] On January 20, 2016, the Director filed an Application for an Order (Form 2), for a three-month supervision order pursuant to s. 41(1)(

a) of the CFCSA with respect to M.B., together with a Court Plan of Care (File [omitted for publication], CEIS 98, 99). [ 55 ] On January 27, 2016, Judge Morgan ordered the nominal commencement of the protection hearing and adjourned its continuation until February 9, 2016. N.B. [ 56 ] Since the December 3, 2013 continuing custody order, S.B. had supervised visits with N.B.

The Director also facilitated S.B.’s attendance at N.B.’s specialist appointments, including those at the Cerebral Palsy Clinic in Vancouver, BC. [ 57 ] On August 11, 2015, S.B. sought to vary the continuing custody order made December 3, 2013, with respect to N.B. (File [omitted for publication], CEIS 81). Ultimately, she withdrew this variance application on December 5, 2015. [ 58 ] On October 28, 2015, S.B. filed an Application Respecting Existing Orders or Agreement seeking an order terminating the December 3, 2013, continuing custody order.

In her application, S.B. stated the Director was intending to relocate N.B. to a foster home on Vancouver Island. S.B. says that had she known this would occur, she would not have consented to the December 3, 2013 continuing custody order because the distance would effectively sever N.B.’s bond with her biological family (CEIS 87). [ 59 ] On January 29, 2016, S.B. filed an affidavit in support of her application to terminate the December 3, 2013 continuing custody order (CEIS 104).

She averred that she had exercised regular visits with N.B. since December 3, 2013, at the MCFD offices, at first once per week, and subsequently, once every second week.

S.B. believes she has proven to the Director that she does have the capacity to parent N.B. [ 60 ] On February 2, 2016, SW Randhawa filed an affidavit setting out a chronology of N.B.’s history with the Director, the inconsistency of S.B.’s visits with N.B., and the Director’s permanency planning for N.B. (CEIS 107, 109). [ 61 ] On March 8, 2016, Judge Galbraith granted S.B. permission to apply to cancel the December 3, 2013 continuing custody order with respect to N.B. (CEIS 118). [ 62 ] On November 23, 2016, SW Randhawa filed an affidavit in which she described S.B.’s inability or unwillingness to attend at N.B.’s medical appointments in a consistent and timely manner.

The Director also had concerns that S.B. was unable to absorb and apply the information provided by N.B.’s healthcare providers (CEIS 121). Because of the nature and extent of N.B.’s disabilities, her caregiver had to exercise extreme vigilance to keep N.B. safe. [ 63 ] S.B.’s application to set aside the December 3, 2013, continuing custody order with respect to N.B. was heard sporadically over the next six years. On March 20, 2018, the proceedings were extended when the Director sought to reopen its case and place before the court evidence of S.B.’s capacity to parent from Dr.

Eirikson’s parental capacity assessment, the findings of the SCAN clinic, and Director’s presentation forms for K.B., M.B. and B.B. (File [omitted for publication], CEIS 140). [ 64 ] The proceedings to terminate the December 3, 2013, continuing custody order concluded on May 30, 2022, when S.B. withdrew her application. June 23, 2017 Removal of K.B. and M.B. [ 65 ] On June 12, 2017, the Director received a report that K.B., age 3, and M.B., 20 months, had been found unattended wandering along Highway 97 in [omitted for publication] at 11:30 pm.

Some unidentified person returned the girls to P.M., whose care they were in at the time of their escape. According to the Director, P.M. had fallen asleep and was unware of the girls’ absence. On June 19, 2017, in a meeting with SW Jaworski, both S.B. and P.M. denied this incident occurred. [ 66 ] Ten days later, on June 22, 2017, K.B. and M.B. arrived unattended at Tim Horton’s restaurant on [omitted for publication] at 7.00 p.m. The children were supposed to be in the care of their great grandmother. At that time, P.M. was 77 years old and in failing

health. She was no longer capable of properly supervising the children. The RCMP officers attended at Tim Horton’s in response to a call from a concerned citizen. When S.B. arrived on the scene she told the officer she had been looking for K.B. and M.B. for over an hour, but during that time had not called the RCMP to report the girls missing. [ 67 ] As the result of the June 12 and 22, 2017, complaints, the Director did not believe a supervision order would be adequate to protect the children from harm or immediate danger.

On June 23, 2017, the Director removed K.B. and M.B. from S.B.’s care out of the concern the children were been neglected and placed them with foster parents T.N. and L.C. [ 68 ] On June 23, 2017, Dr. Buys of the [omitted for publication] Hospital examined K.B. and M.B. He opined that both girls were showing signs of neglect. K.B. and M.B. exhibited scrapes and bumps throughout their body. They also suffered from molluscum contagiosum (a viral skin infection) and exhibited signs of poor hygiene.

M.B. had severe diaper rash, bruising on her buttocks and marks on her feet from walking barefoot. [ 69 ] On June 26, 2017, the Director filed a Presentation Form and on June 27, 2017, and a Form A Report to Court. The Director sought an order pursuant to s. 35(2)(

a) of the CFCSA that K.B. and M.B. be placed in the interim custody of the Director with reasonable access to S.B. and extended family provided at the discretion of the Director, and supervised at the discretion of the Director: (File [omitted for publication], CEIS 124, 125). [ 70 ] On June 27, 2017, Judge Bayliff nominally commenced the presentation hearing and adjourned it to July 26, 2017, to fix a date for its continuation (File [omitted for publication], CEIS 133).

The hearing date was sequentially adjourned to September 27, 2017, October 13, 2017, November 1, 2017, December 20, 2017, and January 3, 2018. [ 71 ] On August 17, 2017, K.B. and M.B. were fully assessed by the Suspected Child Abuse and Neglect Clinic (SCAN). The SCAN Clinic confirmed the girls were inadequately supervised at home and neglected physically and medically. [ 72 ] On October 20, 2017, the Director filed an Application (Form 2), seeking an order pursuant to s. 59(1)(

a) of the CFCSA compelling S.B. complete a Parental Capacity Assessment, with Dr. Paul Eirikson, PhD, Registered Psychologist (File [omitted for publication], CEIS 130). [ 73 ] On November 1, 2017, Judge Galbraith granted the Director’s application requiring S.B. complete a Parental Capacity Assessment, pursuant to s. 59(1) of the CFCSA . On December 4, 2017, S.B. completed the assessment with Dr. Eirikson. The report was lengthy – 55 pages (CEIS 152). Dr.

Eirikson conducted an extensive review all relevant documentation on the Director’s file, the Child Development Centre (“CDC”), Axis Family Resources (“Axis”), and various medical clinics, He interviewed S.B. at length, and administered psychological and cognitive tests. Dr. Eirikson observed S.B. interact with N.B., K.B., and M.B., and he conducted a home visit to S.B.’s residence. Dr. Eirikson also interviewed: a. P.M., S.B.’s maternal grandmother; b. Jennifer Vickers, a Carrier Chilcotin Family Service Support Worker; c.

Charlene Vankoughnett, Fetal Alcohol Spectrum Disorder Outreach Worker for the of the [omitted for publication] Native Friendship Centre; d. Penny Sterling, the Infant Development Program Worker from the [omitted for publication] Child Development Centre; e. Crystal Dickson, the Speech and Language Therapist for the [omitted for publication] Child Development Centre; and f. Foster parents T.N. and L.C. [ 74 ] Dr. Eirikson attempted to interview B.B.’s father, D.M.B., and administer psychological and cognitive testing to help assess his parental capacity D.M.B., however, refused to participate. Dr.

Eirikson did review documents pertaining to D.M.B.’s medical, criminal and social history, as well as documents relating to G.M.’s criminal history. [ 75 ] With respect to S.B., Dr. Erickson concluded: a. [S.B.] suffers from cognitive deficits which impairs her parenting abilities, including: (

a) borderline intellectual functioning; (

b) moderate memory deficits; and (

c) below average executive functioning. [S.B.’s] judgment is shored up by individuals and support people around her who advise her or speak for her or help her recover from periods of poor daily routines and organizational judgment. Dr. Erickson commented that it was an open question as to whether alcohol and drug abuse during her mother’s pregnancy have affected [S.B.’s] neurocognitive functioning; b. Alcohol use did not appear to affect [S.B.’s] parenting at the time of the assessment.

Her lack of candor, however, may indicate [S.B.’s] denial of drug or alcohol use are untrue; c. [S.B.] does not demonstrate serious mental health issues related to depression, anxiety or psychosis. Her primary deficits are developmental neurocognitive deficits and trauma which impair her daily functioning and judgment; d. [S.B.] does not recognize risk to the children when it presents, but she does make adjustments, sometimes, when external influence is brought to bear on her. In Dr.

Erickson’s view, with respect to her ability to recognize, prevent, or mitigate risk to the children, [S.B.], will always require external monitoring and intervention as needed; e. It is not clear that [S.B.] would set personal boundaries for safety for herself and the children as they relate to whom she would let into the children’s personal spheres; f. [S.B.] was not able to parent [N.B.], [K.B.] and [M.B.] as a group of three children. [B.B.] was yet to be born; and

g. Over a period of several years, at different times, while in [S.B.’s] care, [K.B.] and [M.B.] have been subject to physical neglect, hygiene neglect, medical neglect, and supervision neglect. [ 76 ] Dr.

Eirikson concludes his parenting capacity assessment with the following opinions (at p. 54): In my opinion, the history indicates that [S.B.] may show temporary improvements, but the likelihood points strongly towards reverting to an unsafe or unsecure home for the children which would relate to supervisory, medical or hygiene neglect, as it did in the past and, in my opinion, is likely to in the future since the cognitive deficits are ongoing.

In my opinion, it is likely that [S.B.] will show skills while supports are involved and will regress when supports are not present . . . [ 77 ] On January 4, 2018, at the conclusion of the presentation hearing arising from the June 23, 2017 removal, Judge Galbraith ordered K.B. and M.B. returned to the custody of S.B. under the interim supervision of the Director, pursuant to s. 35(2)(

b) of the CFCSA on stringent terms and conditions (File 15007, CEIS 138). In his Reasons for Judgment delivered on January 4, 2018, Judge Galbraith noted: a. there was no longer any issues of [S.B.] facilitating [G.M.’s] access to her children; b. [S.B.] had been cooperative and had availed herself of all available MCFD services; c. [S.B.] was in contact with the Child Development Centre; g. [S.B.] was keeping in touch with Jennifer Vickers, a support worker for the Carrier Chilcotin Family Services; d. [S.B.] was maintaining her home up to community standards of cleanliness; e.

The precipitating event to the children’s June 26, 2017, removal, was their wandering unsupervised at night in a high traffic area in [omitted for publication]. At the time of this event, the children were in the care of [P.M.], a person who in the past, the MCFD had approved as a caregiver to the children and resource and support person for [S.B.]; f. The physician’s observations post-removal of poor hygiene, diaper rash, and bruising were peripheral issues. The children had been seen by their family doctor just prior to their removal and the doctor did not note any of these conditions Dr. Buys reported; and g.

Despite Dr. Erickson’s opinion [S.B.] did not have the proper capacity to parent her girls, she had been doing just that without significant problems for 20 months. [ 78 ] Judge Galbraith concluded (at para. 9) the Director had reasonable grounds for removing K.B. and M.B. from S.B.’s care, but the degree or extent of the risk to the Children was not of a sufficient magnitude to require they be kept in the Director’s interim custody. Judge Galbraith found the risks could be managed by a supervision order.

On January 4, 2018, Judge Galbraith ordered K.B. and M.B. returned to S.B.’s care under the following terms and conditions: 1. [S.B.] will allow the Director unannounced random access to [K.B.] and [M.B.] privately in her home, school or elsewhere, at any time, 24 hours a day, seven days a week, at the discretion of the Director; 2. [S.B.] will ensure the children receive regular medical and dental treatment and follow up with referrals made and allow the Director to contact the children’s doctor and dentist to confirm the children’s ongoing treatment; 3. [S.B.] will not allow anyone under the influence of alcohol or non-prescription drugs in the children’s presence; 4. [S.B.] will ensure the children are supervised at all times with [D.M.B.] and [J.B.] and the supervisor is pre-approved by the Director; 5. [S.B.] will only leave the Children with individuals that are pre-approved by MCFD; 6. [S.B.] would receive a protective intervention order (“PIO”) between [G.M.] and the children. [S.B.] will notify the RCMP and MCFD if [G.M.] is breaching the order and will also advise MCFD if she cancels the PIO; 7. [S.B.] will engage in any and all services recommended by the Director, including daycare, and allow the Director to have access to information regarding attendance, participation, and any concerns; 8. [S.B.] was to supervise the children at all times with [P.M.’s] presence and [S.B.] is an approved supervisor; and 9.

The Director will remove the children if [S.B.] does not comply with the terms of this supervision order. [ 79 ] The presentation hearing was adjourned to the Judicial Case Manager to

schedule a case conference, and the protection hearing was extended to March 14, 2018, pursuant to s. 69 of the CFCSA (File [omitted for publication], CEIS 124), and again to October 13, 2018, November 1, 2018, December 20, 2018, and January 3, 2019. February 15, 2018 Removal of K.B., M.B., and B.B. [ 80 ] On January 4, 2018, when Judge Galbraith returned K.B. and M.B. to her care, S.B. was pregnant with B.B. [ 81 ] On January 20, 2018, the Director held an Integrated Case Management meeting with S.B.’s support workers in order to ascertain her plan for K.B. and M.B. when she went into labour.

At that time, S.B. said she did not have a plan and would think about it (File [omitted for publication], CEIS 20, 21).

[ 82 ] On February 6, 2018, the Director filed an application (Form 2) seeking an order that K.B. and M.B. be returned to S.B.’s care under the Director’s supervision pursuant to s. 41(1)(

a) of the CFCSA . The Plan of Care filed in support of the Director’s application for a supervision order was to remain in place for six months.

The only change to the terms of Judge Galbraith’s January 4, 2018, supervision order (File [omitted for publication], CEIS 138), was the inclusion of the provision that P.M.’s residence needed to be pre- approved by the Director before the children went there (File [omitted for publication], CEIS 1, 6; F[omitted for publication], CEIS 135, 136, and 137). [ 83 ] On February 7, 2018, S.B. filed an Application Respecting Existing Orders or Agreements (CEIS 135) opposing some of the highly intrusive conditions the Director sought in the supervision order.

Specifically, S.B. objected to: a. the fact she was approved to supervise P.M.’s visits with the children, but not her brother’s; b. the restrictions on D.M.B.’s access to the children; c. the Director’s insistence that M.B., who was only two years old, attend day care from 9:30 a.m. to 3 p.m. five days per week; and d. being compelled by the Director to engage in counselling for “her own trauma,” which was not something her own physician recommended. [ 84 ] The Director interpreted S.B.’s objections as her “resisting engaging in services recommended by the Director” (File [omitted for publication], CEIS 21, para. 19). [ 85 ] On February 15, 2018, the Director removed K.B. and M.B. from S.B.’s care upon receiving a report from FNFSW Jennifer Vickers that S.B. had unexpectedly gone into labour early with her fourth child (B.B.).

S.B. had great difficulty crafting a plan of care for K.B. and M.B. when she into labour. In her affidavit filed August 10, 2018 (File [omitted for publication], CEIS 32), S.B. particularized these difficulties, which included the inability or unwillingness by K.B., M.B., and B.B.’s maternal and paternal family members to assist, and the Director’s refusal to approve any of the other people S.B. proposed as caregivers. The Director even rejected Charlene Vankoughnett, the FASD outreach worker, as a potential caregiver (File [omitted for publication], CEIS 21).

S.B. was not able to identify a caregiver for the children who met with the Director’s approval. The Director took the position that S.B. breached Judge Galbraith’s January 4, 2018, supervision order, by going into labour prematurely without having adequate provisions for the care of K.B. and M.B. with an approved caregiver. [ 86 ] On [omitted for publication], S.B. gave birth to a baby boy, B.B. B.B. was born six weeks premature and transferred to the Neonatal Intensive Care Unit in UHNBC.

B.B. had frequent episodes where he stopped breathing (“desats”), an umbilical hernia, and heart murmur (File [omitted for publication], CEIS 22). Because of B.B.’s fragility, S.B. remained in the hospital for two months: (RFJ, December 3, 2018, para.13). [ 87 ] On February 18, 2018, the Director removed B.B. from S.B.’s care, due to concerns about B.B.’s medical vulnerability, S.B’s lack of parenting capacity, and her difficulty in following through with services.

The Director placed B.B. in the foster home of T.N. and L.C., where he would be with his siblings: (See File [omitted for publication], CEIS 21 and 22). [ 88 ] On February 20, 2018, the Director filed a Presentation Form 1 and a Form A – Report to Court with respect to K.B. and M.B. seeking an order pursuant to. s. 41(2)(

b) of the CFCSA , that K.B. and M.B. be placed in the interim custody of the Director, with reasonable access to S.B.and extended family, provided at the discretion of the Director, and supervised at the discretion of the Director (File [omitted for publication], CEIS 3, 4).

In the Form A, the Director states, “Due to lack of planning for caregivers and a current interim supervision order. . . [K.B.] and [M.B.] . . . were removed and placed in a Ministry approved resource, with no less intrusive measures available.” Social worker and MCFD Delegate, Ania Eakin, further states that on February 16, 2018, she received a medical update from Dr.

Dercksen who opined that K.B. had a black eye and that S.B. claims to have informed the Director of this injury, however the Director was unaware of this concern. [ 89 ] On February 21, 2018, the Director filed a Presentation Form 1 (CEIS 1), a Form A – Report to court (CEIS 2), and a Court Plan of Care in file [omitted for publication]. The Director sought an order pursuant to s. 35(2)(

a) of the CFCSA that B.B. be placed in the interim custody of the Director, with reasonable access to S.B. and extended family provided at the discretion of the Director, and supervised at the discretion of the Director (File [omitted for publication], CEIS 1, 2). The Director arranged for S.B. to have supervised visits with her children for an hour or two at the MCFD [omitted for publication] Office or at the Axis centre. The Director claims that S.B. and D.M.B. did not always attend the scheduled supervised visits (See File [omitted for publication], CEIS 21).

Apparently, the Director required S.B. call and confirm her visit by 7:45 a.m. or it would be cancelled. [ 90 ] On February 21, 2018, the presentation hearing for the February 2018 removal of K.B., M.B., and B.B. was nominally commenced before Judge Galbraith and adjourned to March 14, 2018, to confirm the hearing dates. On March 14, 2018, Judge Galbraith ordered the presentation hearing on file [omitted for publication] with respect to K.B. and M.B. be heard together with the presentation hearing on file [omitted for publication] with respect to B.B. [ 91 ] On March 28, 2018, Dr.

Dercksen advised the Director that B.B. was a high risk of Sudden Infant Death Syndrome. A number of these desat episodes have occurred since B.B. was taken into care. His foster mother, T.N., was always able monitor and revive him (See File [omitted for publication], CEIS 22). [ 92 ] On April 11, 2018, Judge Galbraith confirmed the hearing date of the contested presentation hearings with respect to K.B., M.B., and B.B. on CFCSA court files [omitted for publication].

This contested presentation hearings, was sequentially adjourned to May 23, 2018, June 4, 2018, June 6, 2018, June 14, 2018, July 11, 2018, July 25, 2018, August 7, 2018, August 9, 2018, and August 29, 2018. [ 93 ] On May 11, 2018, and again on May 25, 2018, SW Eakin filed affidavits in CFCSA File 17506, setting out her efforts to assist S.B.with crafting a plan of care for K.B. and M.B. prior to S.B. going into labour with B.B. (CEIS 20, 21). These efforts included consultation with S.B., her support workers, her legal counsel, her friends, and the Children’s extended family.

[ 94 ] On June 14, 2018, Cheryl Neville, guardianship social worker and delegate for the Director filed an affidavit setting out S.B.’s access to K.B., M.B., and B.B. between March 1, 2018, and April 18, 2018 (File [omitted for publication], CEIS 22). [ 95 ] On July 13, 2018, S.B. filed an application returnable July 25, 2018, seeking orders that, (

a) the Crown pay $1 for breaching S.B.’s rights under s. 7 of the Charter of Rights and Freedoms ; (

b) the Provincial Court take control over its own process as is necessary for the presentation hearing to conclude on June 14, 2018 (File [omitted for publication], CEIS 24, 16, 31).

On August 3, 2018, S.B. filed an affidavit on file [omitted for publication]. [ 96 ] On August 10, 2018, S.B. filed an affidavit on file [omitted for publication], setting out her personal history and her difficulties in creating a plan of care for K.B. and M.B. before she went into labour with B.B. that would meet with the Director ’s approval (CEIS 32). [ 97 ] The contested presentation hearings arising from the Director’s February 2018 removals came before Judge Galbraith for hearing on October 25 and 26, 2018. At its conclusion on October 26, 2018, Judge Galbraith ordered pursuant to s. 36(3)(b)(

i) of the CFCSA that K.B. and M.B. will be returned to S.B. under the interim supervision of the Director. Judge Galbraith further ordered pursuant to s. 35(2) (

b) of the CFCSA that B.B. also be returned to his mother’s care under the director's supervision. The terms of the supervision order were similar to those set out in Judge Galbraith’s January 4, 2018 supervision order with some variation, as follows: a.

The Director have unannounced random access to the Children privately in [S.B.’s] home, school or elsewhere, at any time, 24 hours a day, seven days a week, at the discretion of the Director; b. [S.B.] will notify the Director in advance of any location where the Children will be staying over night; c. [S.B.] will ensure the Children receive regular medical and dental treatment and follow up with referrals made and allow the Director to contact the Children’s doctor and dentist to confirm the Children’s ongoing treatment; d. [S.B.] will not care for the Children while under the influence of alcohol or non-prescription drugs or while misusing prescription drugs, or allow anyone under the influence of alcohol or non-prescription drugs in the presence of the Children; e. [S.B.] will ensure the Children are supervised at all times with [D.M.B.] and [J.B.], and that the supervisor is pre-approved by the Director; f. [D.M.B.’s] access may be supervised by S.B.; g. [S.B.] will only leave the children with individuals that are pre-approved by the Director.

Jenna Turner, Charlene Vankoughnett, and Gailine Chantyman are approved supervisors; h. [S.B.] will receive a Protection Order between [G.M.] and the Children. [S.B.] will notify RCMP and MCFD if [G.M.] is breaching the order and will notify MCFD if she cancels the Protection Order; i. [S.B.] will engage in any and all services recommended by the Director, including day care, and allow the Director to have access to information regarding attendance, participation and concerns; j. [S.B.] will ensure the Children are supervised at all times with [P.M.] and [S.B.] is an approved supervisor; and k.

The Director will remove the Children if the parent does not comply with the terms of this order. [ 98 ] Judge Galbraith provided his Reasons for Judgment with respect to the October 26, 2018 supervision order on December 3, 2018. [ 99 ] On October 31, 2018, under the Family Law Act file 16603, Judge Galbraith made a ten-year Protection Order restraining G.M. from having any contact or communication directly or indirectly with S.B., or K.B. or M.B., or go to any place they may be.

He also prohibited G.M. from owning or possessing any firearms or related authorizations or licences. [ 100 ] On November 20, 2018, the Director filed an application in Form 2, together with a Court Plan of Care with respect to the February 15, 2018 removal of K.B. and M.B. (File [omitted for publication], CEIS 35, 36). The Director sought an order pursuant to s. 41 (2.1) of the CFCSA (supervision without removal) that K.B. and M.B. be returned to the care of S.B. under the supervision of the Director for three months with the conditions set out in in Judge Galbraith’s October 26, 2018 interim order.

This matter came before Judge Galbraith on November 21, 2018. Both S.B. and D.M.B. appeared, both represented by counsel. Judge Galbraith adjourned the matter to December 3, 2018, for his decision on the Director’s February 2018 applications for interim custody of K.B., M.B. and B.B. [ 101 ] On November 29, 2018, the Director, S.B., and D.M.B. entered into a mediated agreement with respect to K.B., M.B., and B.B. in files [omitted for publication] (CEIS 40) and [omitted for publication] (CEIS 18). In this agreement, the Director, S.B. and D.M.B. agreed: a.

On December 3, 2018, the Director will commence an application for a three month supervision order pursuant to s. 41(1)(

a) of the CFCSA ; b. [S.B.] will ask [J.B.] to call the social worker to set up a meeting in regards to [S.B.] supervising his access to the children; c. [D.M.B.] will provide the Director with certificates of the parenting courses he has completed; d. The Director will complete a referral to counsellor Bruce Landon for [S.B.]; e. The Director will complete a referral to Lisa Lightening to attend the homes of [S.B.] and [D.M.B.] for the purpose of discussing available services the director recommended in the most recent family plan;

f. The Director will speak to the guardianship social worker about setting up a meeting date and time to review the pediatrician report from Dr. Shaunessy with [S.B.] and [D.M.B.]; g. The Director will take into consideration weather conditions that may prevent the children from attending daycare; h. The Director will work with [D.M.B.] on a safety/family plan to address the Director’s concerns regarding [D.M.B.’s] care of the children; i. The parties will meet at the Child Development Centre in [omitted for publication] on January 16, 2019, at 9:00 a.m. to review reports for [K.B.] and [M.B.]; and j.

The parties will meet on a date after January 16, 2019, to determine any daycare changes for [K.B.] and [M.B.]. [ 102 ] On December 3, 2018, Judge Galbraith delivered his reasons for judgment on court files [omitted for publication], with respect to the Director’s February 2018 applications for interim custody of all three children (File [omitted for publication], CEIS 4, 6, 7, 8, 11, 12; File [omitted for publication], CEIS 1).

Judge Galbraith noted: a. the Director’s application ought to have proceeded under s. 36(3) of CFCSA , with respect to court file [omitted for publication], as the Director believed that [S.B.] breached the supervision order Judge Galbraith had made with respect to [K.B.] and [M.B.]; and b. [B.B.] was removed under File [removed for publication], immediately upon his birth, and the Director sought an order pursuant to ss. 30(

d) and (

h) of the CFCSA . [ 103 ] Judge Galbraith identified the salient issue before him was whether S.B.’s inaction in developing a plan of care for K.B. and M.B. when she went into labour was “proof of [S.B.’s] lack of capacity to parent” or “simply evidence of her poverty, lack of resources or support network” (Transcript, CEIS 41, para. 4). Judge Galbraith noted (at paras. 4-6) that K.B. and M.B. had just been returned to their mother’s care on January 18, 2018. S.B. went into labour with B.B. four to six weeks early. Because of B.B.’s extreme prematurity, S.B. was unexpectedly hospitalized with him for two months.

Judge Galbraith found the Director had satisfied K.B. and M.B. were removed in accordance with ss. 36(1)(

a) and (

b) had 36(3)(b). Applying the three part test espoused by Justice Halfyard in D irector, Child, Family and Community Service Act v. H. , 2008 BCSC 701 , Judge Galbraith found: a. At the time, K.B., M.B., and B.B. were removed, there were objectively reasonable grounds to believe that they were then in need of protection and there was no other less disruptive measure that was available that would adequately protect the Children; b. By the time of the presentation hearing, the circumstances had changed. S.B. was no longer in the hospital with B.B.

It would likely have been difficult for any parent to find a suitable person to care for Children for an unexpectedly lengthy hospitalization; and c. Upon reviewing s. 2, of the CFCSA , Judge Galbraith did not consider the risk to the Children was of such magnitude they must be kept in the interim care of the Director. [ 104 ] Judge Galbraith concluded that with sufficient supports, S.B. could safely care for her children under the supervision of the Director and ordered the Children returned to S.B.’s care under the Director’s supervision. [ 105 ] On January 9, 2019, Judge Galbraith ordered pursuant to s.41(1)(

a) of the CFCSA that K.B. and M.B. remain in the care of S.B. under the interim supervision of the Director on the same terms and conditions of the October 26, 2018 interim supervision order, which, in turn, was similar to the January 4, 2018 supervision order, albeit with some changes. [ 106 ] On May 1, 2020, the Director received a report of an altercation between S.B. and her brother J.B. The altercation occurred in S.B.’s residence while J.B. was intoxicated. The RCMP arrested J.B. for assaulting S.B. and placed him on a police undertaking prohibiting him having any contact with her.

S.B. signed the Director’s safety plan agreeing to refuse J.B. access to the Children. [ 107 ] On April 12, 2021, S.B.’s residence burned to the ground while she was with the Children at the Axis centre having a prearranged visit with N.B. S.B. has moved twice since then and now resides in a three-bedroom home at [omitted for publication], BC. She intends to live alone with K.B., M.B., and B.B. [ 108 ] On May 4, 2021, the Director received information that K.B., M.B., and B.B. had untreated head lice. S.B. testified there was an outbreak of lice at the Children’s school, and they became infected.

She denies letting the condition go untreated. Initially, FNFSW Vickers provided S.B. with lice treatment solutions to apply to the Children’s hair. S.B. testified that because the Children’s family physician, Dr. Dercksen, was fully booked for two weeks, she took M.B. to the [omitted for publication] Walk-in Clinic on a couple of occasions between November 2021 and January 2022. The attending physician provided S.B. with medication to treat M.B.’s lice, which she obtained from Shoppers Drug Mart.

S.B. said she used this cream on M.B. and tried to comb out the lice. [ 109 ] On August 5, 2021, the Director received a report that S.B. was intoxicated, along with other adults while the children were in her care. Social workers attended at S.B.’s residence and confirmed this to be the case. They put a safety plan in place forcing S.B. to leave her home. S.B. arranged to stay at the Women’s Shelter for the weekend.

The social workers arranged for D.M.B. to care for the children in S.B.’s residence (notwithstanding the fact that in the past the Director required his parenting time supervised due to his “lack of capacity to parent.”) S.B. returned home and social workers checked in with her daily for two weeks to ensure S.B. was following the safety plan. [ 110 ] On January 31, 2022, the Director received a report that emergency health services attended S.B.’s home to assist P.M. Apparently, someone advised the Director that P.M. had been living with S.B. for the past month.

P.M. was found unbathed, vomiting and slumped over on a couch covered in feces and urine. The Children were in the home screaming, and the reporter described the home as dirty and unkempt. Apparently, P.M., who at this time was 82 years old, was no longer able to care for herself and she is now living in a senior’s long-term care facility.

[ 111 ] On February 1, 2022, SW Bara went to S.B.’s home and made the following observations: a. There was no urine or feces in the home; b. The home was messy; c. S.B. was in the process of moving to a new residence the following day; d. S.B. had company, two females, one of who was drinking an alcoholic beverage (i.e. beer or a cooler). S.B., however, was sober and able to care for her children. S.B. identified these two friends as T.S. and D. LNU; e. B.B. was “very dirty”, but K.B. was clean and healthy; f.

M.B. had matted hair in a ponytail; and g. there were a few empty beer or cooler containers found at S.B’s residence. [ 112 ] K.B. and M.B. told SW Bara they knew what alcohol was, that adults had been drinking in the home and when there was drinking in the home all the visitors slept over and that was sometimes scary. SW Bara made a “verbal safety plan” requiring: (a) [S.B.’s] two female friends leave the home immediately; (b) [S.B.] bathe the children; and (

c) a social worker return the next day. [ 113 ] SW Bara learned from her February 1, 2022, home visit that K.B. and M.B. were not attending school. On February 2, 2022, either SW Bara or someone else on behalf of the Director contacted the principal of Riverview Elementary School. SW Bara states in her affidavit at para. 29 (File 17506, CEIS 48): On February 2, 2022, MCFD contacted [omitted for publication] Elementary School to follow up on [K.B.] and [M.B.’s] disclosure that they had not been attending.

The principal told MCFD that [K.B] and [M.B.] were not at school and that they do not attend regularly, if at all. The school has support staff who go to [S.B.’s] home to attempt to engage [S.B.] and have children attend school. The principal said that the girls are on the food programs and are able to take a backpack home with them each Friday that is full of food, however they are rarely there to do so. The principal told MCFD that [K.B.] and [M.B.] had chronic lice and impetigo since September. [ 114 ] On February 2, 2022, SW Bara attended S.B.’s new home with FNFSW Vickers.

I understand the social workers examined M.B.’s head and concluded M.B. had an “extreme infestation of lice that could be seen moving on her head and her scalp was red, irritated, scabbed over and looked infected.” K.B. and B.B.’s head lice “did not present with the same extreme health concern.” SW Bara advised S.B. the Children needed a medical examination immediately. SW Bara said S.B. “advised that she had taken [M.B.] to Urgent Primary Care” one month prior to treat the condition.

The Director requested M.B.’s medical records which indicated she had not been to the Urgent Primary Care Clinic since March 16, 2021. At the presentation hearing, S.B. says she took M.B. to the [omitted for publication] Medical Clinic, which the Director did not dispute. [ 115 ] S.B. voluntarily placed K.B., M.B., and B.B. in respite care with the Director. S.B. agreed that on February 7, 2022, the Director would have her laundry and furniture cleaned and sanitized in order to combat the lice infestation.

S.B. further agreed to a family plan meeting with SW Bara on February 8, 2022, to address the Director’s concerns of neglect. [ 116 ] The Urgent Primary Care Clinic was only able to see one of the three children. As M.B.’s lice infestation was by far the worse, the Director arranged for M.B. to be examined at the Urgent Primary Care Clinic. The February 10, 2022 Report to Court states: . . . [M.B.] was seen at the Urgent Primary Care Clinic.

The findings state the patient appears unkempt, hair matted, obvious lice noted and the speech slightly delayed, vocabulary more suited to a three to four year old, rather than a six year old. There were nits noted throughout hair – severe, excoriations behind ears bilaterally and crusted lesions throughout the scalp.

The Doctor confirmed that [M.B.] has lice, scalp excoriation with crusting, dental decay, skin lesions at multiple states of healing – possible impetigo and possible neglect. [ 117 ] SW Bara attached as Exhibit “C” to her May 26, 2022, affidavit photographs taken of M.B.’s head lice. [ 118 ] On February 7, 2022, SW Bara again attended at S.B.’s home. S.B. had failed to confirm her Axis prearranged visit with N.B., and could not be reached by telephone.

S.B. had not arranged for the Director to clean her laundry and sanitize the furniture. [ 119 ] On February 8, 2022, S.B. missed her family planning meeting at MCFD. Neither SW Bara nor FNFSW Vickers were able to reach her by telephone. SW Bara found S.B. at home drinking alcohol with other adults. The laundry was not gathered, the home was not cleaned and the number of empty liquor containers had increased.

SW Bara photographed the containers she observed outside S.B.’s home on February 8, 2022. [ 120 ] At 1:23 p.m. on February 8, 2022, SW Bara and SW Neville informed S.B. that K.B., M.B. and B.B., who were still in respite care with the Director, were being removed. The Director believed S.B. was unable and unwilling to follow through with planning. It had been almost a week since the Children were place in respite care, and it was clear the Director’s concerns would not be resolved within the next week.

SW Bara states in her May 26, 2022, affidavit (at para. 31), the removal was due to a “cluster of concerns indicating chronic neglect of the children.” [ 121 ] The Director was unable to arrange supervised access visits at Axis for two weeks due to the severity of the Children’s head lice. [ 122 ] SW Bara stated in her May 26, 2022, affidavit (at para. 32) that between February 23, 2022, and April 27, 2022, S.B. missed half of her scheduled access visits at Axis.

February 8, 2022 Removal of K.B., M.B., and B.B. [ 123 ] On February 8, 2022, the Director removed K.B., M.B., and B.B. from S.B.’s care and placed them in the foster home of T.N. and

L.C. [ 124 ] On February 10, 2022, the Director filed a Form 1 Presentation Report and Form A Report to the Provincial Court of British Columbia with respect to K.B. and M.B. (File [omitted for publication], CEIS 46, 47) and with respect to B.B. (File [omitted for publication], CEIS 20, 21). The Director claims the Children have been, or are likely to be physically harmed because of S.B.’s neglect. [ 125 ] On February 11, 2022, the matters came before Judge Galbraith in [omitted for publication] Provincial Court. Ms. Surcess and SW Bara appeared on behalf of the Director, and S.B. appeared with Mr. J.

Rempel and FNFSW Vickers. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. The Court ordered the nominal commencement of the presentation hearing, and adjourned it for continuation to February 23, 2022. At this time, Mr. Rempel appeared as a friend of the court because the Legal Services Society had not yet retained him as S.B.’s legal counsel in these proceedings. [ 126 ] On February 23, 2022, the matter came before Judge S. Mengering in [omitted for publication] Provincial Court. Ms. Surcess and SW K. Thaler appeared on behalf of the Director. S.B. appeared with Mr. J.

Rempel, acting as friend of the court. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. The hearing was adjourned to March 9, 2022. [ 127 ] On March 9, 2022, the matter came before Judge S. Mulder in [omitted for publication] Provincial Court. Ms. Surcess and SW M. Tomassetti appeared on behalf of the Director. S.B. appeared with Mr. J. Rempel, acting as friend of the court. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. The court adjourned the hearing to March 23, 2022. [ 128 ] On March 23, 2022, the presentation hearing came before Judge B.A.

Daley in [omitted for publication] Provincial Court. Ms. Surcess and SW M. Tomassetti appeared on behalf of the Director. S.B. did not appear in person or by legal counsel or agent. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. The court adjourned the matter to March 30, 2022. [ 129 ] On March 30, 2022, the matter came before Judge S. Mulder in [omitted for publication] Provincial Court. Ms. Surcess and SW L. Leslie appeared on behalf of the Director. S.B. appeared with Mr. J. Rempel. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent.

The court adjourned the matter to April 13, 2022, to give S.B. an opportunity to retain legal counsel. [ 130 ] On April 13, 2022, the matter again came before Judge S. Mulder in [omitted for publication] Provincial Court. Ms. Surcess and SW J. Bowden appeared on behalf of the Director. S.B. appeared represented with Mr. J. Rempel, now fully retained as her legal counsel. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. The court adjourned the matter to April 27, 2022, to fix a date for a presentation hearing. [ 131 ] On April 27, 2022, the matter came before Judge B.

Craig in [omitted for publication] Provincial court. Ms. Surcess and SW C, Fransen appeared on behalf of the Director. S.B. appeared represented by Mr. J. Rempel as her counsel and agent. G.M. nor D.M.B. appeared in person, or by counsel or agent. The court adjourned the matter to May 25, 2022, to fix a date for a presentation hearing. [ 132 ] SW Bara states in her May 26, 2022, affidavit that on May 5, 2022, she attended at S.B.’s home and confirmed there were other adults living the residence.

SW Bara states (at para. 33), “These people are known to MCFD and RCMP and would not be approved to live in a home with children.” SW Bara goes on to state: 34. To date, I have offered to hold weekly meetings with [S.B.] at the district office and the offer has been refused.

I have offered to do home visits with FNFSW Vickers and that has been refused. [S.B.] continues to live with other adults who present safety concerns for the children and not worked collaboratively with the Director to mitigate child protection concerns. [ 133 ] On May 24, 2022, at a collaborative meeting with SW Bara and FNFSW Cindy Lepetich, S.B. committed to more consistent visits with the children, cleaning her home, and purging it of adults the Director considered undesirable.

Despite her commitment, S.B. failed to attend her Axis visits with the children the next day. [ 134 ] On May 25, 2022, the matter came before Judge S. Mulder in [omitted for publication] Provincial Court. Ms. Surcess appeared on behalf of the Director. S.B. appeared represented by Mr. J. Rempel as her counsel and agent. Neither G.M. nor D.M.B. appeared in person, or by counsel or agent.

The court adjourned the matter to May 27, 2022, for a presentation hearing. [ 135 ] On May 26, 2022, Christina Bara, social worker and delegate for the Director, filed an affidavit on files [omitted for publication], in support of the Director’s application for interim custody of the children pending the commencement of a protection hearing (CEIS 48). [ 136 ] On May 27, 2022, the matter came before Judge P. McDermick in [omitted for publication] Provincial Court. Ms. Surcess appeared on behalf of the Director. S.B. appeared represented by Mr. J. Rempel as her counsel and agent.

G.M. did not appear in person, or by counsel or agent. D.M.B. did appear self-represented. The court adjourned the matter to June 1, 2022, for a presentation hearing. [ 137 ] On June 1, 2022, the matter came before me in [omitted for publication] Provincial Court. Ms. Surcess appeared on behalf of the Director together with SW Christina Bara. S.B. appeared in person and represented by her legal counsel, Mr. J. Rempel .Neither G.M. nor D.M.B. appeared in person, or by counsel or agent. [ 138 ] Ms.

Surcess confirmed that the Director continues to seek an order the children remain in the interim care of the Director pending the conclusion of the protection hearing. [ 139 ] S.B. opposes the Director’s application and argues the Director did not have reasonable grounds for removing the children from her care, alternatively, if the Director did have grounds at the time of removal, circumstances have changed and the Children can now be safely returned to her care under a supervision order. [ 140 ] With respect to the change of circumstances, S.B. states: a. that she has been attending sessions with a drug and alcohol counsellor Adele at the [omitted for publication] Native Friendship

Centre; b. she has improved her consistency in attending access visits in the past month (i.e. May 2022); c. the children are current on their immunizations, as evidenced by Exhibits 1, 2, and 3; d. she has sought and obtained dental treatment for [M.B.] (Exhibit 4); e. her friend, [T.S.], stayed at her residence from April until mid-May 2022, because she was helping [S.B.] move residences.

Also,because she did not have the children with her, [S.B.] needed a friend and [T.S.] needed a place to stay; f. she has a new friend who sometimes stays overnight with her, but will stay elsewhere if the children are returned to her care; g. in 2020-2021 because of her concerns about COVID-19, [S.B.] was home schooling the children; h. in the 2021-2022 school year, the children missed quite a bit of school because either she or the children were ill; and i. she did not take advantage of the Director’s offer to steam clean her home and wash her laundry.

She acknowledges that issomething she ought to have done while the children were in respite care in February 2022. She is now amenable to the Director’s offer. [141] At the presentation hearing, SW Bara identified the following improvements the Director would like to see in place beforereturning the children to their mother’s care: a. [S.B.] attend her access visits with the Children regularly and when she is unable do so, advise SW Bara before hand by telephone ortext of her intended absence.

To facilitate this communication, SW Bara has offered to purchase [S.B.] minutes for her cell phone; b. [S.B.] connect with the Children’s guardianship social worker Cheryl Neville. SW Neville has offered to give [S.B.] reports onmedical appointments the Children have attended. The Director would like to see [S.B.] take a more active role in the Children’s medicaltreatment; c. While the Children are in the Director’s care, SW Bara would have liked to see [S.B.] walk with the girls to school; and d. [S.B.] cooperate with the Director in having her home and laundry cleaned and sanitized, at the Director’s expense.

Legislative Framework Child, Family and Community Service Act (CFCSA) [142] The legislation governing child protection in British Columbia is the Child, Family and Community Service Act (CFCSA). It isframework legislation that provides a complete code for the protection of children in this province: T.L. v British Columbia (AttorneyGeneral), 2021 BCSC 2203 , at para. 20, citing Stadelmann v. Dmytruk, 2010 BCSC 1615 (para. 24). Although CFCSA does notcontain a purpose clause, it does set out important guiding and service delivery principles in ss. 2 and 3, which are reproduced below forease of reference.

Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and inaccordance 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 restsprimarily with the parents; (b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children; (

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

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; (

f) Indigenous children are entitled to (

i) learn about and practise their Indigenous traditions, customs and languages, and (ii) belong to their Indigenous communities; (

g) decisions relating to children should be made and implemented in a timely manner. Service delivery principles 3 The following principles apply to the provision of services under this Act: (

a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them;

(

b) Indigenous people should be involved in the planning and delivery of services to Indigenous families and their children; (

c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of thosereceiving the services; (c.1) the impact of residential schools on Indigenous children, families and communities should be considered in the planning anddelivery of services to Indigenous children and families; (

d) services should be integrated, wherever possible and appropriate, with services provided by government ministries, communityagencies and Community Living British Columbia established under the Community Living Authority Act; (

e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventiveand support services to families and children.

An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019 c. 24. [143] K.B. and M.B. are Indigenous, and accordingly, the provisions of

An Act respecting First Nations, Inuit and Métis children, youthand families, SC 2019 c 24(the “Federal Act”) applies. This federal legislation was specifically proclaimed to address the provision ofservices to Indigenous children and their families involved in the child welfare system. As federal legislation it has paramountcy over theprovincially enacted CFCSA where the CFCSA is inconsistent with the Federal Act. It also applies if it addresses issues not covered inthe CFCSA or if its provisions are more robust than those in the CFCSA. [144] The Federal Act establishes national minimum standards for child and family services delivery for all Indigenous children andfamilies.

Section 8 of the Federal Act sets out its three purposes: (

a) to affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services; (

b) to set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children;and (

c) to contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. [145] The key principles of the Federal Act, set out in s. 9, are the best interests of the child, cultural continuity, and substantiveequality.

Section 4 of the Federal Act provides that “[f]or greater certainty, nothing in this Act affects the application of a provision of aprovincial Act or regulation to the extent that the provision does not conflict with, or is not inconsistent with, the provisions of this Act.” [146] Sections 9(1) to (3) of the Federal Act describe principles of

interpretation that inform the provision of child and family servicesto Indigenous children. [147] Section 9(1) of the Federal Act directs that national standards should be interpreted in accordance with the principle of the bestinterest of the child, and s. 9(2) places import upon cultural continuity, and directs the following interpretive principles be applied: (

a) cultural continuity is essential to the well-being of a child, family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples isintegral to cultural continuity; (

c) a child’s bests interests are often promoted when the child resides with members of his or her family and the culture of the Indigenousgroup, community or people to which he or she belongs is respected; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to theassimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of thatIndigenous group, community or people; and (

e) the characteristics and challenges o

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