K.G. v. K.K., 2003 BCSC 495

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: K.G. and K.K. v. British Columbia (Director of Child, Family and Community Service), 2003 BCSC 495 Date: 20030401 Docket: 33789 Registry: Kamloops PURSUANT TO

SECTION 81 OF THE CHILD, FAMILY and COMMUNITY SERVICE ACT , R.S.B.C., 1996, C.46 IN THE MATTER OF THE CHILD, B.K., born […], 2001 Between: K.G. and K.K. Appellants And The Director of Child, Family and Community Service Respondent Before: The Honourable Mr. Justice Blair Reasons for Judgment Counsel for the Appellants S. M. Soll Counsel for the Respondent T. L.

Weiss Date and Place of Trial/Hearing: February 28, 2003 Kamloops , B.C. [ 1 ] The appellants, K.G. and K.K., appeal the October 4, 2002, decision of His Honour Judge Sundhu of the Provincial Court of B.C. ("the Trial Judge") granting the Director, The Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 , ("the Act ") a continuing custody order over their child B.K. [ 2 ] B.K. was born […], 2001 and was apprehended on December 14, 2001, because of the Director’s concerns about the appellants’ breach of a November 14, 2001 supervision order regarding B.K.’s two older siblings.

The Director’s concerns included the lack of cleanliness in the home, inappropriate physical discipline and a failure to seek medical attention for the oldest sibling. [ 3 ] On January 30, 2002 , B.K. and his two siblings were placed in the temporary care of the Director for a three-month period. On April 24, 2002, the Director applied for a continuing custody order for all three children. In June 2002, the Director withdrew the application with respect to the two older children after they were returned to the care of their natural father in Alberta , but pursued the application with regard to B.K..

The appellants opposed the Director’s application and sought the return of B.K. to their care under a six- month supervision order or, alternatively, that the Director be given a six-month temporary custody order to provide the appellants with the opportunity to work towards obtaining the return of B.K. to their custody. The latter option was referred to by both counsel and the Trial Judge as a "last chance order", a term I also adopt. [ 4 ] Following a three-day hearing the Trial Judge on October 4, 2002 , granted the Director’s application for a continuing custody order for B.K..

The order was made pursuant to s. 49(5) and (6) of the Act which state:

(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. [ 5 ] The appellants submit that the Trial Judge disregarded "material evidence" that the parents were prepared to return to Kamloops from Alberta to work on their problems in order to facilitate the return of B.K. within six months and, further, that the Trial Judge erred in law when he found that there was no significant likelihood that the circumstances leading to B.K.’s removal would improve within a reasonable time when that finding could not be reasonably supported by the evidence. [ 6 ] This appeal is not a trial de novo .

It is not for me to review the evidence before the Trial Judge and substitute my discretion for that of the Trial Judge. I must determine whether the Trial Judge acted on some wrong principle, disregarded significant material evidence, or made a decision that was clearly wrong: see British Columbia ( Director for Child, Family and Community Service) v. J.M. , 2003 BCSC 187 , ¶s 5 - 7, a decision of Madam Justice Sinclair-Prowse. [ 7 ] The appellants’ first ground of appeal is that the Trial Judge disregarded material evidence.

The Trial Judge asked the Director’s counsel during closing submissions what assistance might be provided by the Alberta authorities if he made a supervision order which would see B.K. move to Alberta where the appellants had relocated. In the October 1, 2002 transcript at p. 98, line 29, the Trial Judge indicated that it would be useful to have the information from Alberta , although he noted at line 34 that "he was strongly leaning towards the view that a supervision order would not be in order.".

The Trial Judge followed that with the following statement at line 45: The Court: I would like to have that information. Whether I would do that or not is still something that I have to ponder and consider given this boy's age and the evidence that I have heard. [ 8 ] The Director’s counsel made inquiries and advised that Alberta opposed the placement of B.K. in that province and that there was a strong likelihood that B.K. would be moved several times in foster care under a last chance order.

The appellants’ counsel then submitted that the appellants were prepared to return to Kamloops from Alberta to facilitate a last chance order. [ 9 ] The appellants contend that the Trial Judge did not consider the submission that they were prepared to return to Kamloops and that in doing so, he either “failed to properly weigh or disregarded that evidence”. I do not concur with the appellants’ position that counsel’s submission is the equivalent of evidence. The Trial Judge noted the distinction between a submission and evidence in referring to the material put before him in submissions.

The Trial Judge and appellants’ counsel addressed the issue starting in the October 1, 2002 transcript at p. 98 line 26: The Court: . . . I think I have to restrict my decision to the evidence heard and what they (the appellants) communicated to the court. Once the evidence is in, the evidence is in and I have the responsibility to render my decision in accordance with the law and both of these are sort of post-hearing situations that you're advising me of and I think fairly I have to, in the absence of them being part of the evidence, give very little weight to those things.

Counsel: Well, with respect, if your Honour is prepared to hear from my friend regarding possibly moving the child to Alberta, I think in fairness Your Honour should contemplate my client’s comments as well because one is predicated on the other. The Court: Well, I’ll consider it but, you know, it didn’t take too much for either of them to say “We’re prepared to move back”. They didn’t. I will consider it, but when there’s a history that we have here, I have to basically evaluate the evidence before me.

I didn’t hear either of the parents say that. ( Emphasis added ) [ 10 ] The appellants submit that the Trial Judge disregarded or did not properly weigh the submission regarding their possible return to Kamloops . However, the Trial Judge stated in the portions that I have emphasized in the above extracts that he would consider the appellants’ submission, although he would give it very little weight as it did not form part of the evidence. [ 11 ] The appellants submit that the process surrounding the consideration of their submission that they were prepared to return to B.C. was flawed and cited the B.C.

Court of Appeal decision in J.P.G. v. British Columbia (Superintendent of Family and Child Service ),

[1993] B.C.J. No. 560 . In that case, certain transcripts of interviews of the children involved had been withheld from psychologists who later interviewed the children and the Court of Appeal concluded that a rehearing was required to remedy the evidentiary flaw. I do not find such a flaw to have occurred in the instant case. [ 12 ] I conclude that the Trial Judge correctly approached the weight to be given the appellants’ submission, which was less than what he would have given it had he heard it given under oath.

He did not disregard counsel’s submission; he advised that he would consider the information provided. The fact that he did not act on the submission must be viewed in the context of his original statement that he was not inclined to consider a last chance order given the evidence. [ 13 ] The appellants further submit in the second ground of appeal that the Trial Judge erred in law when he concluded that there was no significant likelihood that the circumstances leading to B.K.’s removal would improve within a reasonable time, the test found at s. 49(5) (

a) of the Act . The Trial Judge also found at ¶92 of his reasons that there was no significant likelihood that the parents will be able to meet B.K.’s needs, the second and an alternative test found at s. 49(5) (b). No appeal is taken from the latter conclusion which, by itself, would be a sufficient basis for the Trial Judge to make a continuing custody order. [ 14 ] However, I consider it preferable that I address the issue raised by the appellants regarding the Trial Judge’s conclusions under s. 49(5) (

a) of the Act . The Trial Judge provided extensive reasons in his 26-page judgment outlining the evidence relating to both parents, particularly their conduct towards not just B.K., but also to other children who had been in their care. The Trial Judge also canvassed the appellants’ efforts or lack of effort towards compliance with the programs suggested previously by the Director to facilitate the return of B.K. to their care.

The Trial Judge also considered the plan of care proposed by the Director should a continuing custody order be made and, further, the best interests of B.K. [ 15 ] I conclude that the Trial Judge reached a conclusion supportable on the evidence that there was no significant likelihood that the circumstances leading to B.K.’s removal would improve within a reasonable time. As I stated earlier, this appeal is not a trial de novo and it is not for me to review the evidence and substitute my discretion for that of the Trial Judge.

I do not find that he erred in principle, disregarded evidence or made a decision that was clearly wrong. I specifically conclude that the Trial Judge applied the governing legal principles and made the appropriate findings on the evidence. [ 16 ] The appeal is dismissed. “R.M.L. Blair, J.” The Honourable Mr. Justice R.M.L. Blair