Director v. C.P. and R.L. Date:, 2015 BCPC 360

Citation: Director v. C.P. and R.L. Date: 20151216 2015 BCPC 0360 File No: 39656 Registry: Penticton 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: T.N.L ., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.P. MOTHER AND: R.L. FATHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.E. SHAW Counsel for the Director: D. Boon

Counsel for the Mother: A. Svetlichny Counsel for the Father : P. Seeger Place of Hearing: Penticton , B.C. Date of Hearing: August 25, 27, 28, September 30 and October 23, 2015 Date of Judgment: December 16, 2015 [ 1 ] The Director seeks an order pursuant to s. 35(2)(

a) of the Child, Family and Community Services Act (“CFCSA” or “ Act ”) that the child T.N.L., born [omitted for publication], now 7 years old, remain in the interim custody of the Director. [ 2 ] This is a hearing and decision at the presentation stage of the CFCSA process. [ 3 ] T.N.L. was removed from the care of her mother, C.L., now C.P., on May 19, 2015. T.N.L.’s father is R.L.. T.N.L. was in the care of both her parents at the time of removal, with T.N.L. being cared for by each parent for four days alternating with the other parent.

Following the removal by the Director on May 19, 2015, the Director placed T.N.L. with her father, R.L.. She is currently residing with him and C.P. has access which is supervised. [ 4 ] C.P. opposes the Director’s application and argues the Director did not have reasonable grounds for removing T.N.L. from her care. As T.N.L. has been placed with R.L., he does not oppose the Director’s actions. [ 5 ] The relationship between the two separated parents has been one of animosity and ongoing conflict, particularly regarding the parenting and care of T.N.L..

History of Provincial Family Court Litigation [ 6 ] The parents have a significant court history: the within proceeding involving the Director; Supreme Court File 103466 Kelowna Registry; and File 33794 Penticton Registry in the Provincial Court. [ 7 ] The history of the proceedings in the Provincial Court file 33794, which are proceedings first under the former Family Relations Act and then under the Family Law Act , are relevant in these proceedings. [ 8 ] On July 5, 2013, following a 2 day trial, an order was granted that set out, as the parents of T.N.L. did not live in the same community, T.N.L. would live primarily with her father R.L..

C.P., T.N.L.’s mother, then relocated to the same community as R.L., and on July 22, 2013, a further order was granted with a parenting time

schedule for T.N.L. to be with each of her parents on a four day alternating rotation. [ 9 ] Unfortunately, despite the specified parenting time order, the conflict between the parents continued. [ 10 ] It is noted that the Provincial Court FLA file was reactivated in July of 2014 with R.L. bringing an application. There was a court appearance on July 25, 2014, adjourned over to August 15, 2014, and on that date it was adjourned generally. No orders resulted. [ 11 ] There do not appear to be any steps taken on the FLA Family file until after the removal of T.N.L. by the Director, on May 19, 2015.

The father, R.L., filed an application on August 25, 2015 for an order varying the Order of July 5, 2013 for sole guardianship, sole parenting responsibilities, reasonable and generous parenting time to the mother, and principal residence of T.N.L. to be with him. C.P. filed a reply on September 28, 2015 opposing any change to the Order of July 5, 2013. There has been no hearing set for this application and there have been no appearances, and no orders.

History of Involvement of the Family with the Director [ 12 ] The initial contact the family had with the Director was in April of 2012 when the father, R.L., telephoned the after-hours social worker. R.L. was concerned about the possible negative implications of statements of the mother, C.P., about his care of T.N.L.. The mother, C.P., had called him to say T.N.L. had been returned to her from his care and she observed T.N.L. had no skin on her groin area. C.P. did not allow T.N.L. to return to her father’s care on the normal rotation.

She told R.L. she was keeping T.N.L. for 7 days so that the groin area would heal. [ 13 ] The after-hours worker spoke with C.P., and she told the worker she had concerns that T.N.L. was returning from the four days in the care of R.L. with a red and irritated vulvar region. [ 14 ] C.P. complained to the social worker that R.L. was not following the doctor’s instructions for care of T.N.L.’s condition which was described initially by doctors as irritated vulvar symptoms.

In the fall of 2013, white patches were observed around the perineal area by mom, and further doctor’s appointments and evaluations occurred. [ 15 ] In April of 2014, C.P. withheld T.N.L. from R.L. for his scheduled court ordered four day parenting time rotation on the basis T.N.L. had another “flare up of white patches of skin atrophy”. R.L. reported the actions of C.P. to the police and telephoned the Ministry.

An investigation was commenced. [ 16 ] The Director’s response to the situation at that time was to have the Social Worker refer C.P., R.L. and T.N.L. to have some counselling with a family worker, Kate Withers. [ 17 ] T.N.L. was seen by Dr. Giesbrecht, paediatrician, on May 7, 2014 with both her parents attending. Dr. Giesbrecht stated in her

letter: “… There is a long discussion about whether it is red more whether she is with mom or dad but in the end she has had multipleevaluations for this red irritated skin.” [18] The services and the assistance put in place by the Director did not reduce the conflict and animosity between the parents overthe parenting of T.N.L.. [19] On May 15, 2015 the Director removed T.N.L. from the care of her parents, and placed T.N.L. with her father. The Form Awas filed on May 22, 2015.

LAW AND AUTHORITIES [20] Section 30 (1) of the Child, Family and Community Service Act (CFCSA) provides that a director may remove a child, if thedirector has reasonable grounds to believe that the child needs protection, specifically that: (

a) the child’s health or safety is in immediate danger; or (

b) no other less disruptive measure that is available is adequate to protect the child. [21]

Section 13 of the CFCSA provides circumstances in which a child needs protection. These, in general, include circumstances inwhich there has been or is likely to be physical harm, sexual abuse or exploitation, neglect, emotional harm, deprivation of necessaryhealth care, deprivation of treatment for a treatable condition, or inadequate care.

Section 13 does not create an exclusive list ofcircumstances in which protection is needed. (S.(B.) v British Columbia (Director of Child, Family and Community Service) (1998), (BC CA), 38 R.F.L. (4th) 138 (B.C.C.A.)) [22]

Section 2 of the CFCSA confirms the entitlement of a child to be protected from abuse, neglect, harm, or threat of harm. Thissection also recognizes the preferred environment for the care and protection of children rests primarily with the parents. PRESENTATION HEARING [23] Once a child is removed under s. 30 of the Act, within seven days after removal, the director must attend at court for apresentation hearing.

At the hearing, the director must present a written report, information regarding less disruptive measuresconsidered before removing the child, and an interim care plan. [24] The written report presented at the hearing must contain the circumstances that caused the director to remove the child. Thisreport must be in Form A (CFCSA). The report is presented in open court. [25] A presentation hearing is

summary in nature and must be concluded as soon as possible. (s. 33.3 of the CFCSA) [26] It warrants comment at this time, that given the intense intractable conflict between the parents, now involving the Director,although it should be

summary in nature, this presentation hearing morphed into a multi-day trial with witnesses. The delay and datesfor the continuation of this matter were problematic given the nature of the evidence being elicited, the schedules of the parties andcounsel, as well as the witnesses and court

schedule availability. In hindsight, this hearing should never have been allowed to proceedfor the length of trial time and the delay that has occurred. [27] At the presentation stage, the issue is not whether the child needs to have protection. From the recent decision of Mr. JusticePunnett in R. (B.) v. K. (K.), 2015 BCSC 1658 (BCSC), at a presentation hearing the court ought not make a finding that the child is needof protection.

In that case, the court states: 16 It is clear that at a presentation hearing, the Director need not show, and the Court need not conclude, that the child is actually in needof protection in order for a supervision order to issue under s. 29.1. Rather, the burden on the Director merely requires that there beadmissible evidence which, if accepted, could lead to a finding that the child is in need of protection: British Columbia (Director ofChild, Family and Community Service) v. C. (J.), 2014 BCSC 496 (B.C. S.C.) at para. 21. [28] At the stage of the presentation hearing, which is or should be a

summary proceeding, the courts must give deference to theevidence of the Director given the time frames of when the Director must prepare the reports. In R. (B.) v. K. (K.), Mr. Justice Punnet, inparagraph 17 refers to the case of Grannary, J. as follows: 17 The Director also refers to British Columbia (Director of Family & Child Services) v. K. (W.H.), 2003 BCPC 307 , 2003BC.P.C 307 (B.C. Prov.

Ct.) , where Grannary J. said the following about the treatment of the evidence of social workers at apresentation hearing: [16] Under these circumstances, I am not required, nor is it appropriate that I go behind the statements of fact contained in the Report toCourt of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who completethese reports. The social workers have a statutory duty to be truthful, to be honest, to be complete and to do their very best. It would beinappropriate on a case-by- case basis to go behind their motives.

I must assume the information that I have is at least believed by thesocial worker. Whether or not it ultimately turns out to be true is another matter, but I must at least start from the premise that shebelieves it and has some basis for believing it. … The legislation and the case law does not require, nor allow me, to go behind what sheis saying. There is a dispute of facts, which is not unusual in cases of this type. At this stage of the

summary proceedings, a quickresolution without hearing all witnesses and spending days to determine what is actually the case is necessary. I must assume, wherethere is a dispute of facts, that the Director is accurate. [29] Further at paragraph 17 of Re (S.) B. (supra), the court summarized the process to follow in a presentation hearing as follows:

17 … If there is a dispute about the facts that form the basis of the apprehension, it is resolved in the Director's favour. Whether or notthe allegations form a proper basis for the Director's actions must be determined on the balance of probabilities; however, a lowerstandard must apply when there is a risk of injury to the child: British Columbia (Superintendent of Family & Child Services) v. M. (B.)(1982), (BC SC), 37 B.C.L.R. 32 (B.C. S.C.). [30] The Director has the onus of establishing a prima facie case. [Re J.(A.), [1997] Civ. L.D. (B.C. Prov.

Ct.)] [31] In establishing a prima facia case, the presentation hearing has been compared to a preliminary inquiry process. In R.G. v. A.P.,[2001] B.C.J. No. 466 (B.C. Prov. Ct.) at para. 4, Auxier, J. states: 4. Judge Tweedale in T. (K.M.) v T. (J.D.) (1999), Fam. L.D. 80 compared a presentation hearing to a preliminary inquiry. In the latter,the court doesn't decide guilt or innocence but merely commits an accused for trial if there is admissible evidence that could, if believed,result in a conviction.

In the presentation hearing, the court doesn't determine whether or not the child is in need of protection, butdetermines only whether there is admissible evidence which, if believed, could lead to a finding that the child is in need of protection. Ifso, the matter is set for a protection hearing. [32] The court’s function is generally not to make findings of credibility at the presentation stage.

Conflicting facts are left to fulldetermination at the protection hearing stage, unless the facts the Director seeks to establish are manifestly wrong or untrue or unlikely tohave occurred. (B.B. v Director, 2005 BCCA 46 (BCCA) para. 14) CFCSA REPORT TO THE PROVINCIAL COURT FORM A [33] To determine whether the Director has established a prima facia case, the Form A and evidence led to amplify the informationset out by the social worker in the Form A must be reviewed and considered. [34] As well, the evidence, led by the mother C.P. and her witnesses and the father R.L., must be considered to determine whetherC.P. has established that the facts presented by the Director are manifestly wrong or untrue or unlikely to have occurred as C.P. arguesthat the facts upon which the Director relies are untrue. [35] The Form A which was filed May 22, 2015, was prepared by social worker Lisa McKenzie.

The Form A states that theDirector is highly concerned about T.N.L.’s safety and emotional health while in the care of C.P.. It is the Director’s belief that T.N.L.has been subjected to excessive and unnecessary invasive medical exams, particularly focused on T.N.L.’s genitals, such exams initiatedby C.P..

The Director states the intrusive behaviour negatively impacts T.N.L. and this behaviour by the mother has escalated theongoing conflict between the parents, which conflict further negatively impacts the child. [36] Social worker McKenzie has set out ten paragraphs of concerns of the Director in regards to C.P.. I will deal with each separateconcern, but the entirety of the concerns must be considered to determine if the Director has established a prima facia case. [37] The first concern is that T.N.L. has been subjected to numerous genital exams by numerous doctors.

The Form A informationalleges there were 12 appointments with Dr. DeWitt (family physician) between April 2012 and November 2014; 7 appointments withDr. Lannon, a paediatrician, between June 2014 and December 2014; an appointment with Dr. Parameshwar, paediatrician, in April2014; and a further appointment with Dr. Giesbrecht, Gynaecological Paediatrician at BC Children’s Hospital in April 2014. In addition,social worker McKenzie alleges C.P. took T.N.L. to numerous visits with a nurse practitioner and clinic visits with Dr. Eva, (generalpractitioner) in Princeton, B.C. [38] Dr.

DeWitt gave evidence and her clinical records were produced. From the evidence of the documents and witnesses, itappears T.N.L. attended with Dr. DeWitt for 9 appointments, 4 of which included examinations of T.N.L.’s genital area, and theevidence is not clear on one further possible genital exam during one of the other appointments. Dr. DeWitt’s records also show thatT.N.L. had three visits to the hospital emergency room, one of which involved examination of T.N.L.’s rash in her genital area. [39] The visits to Dr. Lannon, Dr. Parameshwar and Dr. Giesbrecht all occurred.

Visits to the Princeton clinic to see the nursepractitioner and Dr. Eva initiated by the mother did occur. There appear to be some discrepancies in the alleged number of visits withDr. DeWitt, and there may be some discrepancies in the dates alleged for some of the visits. [40] I find that even if the some dates were wrong and the number of visits with Dr.

DeWitt may have been wrong, this alone doesnot support a finding that the facts presented by the social worker were manifestly wrong to the point the concern is to be disregarded inits entirety. [41] The second concern from social worker McKenzie is that T.N.L. has a diagnosis of paediatric lichen sclerosis. From theevidence at the hearing, the diagnosis of paediatric lichen sclerosis has been made. On June 10, 2015 T.N.L. was taken by her father andsocial worker, Lisa McKenzie, to Kamloops to be assessed at the Interior Health Suspected Child Abuse and Neglect Clinic, located atthe Royal Inland Hospital.

In the Past Medical History

section of the report of Dr Sproule, the assessing specialist at the clinic, it isnoted that T.N.L., in addition to the doctors and visits as set out in concern number one, has also seen an occupational therapist forpossible hypermobility, a speech pathologist for minor language difficulties, and chiropractic treatments for reasons that were notentirely clear to Dr. Sproule. [42] As a result of her assessment, Dr. Sproule recommended a psychological assessment of T.N.L. be carried out by the clinicpsychologist, Dr. Swanson. At the time of the Presentation Hearing, this assessment had not been done. In the Impression

section of thereport of Dr. Sproule, she comments that her impression, having spoken with C.P. on the phone, is that C.P. is exceedingly anxiousregarding T.N.L.’s vulvar regions and the doctor wrote that it is clear that C.P. is examining her daughter’s anal and vulvar regions veryclosely. Dr. Sproule did not give evidence at the presentation hearing although her report was admitted. [43] The third concern of social worker McKenzie is that in a conversation with Dr. DeWitt on April 16, 2014, the social workerreported that Dr. DeWitt stated she was not aware of the number of doctors involved in T.N.L.’s care and that the doctor agreed that C.P.

may be over zealous. I assume this refers to C.P. being over zealous about T.N.L.’s condition and care. Social worker McKenzie further stated in the Form A that it was Dr. DeWitt’s perspective that T.N.L.’s medical condition did not warrant the number of medical visits that have occurred. [ 44 ] Dr. DeWitt gave evidence at the Presentation Hearing. The first time Dr. DeWitt saw T.N.L. as a patient was in April of 2012. She does not recall using the words “over zealous” in the conversation on April 16, 2014 with the social worker. Dr.

DeWitt did not agree that in the conversation she reported that T.N.L.’s medical condition did not warrant the number of medical visits T.N.L. has had. [ 45 ] From Dr. DeWitt’s evidence, it is clear there is discrepancy between the social worker’s statements of fact in the Form A concern 3, and the evidence of Dr.

DeWitt, but discrepancies in evidence ought to be determined at the protection hearing level. [ 46 ] I find that although there are discrepancies, for the purposes of a presentation hearing, the third concern as articulated by social worker McKenzie in the Form A cannot be disregarded in its entirety. [ 47 ] Concern number four and five set out that there is a concern that while T.N.L. is in C.P.’s care, she missed a considerable amount of school as opposed to when T.N.L. is in her father’s care. School attendance records presented show significant absences and some late attendances.

The social worker sets out that while in C.P.’s care, T.N.L. missed a total of 24 ½ days of school between September 2014 and the removal on May 19, 2015.

Evidence was elicited to explain the reasons for the absences. [ 48 ] On considering the evidence, I find, for the purposes of a presentation hearing, it has not been established by C.P. that the facts presented by the Director in regard to the absences from school are manifestly untrue. [ 49 ] Concern number six relates to a concern that while T.N.L. was in her care, C.P. took a photo of T.N.L.’s genital area and showed the photo to Kate Withers, a family support worker. Ms. Withers did not give evidence at the hearing.

Again, at the presentation hearing stage, the court ought not to go behind the evidence of the social worker. The role of the court on a presentation hearing is not to determine credibility, as I do not have all of the evidence before me.

Deference is to be given to the social worker’s evidence at this stage, even if at the protection hearing stage, the underlying facts relied upon by the Director may be proven wrong. [ 50 ] On reviewing the evidence, at the presentation hearing stage, I do not find that C.P. has shown that the facts alleged by the social worker are manifestly wrong or untrue even though there are discrepancies and evidence that may well be challenged. [ 51 ] Concern seven also involves evidence and information from family worker Kate Withers.

Social worker McKenzie alleges a concern that at an April 21, 2015 medical appointment with Dr. DeWitt, family worker Withers put in a statement that she heard C.P. make a statement that C.P. was aware that T.N.L. had a fissure in her vaginal area ‘as she had no problem getting inside’. C.P. gave evidence as did Dr. DeWitt. Dr. DeWitt explained she was not in a position to hear everything said between Ms. Withers and C.P. and does not recall hearing that statement. Ms. Withers put her concerns into a statement to the RCMP as well as to social worker McKenzie. It is noted that Ms.

Withers was not a witness at the presentation hearing. [ 52 ] I find that concern seven of the social worker has not, at this stage, been shown to be manifestly incorrect or untrue.

Credibility is to be determined at the Protection Hearing. [ 53 ] Concern eight is that the conflict between C.P. and R.L. continues to escalate and a major conflict between the parents is over T.N.L.’s medical care, particularly with C.P.’s firm belief that R.L. is not following through with T.N.L.’s medical care needs. [ 54 ] C.P. gave evidence at the hearing and throughout her testimony she confirmed that she has had and continues to have significant anxiety and concern about T.N.L.’s medical care by R.L.. Neither C.P. nor R.L. denied that there is significant conflict and animosity over T.N.L.’s medical care.

C.P. alleged T.N.L. is not ‘safe’ in R.L.’s care and she fears for her daughter. [ 55 ] Concern nine relates to C.P.’s conduct in relation to her daughter T.N.L. at a public performance, and as well with C.P.’s behaviours when dealing with the RCMP in relation to C.P. having complaints about R.L.. The allegation is that C.P. was being inappropriate and hostile. [ 56 ] I do not find that C.P. has established that the facts in concern nine alleged by the social worker, at this stage, are manifestly incorrect or that the facts did not exist.

Again, the full evidence with a determination of credibility is appropriate at the protection hearing stage. [ 57 ] Concern 10 involves the behaviour of C.P. withholding T.N.L. from parenting time with her father on the basis of medical concerns. This was not disputed by C.P.. [ 58 ] On reviewing all of the evidence with respect to considering whether the facts as alleged by social worker McKenzie were manifestly untrue or unlikely to have occurred, I find that C.P. has failed to establish that the alleged facts are manifestly untrue. However, there are discrepancies and conflicting evidence.

It may well be that at a protection hearing many of the factual allegations may be found to be untrue, but this determination must be done at the protection hearing. DISCUSSION AND DECISION [ 59 ] The presentation hearing follows a two-step procedure as prescribed by the CFCSA .

The first stage deals with whether the removal was justified under the CFCSA . [ 60 ] The second stage, if the removal was justified, is that the court must determine the best way to care for the child pending a Protection hearing. [ 61 ] The options the court has for orders at the conclusion of the hearing are set out in s. 35(2) of the CFCSA :

Presentation hearing and orders 35

(2) At the conclusion of the hearing, the court must make (

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

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

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

d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director's supervision. Was the removal justified under the CFCSA? [ 62 ] To determine whether the removal was justified under the CFCSA, the questions the court must consider are: 1. Were there reasonable grounds to believe the child needed protection? 2. Was there immediate danger to the child’s health or safety? 3. Were there less disruptive measures available? Re M. (S.), [1998] B.C.J. No. 2204 (QL) (Prov.

Crt.) [ 63 ] The Director alleges C.P. is causing emotional harm to T.N.L. by her excessive and, at times, inappropriate attention to T.N.L.’s medical condition. I would describe the argument of the Director as alleging C.P. is obsessed and consumed with the care and progress of T.N.L.’s medical conditions, most particularly T.N.L.’s condition of lichen sclerosis. [ 64 ] R.L. agreed the issue before the court is whether there is emotional harm to T.N.L., but goes further and argues C.P. is using the medical condition of T.N.L. to control the parenting time of R.L. with T.N.L..

I find the latter argument is a more appropriate concern between the parents in the FLA proceedings. [ 65 ] C.P. agrees the issue before the court is whether C.P. is causing emotional harm to T.N.L.. C.P. denies causing any emotional harm to T.N.L., and argues the Director has not met the test required at a presentation hearing to establish emotional harm as it is defined under the Act .

C.P. submits all of the concerns of the Director are more properly dealt within the Provincial Court FLA file. [ 66 ] C.P. argues that in determining whether the Director has met the test for emotional harm under s. 13(1) and (2) of the Act , the Director must have evidence of actual harm and not a mere risk of emotional harm. [ 67 ] The relevant parts of s. 13(1) and (2) read as follows: 13(1) A child needs protection in the following circumstances: ... ... (

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

e) if the child is emotionally harmed by the parent's conduct;"

(2) For the purpose of subsection (1)(e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. [ 68 ] In C.(E.J.) v. Director of Child, Family and Community Service, 2005 BCSC 932 , (BCSC) , Halfyard, J found that in the absence of the words ‘is likely to be’ means a finding of protection cannot be based on anticipatory emotional harm. There must be actual harm proven. In C.(E.J.) , Halfyard, J stated at para. 54: 54 In my opinion, that provision requires proof that the child in question is presently in need of protection, by reason of having been, and continuing to be, emotionally harmed.

The wording is entirely different than s. 13(1)(d), which clearly contemplates the risk of harm in the future. [ 69 ] The Director argued that in s.13(1)(e), with respect to the issue of emotional harm, the wording is such that it makes it clear the subparagraphs are not exclusive, and the subsection list are merely examples. [ 70 ] That argument is dealt with by Halfyard in C.(E.J.) . At paras. 56 and 57 of the decision, the court states: 56 Counsel for the Director contended that the trial judge had not erred in law, in finding that J.A.C. was in need of protection from "anticipatory emotional harm". Ms.

Stushnoff relied on S.(

B) v. B.C. (Director of Child, Family and Community Services (1998) 48

B.C.L.R. (3d) 106 (B.C.C.A.). In that case, the majority concluded that s. 13(1) of the Act did not "create an exclusive list ofcircumstances where protection is needed." See the discussion by Mr. Justice Lambert at paras. 1 to 4 and 19 to 24. 57 I am of course bound by the majority judgment in the S.(

B) case. But I am not persuaded that the court's reasoning would apply so asto broaden the scope of the circumstance in s. 13(1)(

e) which clearly contemplates present emotional harm, and which specificallydefines the nature and extent of emotional harm that is required, in s. 13(2). [71] The Director further argues that the principles set out in s. 2 of the CFCSA are paramount in considering the

interpretation andadministration of the Act. [72] The question is then, is the test at a presentation hearing the same test as at a protection hearing, that the Director has to haveproof of actual emotional harm in the form of the categories set out in s. 13(2) at a level which is severe in nature. [73] The Director alleges T.N.L. is emotionally harmed by C.P.’s conduct. The conduct which the Director alleges is harmful toT.N.L. includes C.P.: (

a) being obsessed with pervasive beliefs that T.N.L.’s medical conditions, particularly the lichen sclerosis, requires intense medicaltreatment which only she can organize, monitor and manage; (

b) subjecting T.N.L. to frequent, unnecessary and invasive medical exams particularly focused on T.N.L.’s genital area; (

c) being hostile to the other parent, R.L. with concerns of the effect of the overall toxic environment created by the high parentalconflict on T.N.L.; (

d) having a pattern of consistent criticism of R.L. as a parent particularly in the area of T.N.L.’s medical care; (

e) excessively and unnecessarily withholding T.N.L. from school on the basis of T.N.L.’s medical condition; and (

f) unilaterally and unnecessarily withholding of parenting time of T.N.L. from the other parent, R.L., on the basis of allegedconcerns of T.N.L.’s medical condition. [74] C.P. submits that T.N.L. shows no sign of any emotional harm. She submits T.N.L. is described as a somewhat shy, but happychild who has no issues at school. C.P. argues T.N.L. does not demonstrate any signs, severe or otherwise, of the required anxiety,depression, withdrawal, self- destructive behaviour or aggressive behaviour that is set out in that section. [75] The Director argues T.N.L. did have signs of emotional trauma.

The Director argues that T.N.L. was, prior to the removal, quietand withdrawn in her social interactions; that T.N.L. had a weight concern when being parented by C.P.; and that there is a concern thatthe ‘out breaks’ of T.N.L.’s condition may well be related to T.N.L.’s emotional stress when dealing with high conflict parents. [76] The Director submitted there is evidence that since the removal and now that T.N.L. is primarily with R.L., T.N.L.’s ‘outbreaks’ in relation to her condition of lichen sclerosis, have decreased or appear to be under control; that the weight concern hasimproved since T.N.L. has been placed with R.L.; that her school attendance has improved; and that T.N.L. is engaging better sociallyand she appears to be settled. [77] The most concerning evidence with respect to T.N.L.’s alleged emotional trauma is in the report of Dr.

Sproule from the InteriorHealth Suspected Child Abuse and Neglect Clinic, where, as a result of her assessment of T.N.L., Dr. Sproule recommended apsychological assessment of T.N.L. be carried out by the clinic psychologist, Dr. Swanson. In conjunction with that recommendation,Dr. Sproule confirmed in her report, having spoken with C.P. on the phone, C.P. is exceedingly anxious regarding T.N.L.’s vulvarregions and the doctor wrote that it is clear that C.P. is examining her daughter’s anal and vulvar regions very closely.

As previouslynoted, Dr Sproule did not give evidence at the presentation hearing. [78] In answer to the question whether at a presentation hearing, to meet the test of establishing a prima facia case, in relation toemotional trauma, is the same as the test at the protection hearing stage, I find the Director must have some evidence upon which thecourt can determine whether, on a balance of probabilities, the child has and continues to have emotional trauma as defined in s. 13(1)(e)and 13(2) of the Act. [79] Here, there is evidence of C.P.’s actions involving T.N.L. which form concerns for the Director that these actions andbehaviours are causing T.N.L. emotional harm.

There is some evidence T.N.L. may be suffering emotional trauma: T.N.L.’s commentsto Dr Sproule regarding her numerous genital exams by the doctors; the noted changes in T.N.L.’s social behaviours since being in thecare of R.L.; the statement of T.N.L. that even with a simple aesthetic procedure such as an ear piercing, she expects it must have toinvolve doctors; the observations that T.N.L.’s lichen sclerosis may be affected negatively by the conflict between the parents, andperhaps from C.P.’s over attention; and most important is the recommendation of Dr.

Sproule for a psychological assessment. [80] In answer to the three questions to determine whether the removal was justified under the CFCSA, given the evidence presentedso far, there is evidence to found a concern that T.N.L. may be at risk for emotional harm from the actions and behaviours of the mother,and I would also say, to some extent from the actions and behaviours of the father in his dealings with the mother. There is someevidence from the child. But it is the evidence that is missing that is the concern.

I find at a presentation hearing, the evidence availableis not perfect and is not what would be available at a protection hearing. [81] The paramount concern of the presentation hearing is the protection of the child. However, the presentation hearing is designedto ensure that children are not “removed” arbitrarily and that the removal was necessary based on s. 30 of the Act. [Re S.(R.A.), [1996]B.C.J. No. 227(QL)(Prov. Ct.) affirmed [1996] B.C.J. No. 2387 9QL) (S.C.), leave to appeal refused (1996) (BCCA), 31 B.C.L.R.(3d) 383 (C.A.).

[ 82 ] Although I find that there is little evidence presented that, if accepted, would lead to a finding that the child has been emotionally harmed by C.P. as defined by s. 13(1)(

e) and 13(2), as there has been no evidence that T.N.L. has demonstrated easily recognizable symptoms of severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour, there remains a concern based on the evidence that has been elicited, specifically from the recommendations of Dr. Sproule, that T.N.L. ought to be psychologically assessed. [ 83 ] Despite the presentation hearing being delayed over several hearing dates with gaps of time in between, by the last hearing date, the Director had not yet obtained the psychological assessment by Dr. Swanson.

The Director submitted the timing of the assessment by Dr. Swanson was not in the control of the Director. [ 84 ] I find the evidence suggests that severe anxiety or withdrawal cannot yet be ruled out, and I must apply the guiding principles in s. 2 of the Act , that children are entitled to be protected from abuse, neglect, and harm or the threat of harm.

I cannot rule out, at this stage of the proceedings, that T.N.L. may be suffering from severe anxiety. [ 85 ] I find that T.N.L. ought to be given the opportunity of being psychologically assessed, and the court ought to be given the benefit of the psychological assessment before determining whether, at a protection hearing, T.N.L. is in need of protection. [ 86 ] With respect to the question of whether the Director could have taken any less intrusive measures, given the evidence, I find that there were no less intrusive measures that would have been sufficient to meet the concerns of the Director of the mother’s conduct and the conflictual parenting by both parents in relation to the safety of T.N.L.. [ 87 ] The parents are entitled to have this litigation process proceed and be determined and resolved as quickly as is reasonably possible, but T.N.L. must be given protection until the assessment, which I understand is being proceeded with, is obtained.

However, the process as directed by the Act is to proceed pursuant to the time limits required by the Act . [ 88 ] I find, at the presentation stage, that the removal was justified in that I find there is evidence of the conduct of C.P. and the reactions of T.N.L. which support the removal of T.N.L. by the Director on the basis there was an immediate and ongoing concern to the child’s health and safety, and given the previous actions of C.P. in withholding parenting time from R.L. and her insistence on continuing with controlling the care of T.N.L. to the degree that it is possibly emotionally affecting T.N.L., I find, for the purposes of the presentation hearing, there were no less disruptive measures that would ensure the interim safety of T.N.L. from the actions of C.P..

Care of T.N.L. Pending a Protection Hearing [ 89 ] The second stage of a presentation hearing is that if the removal was justified, the court must determine the best way to care for the child pending a Protection hearing. [ 90 ] I considered returning the child to her father as the Director has placed the child with the father.

However, given the conflicting evidence as to whether the mother would respect a direction from the Director in regards to the child being in the care of the father pending any FLA hearing and decision, and whether the father and mother would then descend into a more contentious confrontation over the child, I decline to return the child to the father under s. 35(2)(b). [ 91 ] However, it is clear that the dispute between the parents regarding T.N.L. must be resolved in the FLA proceeding expeditiously. [ 92 ] I therefore make the following orders: 1.

There will be an interim order that the child be in the custody of the Director. 2. That the protection hearing commence no later than 45 days from the date of this order. The parties shall attend with the JCM on December 18, 2015 at 9:30 a.m. to obtain a hearing date. 3. That the Provincial Court file with the FLA proceedings between the parents with the application of the father and the reply of the mother, File 33794, be heard at the same time as the within proceeding. 3.

That I am seized with this file for the Protection hearing and the Provincial Court File 33794 proceedings under the FLA under further direction from the court. THE HONOURABLE JUDGE M.E. SHAW