DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2012 BCPC 114

Citation: Director v. N.M., W.M. and J.M., T.T. Date: 20120314 2012 BCPC 0114 File Nos: 92727/F93207 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: W.D.M. , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: N.M. W.M. AND: J.M. T.T. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BURDETT

Counsel for the Director: D. Boon Counsel for the Parents: W. Munson Appearing for own behalf : W.M., N.M. Place of Hearing: Kelowna , B.C. Date of Hearing: March 14, 2012 Date of Judgment: March 14, 2012 [ 1 ] THE COURT: This has been a presentation hearing with respect to W.D.M. W. was born on [DOB]. He was apprehended or removed from his parents on October 26, 2011.

The Director's evidence I have heard today on this presentation hearing is contained in the Report to Court, an affidavit sworn by Constable Sarah McCarthy of the RCMP, and an affidavit sworn by Jennifer Mitchell, the social worker. [ 2 ] Constable McCarthy outlines the investigation into the sexual abuse allegations against F.M., J.M.'s daughter, who was eight when she first disclosed sexual abuse by her father. [ 3 ] Attached as exhibits to Ms.

Mitchell's affidavit are the following documents: the Report to Court regarding W.; a presentation form with respect to J.D., W.'s older stepsister; an order concerning the custody of J.; a restraining order prohibiting Mr. M. from having any contact with J.; and the report authored by the Kelowna RCMP in which their investigation into Mr. M. for the offences of sexual interference, invitation to sexual touching, sexual assault, and assault regarding J. are outlined. [ 4 ] J.M. and J.T. have both filed affidavits as have J.M.'s parents, N. and W.M.

B.T., J.T.'s mother, has provided an affidavit as has R.B., who shares accommodation with J.T. and J.M. [ 5 ] The Ministry removed W. pursuant to s. 30 of the Children, Family and Community Service Act , and specifically under s. 13(1)(

b) that he is likely to be sexually abused or exploited by his parent and s. 13(1)(

c) that he is likely to be sexually abused or sexually exploited by another person and that child's parent is unwilling or unable to protect him. [ 6 ] Essentially, the Director's case relies on allegations that Mr. M. sexually abused his daughter, F., and Ms. T.'s daughter, J. To substantiate the removal of W., they point to Mr. M. accessing an Internet site which the police characterize as being primarily concerned with child sexual exploitation and his alleged online comments. [ 7 ] It is necessary to assess the evidence that the Director has adduced concerning F. and J. F. is the daughter of J.M. and W.M.

The RCMP and the Director investigated a sexual abuse allegation against Mr. M. concerning F. in 2003. At that time, F. disclosed that J.M. had forced her to perform sexual acts on him. No charges were laid in 2003. [ 8 ] In 2007, the RCMP interviewed F. again. She was 12 at this time. She disclosed that in 2003, J.M. had sexually abused her by touching her vagina, breast, and buttocks with his fingers. He asked her to suck his penis after he ejaculated. These things occurred on a regular basis according to F. [ 9 ] She was re-interviewed again in 2010 when she was 15 and provided further disclosure.

This disclosure was consistent with what she told the police in 2003 and 2007. She indicated that Mr. M. had anally penetrated her and would masturbate in front of her. He told her not to tell anyone about what happened. Although charges were sworn with respect to F., they were stayed early on in the criminal proceedings. [ 10 ] J.M. denies these allegations completely. He states in his affidavit that his daughter, F., may have been abused by another individual and that his ex-wife, W.M., influenced F. to the extent that she has concocted these allegations. [ 11 ] Mrs.

M., J.'s mother, in her affidavit inexplicably points to the fact that F. was in a romantic relationship at the time of her latest police interview. What this has to do with whether or not J.M. sexually abused F. when she was a child is unknown. Mrs. M. points to the acrimonious relationship J. had with his first wife as being a reason for these allegations involving F. [ 12 ] In May 2010, the police also investigated J.M. after receiving a complaint about his behaviour on an Internet site. Allegedly, he tried to set up a sexual foursome online indicating that he was bisexual.

During this online conversation, he began to discuss having to leave to babysit a five-year-old Japanese girl. [ 13 ] He stated that he showered with the five-year-old girl and he got an erection and the girl asked him about it. He indicated online that a friend of the girl's mother would have oral sex with him in the shower while the five-year-old was just outside the shower. The person online having this conversation with J.M. was so concerned that she contacted the police. Mr. M. provided a picture of himself to this person.

The police have the photograph and two officers indicate that the photograph depicts Mr. M. [ 14 ] The police located the IPN address for the computer Mr. M. was using during this chat. The IPN address was identified as coming from J.M.'s parents' home, where he was living at the time and the police subsequently seized computer equipment from Mr. M. [ 15 ] Mrs. N.M. attests in her affidavit that she had a wireless connection in her home and she suggests that an outsider hacked into her wireless connection to access this child exploitation website. There is no explanation as to how Mr.

M.'s photograph could have been involved, though.

[ 16 ] During the time of this online chat, J.M. was involved in a relationship with J.T. and her five-year-old daughter, J. J. was removed from the custody of J.T. and J.M. in May 2010 after these Internet allegations and after allegations of sexual abuse arose. [ 17 ] J. subsequently disclosed to her foster mother and later to a police officer that she had played with J.M.'s private parts by rubbing them, that she had received a spanking from J. and J. when she told a caregiver that her hands smelled because of an incident with J.'s private parts and that J. did not want her to tell anyone about it.

J. later told her foster mother that J. rubs his privates really fast on his bed and white stuff comes out and it tastes really yucky. She told her foster mother that J. had asked her to taste it. She told her foster mother this happened all the time when her mom is at work. Mr. M. denies these allegations. [ 18 ] B.T., J.'s grandmother who shares custody of J., states in her affidavit that she has questioned J. about this a number of times as have other family members and J. now says nothing happened. The police have recommended that J.M. be charged with a number of offences related to J.

Those charges have not yet been approved, although almost two years have passed. [ 19 ] B.T. and J.'s father now have joint custody of J. and the Director withdrew their application for a continuing custody order. J.M. is to have no contact with J. J.M. and J.T. state in their affidavits that they only agreed to these orders because they did not want to go through a long trial concerning J. and did not want her to stay in foster care for two years awaiting trial. They continue to deny that anything untoward occurred with J. I do have to note that J. was not in foster care at the time of the hearing.

Rather, she was in the care of her father. [ 20 ] The Director's concerns with respect to J. are that she does not believe any of the sexual abuse allegations with respect to J. and, as a consequence, she is unable to protect W. Education and counselling regarding sexual abuse of children was offered to J. after J.'s removal and J. has refused to attend any of these services. [ 21 ] I should add that J.M.'s parents have brought an application for custody of W. and that matter is now joined with the CFCSA application. In that file and in his affidavits filed in the protection matter, Mr. M.

Sr. urges the Director to return W. to the care of J.and J. and, failing that, applies for interim custody. Mrs. M. in her affidavit states that she and her husband can provide safe supervised access to W.'s parents if awarded interim custody. [ 22 ] The Director does not consider Mr. or Mrs. M. suitable or appropriate caregivers for W. because of their support for J. and because of Mrs. M.'s disbelief of her granddaughter F.'s allegations, and both of their refusal to believe allegations against J. [ 23 ] The law in this area is clear, particularly The Director v. M.H. which is a decision of Mr.

Justice Halfyard found at [2008] B.C.J. No. 1510 . That case held that the issue at a presentation hearing is not whether a child is in need of protection. The question is whether it would be in the best interests of the child for the Director to have interim custody of the child pending a protection hearing. Mr. Justice Halfyard stated that the decisive issue will almost always be the degree or extent of risk that a child will be harmed in some way as defined in s. 13(1) of the Act if returned to the parents in the interim. [ 24 ] As I have stated throughout, a presentation hearing is a

summary process. It does not contemplate a thorough analysis of the evidence. It does not contemplate weighing the evidence or cross-examination. Issues are addressed on a balance-of-probabilities basis. Hearsay is admissible. [ 25 ] Where a parent denies the allegations upon which the removal of the child was based, such conflicts as to essential facts should be decided in favour of the Director.

I must determine after considering the evidence if there is an appreciable risk that W. will be harmed if he is returned to his parents. [ 26 ] I must determine first that if W. was removed, there were objectively reasonable grounds to believe that he was then in need of protection and that either W.'s health or safety were in immediate danger or no other less disruptive measures were available that could adequately protect W.; second, that there continues to be objectively reasonable grounds to believe that the two essential elements required under s. 31 [sic] of the Act continue to exist; and third, that the degree or the extent of the risk that W. will be harmed if he is returned to his parents is of sufficient magnitude to require that he be kept in the interim custody of the Director pending a protection hearing. [ 27 ] I remind myself that the standard of proof in child protection matters is not the same as criminal matters.

Facts at issue are to be proven on the balance of probabilities, not beyond a reasonable doubt. [ 28 ] I am also aware that a prosecutor's decision in the past not to proceed on sexual assault charges involving a young child does not necessarily mean that the Director cannot use that evidence to prove those allegations in a civil court. [ 29 ] I cannot help but be struck by the similarity of the facts of the two sets of allegations made by the two children, F. and J. The conduct of J.M. in these two sets of circumstances is corroborated to some degree by the Internet evidence.

I agree with the Director's counsel that the level of detail in F.'s 2010 statement is a strong indicator that she has not fabricated these events. They have the ring of truth about them. [ 30 ] I am also aware that sexual assaults against young children are generally acts that occur in the privacy of one’s home and do not occur in front of spouses, parents, family, friends, or doctors. They are notoriously difficult to detect. I am satisfied that the Director has produced some evidence that J.M. has sexually abused two children previously in his care.

Further, they have produced evidence that he has accessed a website related to child exploitation and boasted of activities that could harm a child. This information constitutes objectively reasonable grounds that W. was in need of protection at the time of his removal. His safety was in danger. [ 31 ] Because of J.M.'s past behaviour, I find that the degree of risk to the safety and well-being of W. is high. It remains high today. [ 32 ] I find that J.T. denies any sexual assaults occurred while J. was in her custody.

Because of this denial, she is unable or unwilling to protect W. from the risk of future sexual assault by J.M.

[ 33 ] Consequently, W. cannot be protected otherwise than by granting interim custody to the Director. [ 34 ] I turn now to the question of where W. will be placed. Given that Mr. M.'s parents continue to deny these allegations and support their son, I cannot conclude that they can safely protect W., given their steadfast belief in J. B.T. is already caring for J. and K. [phonetic] and, as I expressed in this hearing, it is clear in her affidavit that she is permitting and participating in cross-examination of her young granddaughter.

In my view, given these concerns, she is not an appropriate caregiver for W., either. [ 35 ] So W. will remain in the interim care of the Director. [ 36 ] With respect to access by the parents, what is the Director suggesting? [ 37 ] MR. BOON: Access to the parents supervised at the discretion of the Director. [ 38 ] THE COURT: All right. There will be access to both parents of W. supervised at the discretion of the Director. [ 39 ] MR. BOON: Your Honour, we would ask for a commencement for the protection hearing in roughly three to four weeks? [ 40 ] THE COURT: April 4th, is that agreeable with you?

Okay. [ 41 ] MR. MUNSON: 2:00 p.m. [ 42 ] THE COURT: April 4th at 2:00 p.m. Is it court 7? [ 43 ] THE CLERK: Yes, Your Honour. [ 44 ] THE COURT: Court 7. Both files go to that day. Has an order actually been made joining them? [ 45 ] MR. BOON: I do not think so. [ 46 ] THE COURT: All right. Well, I will make that order at this point. File 92727 and 93207, Mr. and Mrs. M.'s application for custody, are joined for all purposes. [REASONS FOR JUDGMENT CONCLUDED]