Director v. D.L.K. and D.P.K. Date:, 2016 BCPC 29

Citation: Director v. D.L.K. and D.P.K. Date: 20160112 2016 BCPC 0029 File No: 6674 Registry: Vernon 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: R.A.A.(1) , born [omitted for publication] R.A.A.(2) born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.L.K. PARENT AND: D.P.K. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MCKIMM Counsel for the Director: T.J. Knight & L Volkers, articling student

Counsel for the Parent: (for D.L.K.) B. Muliner Counsel for the Parent : (for D.P.K.) R. Muto and A Hubbard Place of Hearing: Vernon , B.C. Date of Hearing: November 13 & 14, 2014; April 27, 28 & 29; May 4, 5 & 11; September 18; October 13, 14, 15 & 16, 2015 Date of Judgment: January 12, 2016

Summary [ 1 ] This is an application brought by the Director pursuant to section 41(1) (

d) of the Child, Family and Community Service Act R.S.B.C. 1996 Ch. 46 that the children R.A.A.(1) born [omitted for publication] and R.A.A.(2) born [omitted for publication] be placed in the continuing custody of the Director. For the reasons that follow I find that the evidence establishes that the children were and continue to be in need of protection and that the nature and extent of the harm the children have suffered or the likelihood that the children will suffer harm is such that there is little prospect it would be in the children's best interest to be returned to the parents.

As a result a Continuing Custody Order is granted to the Director for both of the children. Facts [ 2 ] D.L.K. and D.P.K. are the parents of the two children R.A.A.(1) born [omitted for publication] and R.A.A.(2) born [omitted for publication]. At the time of their apprehension in August of 2013 they were four and five respectively. Since the removal and other than a short period of time when the children were returned to their parents following the contested presentation hearing, they have been in foster care.

They are now seven and eight respectively. [ 3 ] The children came to the attention of the Director in August 2013 when they were found by a concerned citizen at 13:00 walking down a four lane road unsupervised. The four year old was walking down the middle of a lane of traffic requiring cars to swerve to avoid her. The children were improperly dressed, the elder wearing large boots up to her knees without socks and the younger wearing sandals that were clearly oversized.

The eldest child complained of foot blisters from walking so much. [ 4 ] When the children were confronted they told the police and the concerned citizen that they were walking from their residence to the Dollar Store and that they had done this in the past. By the time the children were observed they were half a kilometer away from their residence.

When the children were returned home their mother D.L.K. was found asleep in her bedroom and clearly the children had been left completely unsupervised. [ 5 ] In an interview with the children it became apparent that this was not the first time that the children and wandered off significant distances without any supervision or attention by either parent. The attitude of D.L.K. was that the girls had been disobedient and did not obey her instructions that they were not to leave the property. When D.P.K. arrived home his attitude was anger at the presence of the social worker.

Neither parent was prepared to engage with the ministry in the creation of a “safety plan” such that the Director could have confidence that this dangerous behaviour would not recur. [ 6 ] Even when responding to the serious allegations of lack of supervision in her affidavit material D.L.K. displays an astonishing lack of insight with respect to her behaviour. In her affidavit material she writes, 27. It appears from Mr. Haldik’s [sic.] materials that the reason he removed our children was because I did not have an idea how to control them leaving the property.

Of course, I know how to control them leaving the property, I locked them inside; that will not work as they are children who are on summer vacation and want to be outside. 28. What I do, of course, is check in on them more often when they are outside. Since the removal of our children, no children are playing outside the building at this time. All of the children played outside prior to the removal. However, given the concerns and fears of all parents, it would be in our interest to set up a parent watch of the building yard. This is something I will look into arranging for the afterschool play time this fall.

Affidavit #1 filed September 9, 2013 [ 7 ] In her evidence at trial D.L.K. described that her method of supervising these young children when they went outside was to set a timer on the stove and when the timer went off to go check on the children. While this method of supervision is obviously completely inadequate, even providing such an explanation to the court reflects a continuing lack of understanding of the role of a parent.

In my view D.L.K. does not actually appreciate the seriousness of the behaviour and would not take steps in the future to ensure it did not happen again. [ 8 ] I accept that the principal reason for the removal was not simply that the children had wandered off by mistake, but rather the apparent inability of either parent to articulate appropriate concern for the behaviour which placed their children at significant risk. Regrettably, during the period of time that the children were in foster care, and prior to trial, the youngest child escaped from foster care and began to walk home.

The child was returned back to those foster parents who immediately expressed profound regret that the child was able to escape, immediately articulated appropriate plans to ensure it did not happen again and took full responsibility for their failure in allowing this to occur.

[ 9 ] The parents submit that, because the children were not removed from the foster home after the youngest child ran away, that the court should ascribe little weight to that behaviour in assessing whether or not a Continuing Custody Order ought to be granted. I do not accept this submission. The foster parents displayed entirely appropriate responses to the incident which demonstrated clearly an appropriate grasp of the parents’ duties and responsibilities.

On the contrary D.L.K. and D.P.K. do not understand the seriousness of that behaviour and I have no confidence they would actually take any steps to ensure this did not occur in the future. [ 10 ] Following the removal an extensive file review was conducted from which it was readily determined that both of these parents had placed their children in high risk situations for virtually their entire lives. Having reviewed the volumes of materials filed and considered all of the evidence I find that the parent’s lifestyles during the lives of their children could best be described as completely chaotic.

The parties moved regularly between British Columbia and Ontario and regularly attracted the attention of the ministry as a result of their lack of parenting abilities. [ 11 ] Following the children's removal it was noted that the youngest child's teeth showed evident signs of rot and decay. The children were taken to a local dentist who described the state of R.A.A.(1)’s teeth as ”terrible”. The child required the extraction of several teeth as well as removal of the nerves into the teeth because the rot was so deep into the nerve chamber.

The dentist advised the foster parents that there was rot to virtually every tooth. A review of the medical records shows that prior to the apprehension the deterioration in the oral health of this child was so substantial that on one occasion the parents were required to take the child to a hospital to deal with the pain caused by the rotting teeth. [ 12 ] In her evidence, D.L.K. testified that the parents were very regular with oral hygiene. She also testified that she had taken significant steps to address the difficulties with her child's teeth.

On this point, as in virtually every other point, I do not accept her evidence. Her assertion completely contradicts the state of the child's oral health. Furthermore, when challenged with respect to the name of the dentist she was unable to produce a name. The complete failure to properly care for R.A.A.(1)’s oral health causes the court great concern. [ 13 ] Following the children's placement in foster care medical examinations were undertaken to inquire into the health of R.A.A.(2).

At the time of R.A.A.(2)'s birth she was diagnosed with a relatively common condition called a transposition of the great arteries. Five days after birth she was subjected to a surgical intervention which reversed this condition. The medical records establish that the operation was entirely successful and, as a result, one would not expect ongoing symptoms. [ 14 ] In spite of this, both the parents continue to maintain that R.A.A.(2) suffers significantly from ongoing symptomatology as a result of a severed vocal cord which might have occurred during the course of the open-heart surgery.

They described this symptomology as frequent choking or gaging episodes. They provided the school with elaborate instructions as to what to do in the event of such an episode. The “response” involved taking an antacid. Furthermore, they complained to many doctors that R.A.A.(2) suffered from this gagging and choking. As a result they subjected her to many invasive, significant and painful treatments and assessments as doctors struggled to determine the cause of the choking and gagging.

All of the invasive medical interventions failed to produce any meaningful diagnosis for this alleged symptomology. [ 15 ] After the child was placed in foster care the foster parents noted that R.A.A.(2) never displayed the choking or gagging symptoms which the parents relied on to have their daughter undergo extensive medical treatments. When the child was taken to Dr. Cook for an assessment of these alleged symptoms, he determined that she had no medical difficulties at all but, more importantly, he became gravely suspicious with respect to the reliability of the parents as historians for the children. The

summary of his report reads: The choking episodes have been investigated thoroughly and no medical etiology has been found. Since coming into care foster parents have not noticed any choking episodes. R.A.A.(2) subjectively reports a sensation of antegrade esophageal movement which could represent reflux but reflux is not typically present with "choking". The current medications Ranitidine and Prevacid reduce the acid in the stomach and do not act immediately to help with cough. She could be on one or the other but not both together. I have recommended that both are stopped for now.

If R.A.A.(2) is spontaneously reporting increased esophageal discomfort I would be happy to see her again. Reviewing the various consults in her chart the issues of "choking" has been reported dramatically differently to different specialties. There are reports of it occurring with exercise, at night, with eating and without eating. No abnormalities have shown up on the investigations which have been extensive. Her symptoms have vanished since coming into care .

I worry that the parents are not being truthful with regard to the symptoms R.A.A.(2) is experiencing and possibly influencing her to report symptoms. [Medical report of Dr. Cook, Exhibit Three, Tab one, page four Emphasis in original ]. [ 16 ] It was the view of Dr. Cook that he had been deliberately lied to by the parents, and in particular D.P.K, with respect to the symptomology they had observed in R.A.A.(2). I accept the evidence of Dr. Cook.

I find as a fact that his opinion regarding false complaints of symptoms is borne out in the evidence. [ 17 ] Both parents have consistently fabricated evidence or manipulated doctors throughout the course of the children's infancy for their own purposes. I accept the entirety of Dr. Cooke's evidence and reject the evidence of both parents on this issue. The review of the medical reports reveals abundantly that symptoms are reported differently to various doctors throughout the course of the children's young lives.

In my view, the parents used the unfortunate condition of the child's artery at birth and subsequent damage to her vocal cords to manipulate the authorities, extract sympathy or obtain funding for travel or additional procedures. Without doubt, the greatest evidence in support of this conclusion is the fact that none of the symptomology alleged by either parent, has recurred since the child was placed into care. [ 18 ] I do not accept the evidence of either parent that they were diligent with respect to the follow-up essential to the care of young R.A.A.(2) after heart surgery.

On this issue as well I accept the evidence of Dr. Cook that the parents effectively dropped out of sight after the serious heart surgery much to the amazement of the caregivers at BC Children's Hospital. This failure to provide adequate care stems from the completely chaotic lifestyle of both of the parents, their lack of any residential stability or support in any community.

[ 19 ] In March of 2008, as an example, the parties returned to Ontario ostensibly to allow D.P.K. to complete drug and alcohol rehabilitation. During that short visit the Children's Aid Society of Ontario was required to apprehend their nine-month-old daughter because D.P.K. had simply abandoned her in the Cambridge Ontario City Hall. It appears that this half-hearted attempt at obtaining drug rehabilitation for D.P.K. ended with D.P.K. leaving the treatment centre and both parties returning to British Columbia in spite of the fact that it was evident that D.P.K. had clearly not completed his recovery.

After the apprehension of the children in Ontario, they were returned to the care of D.L.K. on the understanding that she would not leave them in the care of D.P.K. Indeed the records reflect that she indicated that she was no longer going to be a partner with D.P.K.

The evidence also establishes that within a matter of months of this occurrence D.L.K. and D.P.K. were once again together, albeit there is no evidence that he ever dealt with either his addictions or his mental health struggles. [ 20 ] After the parties returned to British Columbia they lived for a period of time in the lower mainland and enjoyed the support of D.L.K.'s mother, D.K. That support seems to have been inconstant at best. D.K. is not a meaningful support on whom the court can place any confidence.

Relatively shortly after moving to the lower mainland, D.K. became convinced that her niece had been sexually assaulted by D.P.K.

She took the matter to the police and, when the police determined that there was not sufficient evidence on which to advance a prosecution, D.K. took it upon herself to begin a very public campaign to drive her daughter and D.P.K. out of the area. [ 21 ] When this matter began in 2014 D.L.K. brought an application to assume custody of the two children presently in question and her action was ultimately joined with the Director's action but on the very day the trial was to commence she abandoned her application in favour of supporting the parties’ position that the children should be returned to them. [ 22 ] There is no evidence before the court that D.K. will provide any meaningful support to these parties going forward.

The Proceedings to Date [ 23 ] Following the children wandering off from the parties residence on August 12, 2013, the children were taken into care. A presentation was made to court alleging the children were removed in accordance with

section 30 of the Child, Family and Community Service Act . R.S.B.C. 1996 Ch.46. The parents opposed that application and a hearing was set. On September 18, 2013, the Court ordered the children returned to the parties under the terms of a Supervision Order pursuant to section 35(2)(

b) of that Act. [ 24 ] On October 23, 2013, the Director received results of certain tests indicating very high levels of drug use by both D.L.K. and D.P.K. D.L.K.'s results for cocaine showed use in the "medium-range" while D.P.K.'s results for cocaine suggested use in the "very high range". Similarly D.P.K. also tested positive for opioids, codeine and hydromorphone. These results were a stark contradiction to the evidence given by both parents both during the presentation hearing in September as well as information provided to the Director during the course of the earlier investigation.

As a result of these drug tests the children were re-apprehended. [ 25 ] The parents once again opposed any orders in favour of the Director and during the course of those proceedings D.P.K. filed a deliberately falsified report from a local laboratory which purported to show significantly lower levels of drug ingestion. In his evidence, at trial many months later, D.P.K. admitted that he endeavoured to defraud the court with the filing of the deliberately falsified report.

This attempt by D.P.K. to deliberately deceive the court is one of the many reasons why the court is not prepared to accept any of the evidence put forward by D.P.K. [ 26 ] On November 8, 2013, after a relatively short hearing the children were ordered to remain in the custody of the Director pursuant to

section 35 [2] [8] of the Child Family and Community Service Act. In December 2013 the Director sought a temporary Custody Order for a period of six months. The hearing for the temporary Custody Order commenced on December 13, 2013 and various orders were made at the behest of the Director requiring disclosure from third parties of medical and police records and an order was also made compelling the production of a parental capacity assessment. This parental capacity assessment was conducted by Dr. John Lawrence. [ 27 ] Over the course of the next 18 months the Court heard 12 days of evidence.

During those months the parents were granted supervised access to the children. The Director limited that access to access at the offices of the Ministry. While the parents were diligent in exercising the access, their behaviour during the access visits continued to display an alarming disregard for the health and welfare of their young children.

The visits were regularly marred by explosions of temper by D.P.K. and by the parent’s insistence, in spite of specific instructions, in telling the children that they would be coming home soon and that a large number of gifts and presents were available for them the moment they returned home. [ 28 ] The evidence shows that these visits with the children often left the children anxious and distressed as a result of the behavior of the parents. The parents were consistently confrontational with Ministry personnel and used the visits to vent their anger at the actions of the Ministry.

On May 2, 2014, an Order was made terminating all access visits between D.P.K. and the children. Over the next few months the access was slowly restored, but very strictly controlled. [ 29 ] Also during the course of the visits the parents continue to insist that R.A.A.(2) suffered from serious health ailments and required very special attention.

As an example, they insisted on using a steroid-based hand cream on the hands of the children when it was plainly apparent that anything more than a very mild hand cream or moisturizer was not necessary. [ 30 ] During the course of the time the children were in care pending the final resolution of this hearing there was no evidence that R.A.A.(2) suffered from any ailments as suggested by the parents. Indeed the children have thrived in foster care.

There has been no evidence of gagging or other alleged symptomatology which the parents had used consistently to advance the theory that R.A.A.(2) required significant medical attention. I'm satisfied that the position of the parents that R.A.A.(2) continues to suffer from consequences of medical treatments is entirely fabricated by them in an attempt to either garner sympathy, funding for travel, or other undisclosed motivations. [ 31 ] At trial, Dr. Michael Cook testified and I accept his evidence entirely. Dr.

Cook conducted an extensive review of the medical history of R.A.A.(2) and found that not only had the parents been extremely remiss in their care for R.A.A.(2)'s health and well-being,

but also that he was concerned that the parents were fabricating symptoms and thereby subjecting their young daughter to painful and intrusive treatments she simply did not need. The doctor’s opinion is supported by the evidence and I am satisfied on the evidence that this was done deliberately by the parents in an effort to advance personal agendas of their own. I am particularly supported in this conclusion by the compelling evidence that since the children were removed from the care of their parents the symptomology alleged has completely vanished.

There is no other explanation for that change other than at the symptomology alleged by the parents simply never existed and that the parents must have been aware of that fact. Credibility of D.L.K. and D.P.K. [ 32 ] As indicated above, the court rejects the evidence entirely of both D.L.K. and D.P.K. Their evidence throughout the hearing was contradictory and evasive. D.L.K. would answer concerns put to her with respect to the children's welfare with absolute statements that were obviously inconsistent with the truth. As an example, she testified that the children had a rigorous regime of oral hygiene.

The evidence establishes that the youngest child or R.A.A.(1) had rot in virtually every tooth. [ 33 ] Her evidence to various caregivers and service providers has been wildly inconsistent over the course of the investigation and trial preparation process. She deposes in affidavits that she has never consumed narcotics while later qualifies that by suggesting she hasn't consumed narcotics for a lengthy period of time. She has been complicit with Mr.

Angel in the perpetuation of the fabrication that R.A.A.(2) suffers from serious medical conditions when she clearly does not. [ 34 ] At the conclusion of the trial an exhibit which was filed which showed images from the security camera at a local big-box store. In those images it is absolutely apparent that D.P.K. in the presence of D.L.K. and of their 17-year-old niece is brazenly shoplifting merchandise.

There is no question from the images that D.L.K. is well aware of D.P.K.'s behaviour and D.P.K. is blatantly committing theft in the presence of his 17-year-old niece while he is awaiting the conclusion of this very trial. [ 35 ] D.P.K. refused to release to the Director, or to any of those conducting any investigations, any medical or legal information that might assist in the evaluation of his capacity to care for these children.

In my view, his failure to fully disclose information weighs against him in the analysis of whether or not the Director has met their burden and also minimizes the reliability of his evidence. [ 36 ] There's no question, however, that simply because I do not accept the evidence of D.L.K. or D.P.K. that that means the Director has met the burden under the Act to establish the Continuing Custody Order must be made. It is necessary to consider all of the evidence and weigh it carefully in light of the provisions of the Act and determine whether or not in order under

section 41 [1] [d] should be made. The Law [ 37 ] The Child, Family and Community Service Act R.S.B.C. 1996 Ch 46 provides a comprehensive process by which the court must consider applications by the Director to obtain a Continuing Custody Order. Apart from the specific procedural processes found in

section 40 and 41 of the Act there are particular guiding principles provided in sections 2, 3 and 4 which provide the lens by which the test is applied. Those sections provide; Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance 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 rests primarily with the parents; (

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

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) the cultural identity of aboriginal children should be preserved; (

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) aboriginal people should be involved in the planning and delivery of services to aboriginal 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 those receiving the services; (

d) services should be integrated, wherever possible and appropriate, with services provided by government ministries, community agencies 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. Best interests of child 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining thechild's best interests, including for example: (

a) the child's safety; (

b) the child's physical and emotional needs and level of development; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child's cultural, racial, linguistic and religious heritage; (

f) the child's views; (

g) the effect on the child if there is delay in making a decision.

(2) If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining thechild’s best interests. [38] In the case at bar the Director submits that these children at the time of apprehension were in need of protection as that term isdefined in section 40(1) of the Act.

They further submit that the nature and extent of the harm suffered by these children at the hands ofthese care givers and the likelihood that they will continue to suffer harm is such that there is little prospect that it would be in their bestinterests to be returned to the parents. [39] In this case no temporary Custody Order was ever made. As a result the Director is proceeding directly under the provisions ofsection 40(1) and section 41(2)(c). BB. vs. British Columbia (Director of Child Family and Community Services 2005 BCCA 46, 2005 B.C.J. 124 (B.C.C.A.).

First, the Court must decide if the children are in need of protection under the Act s-s 40(1). Theterm “in need of protection” is defined in

section 13 of the Act. [40] If the finding is positive then the Court must proceed to consider the plan of care of the Director and any other evidence thatmay be necessary. In this case, I have considered the plan of care as well as the evidence from twelve days of oral testimony. I havealso considered the documents submitted by the Director, but only those on which counsel for the Director indicated that she intended torely.

So, for example, I have not considered any of the many newspaper articles found in the material relating to the history of D.P.K. [41] After considering all of the evidence the Court must consider a number of options for placement ranging from; a return to theparents under supervision, placement with a third party, a temporary Custody Order in favour of the Director, or a Continuing CustodyOrder placing the children in the care of the Director indefinitely. In my view it is appropriate to consider each of these optionssequentially and not in isolation.

By that I mean that I consider first if the children can be returned to the parents, if that is not in theirbest interests then I consider if there is a third party other than the Director who might take custody of the children. Next I will considerwhether the best interests of the children will be met by a temporary Custody Order in favour of the Director.

It is only after the Courthas considered all of the other options that it is appropriate to consider if the children’s best interests can only be met by the making ofthe most final of orders, the Continuing Custody Order under the Act s-s 41(1)(a)-(d). [42] Finally, the Court must not order the continuing custody to the Director unless the evidence establishes on the balance ofprobabilities that, the nature and extent of the harm the child (ren have) suffered or the likelihood that the child will suffer harm is such that there is littleprospect that it would be in the child’s best interests to be returned to the parent(

s) Act S-S 41(2)(c) [43] Like the presentation hearing, the analysis of all of the above is guided by the core principles articulated in sections two, threeand four of the Act. Application of the Law to this Case [44] As I indicated above I do not find the evidence of either D.L.K. or D.P.K. reliable nor trustworthy and as such I do not considerit in the analysis of whether or not the Director has met their burden in this case.

In order to determine that question I must consider allof the evidence. [45] On September 18, 2013, at a contested presentation hearing I agreed with the Director that, on the basis of the evidencepresented and having accepted the evidence of the Director as I am required to do, that the children were properly removed on August12, 2013. I considered the best interest of the children and the evidence that was advanced and available to the court at that time andordered that the children be returned pending the protection hearing.

The children were removed again on the basis of drug results onwhich the Director ultimately declined to rely. That does not mean, however, that the Director was in error to remove the children againnor that the Director concedes that there is a not a drug addiction issue that affects these parents ability to meet the needs of theirchildren. While I am not satisfied that the Director has established that D.L.K. suffers from a significant drug addiction issue, I amsatisfied on the whole of the evidence that D.P.K. continues to suffer from a significant drug addiction which D.L.K. has not recognized

nor accepted. Even if the addiction is not to illegal narcotics as some of the reports surmise even his addiction to prescription pain medication is at such a level as to impair his capacity to effectively parent these children. [ 46 ] With respect to D.P.K. and his mental health and addiction struggles the author of the parental capacity assessment writes: D.P.K. has several mental health disorders which impair his capacity to parent. His levels of prescription drug use show his tolerance for opioid pain medication has steadily increased with no apparent improvement in pain management.

High chronic doses of narcotics are defined by differing agencies as over 120 and 200 mg morphine equivalent per day D.P.K’s. daily morphine equivalent use is at about 1100 mg. High chronic doses may have side effects including: increased tolerance, hormonal changes, risk of adverse side effects such as falls and alertness for safety-related activities such as driving, unpredictable and potentially toxic interactions with other substances, fatal overdoses, increased pain sensitivity, impulsivity, drug dependence and drug seeking behavior, erratic behavior, and alterations in mood and personality.

All of those side effects present significant risks of harm for children in the drug users care. Exhibit 2, Parental Capacity Assessment Page 30 [ 47 ] These conclusions from Dr. Lawrence are well borne out in the evidence before this court and I except those conclusions. [ 48 ] I’m also satisfied that both of these parties suffer from significant mental health struggles. D.P.K. subsists on disability benefits which arise as a result of his mental health conditions. While he endeavoured to minimize his psychiatric diagnosis by reference to an unspecified and vague complaint of wrongdoing by his psychiatrist .

He testified that the diagnosis of his treating psychiatrist ought to be given no weight as that psychiatrist had been disciplined as a result of her relationship with D.P.K. I put little weight on this attempt to minimize his mental health disorders as no evidence was led either from his psychiatrist or in any other form in D.P.K.’s case that, whatever the difficulties that may have led to the psychiatrist’s disciplinary proceedings, that those issues discredit her diagnosis.

I am strengthened in this conclusion by D.P.K.’s failure to consent to release of all of his medical and psychiatric information as requested by the author of the parental capacity assessment or the Ministry. D.P.K. also continues to collect social benefits based on his mental health diagnosis. [ 49 ] I also find that D.L.K. suffers from an ongoing mental health struggle as well. These are documented in Dr Lawrence’s assessment and the medical records reviewed by the court.

The parental capacity assessment describes her struggles in this way; D.L.K.’s mental health disorders are perhaps not as obvious as those of D.P.K. Her mental health disorders are different from, but complementary to those of D.P.K. It is notable to those persons who interact with D.L.K. that she uses odd, abstract, convoluted and often bizarre metaphysical language. For example, D.L.K. refers to the friends that D.P.K. says he has among music personalities as allies.

She and D.P.K. talk with R.A.A.(2) about arranging for R.A.A.(2) to have relationships with or marry those music personalities (Axyl Rose, David Bowie.) [1] D.L.K. shows difficulty with orientation to reality. D.P.K. habitually manipulates reality. D.L.K. has not had employment for the past eight years but she has not qualified for income assistance as a Person with a Disability, and she does not appear to be disabled from employment. She was employed as a waitress when she met D.P.K (Her description was that she was a “food and beverage server in “fine dining establishments”).

When asked about the work she would consider doing in the future she said she would like to take an astrology course or herbology program. She uses language and describes thought process which shows that she is dissociated from day-to-day experience. In her previous psychiatric assessment D.L.K. was described as having symptoms and a history consistent with Schizotypal Personality Disorder,a bipolar disorder and substance abuse issues. D.L.K. currently shows symptoms that are consistent with a Schizotypal Personality Disorder and she has shown those symptoms since early adulthood.

She uses odd, circumstantial, metaphorical and over-elaborate speech. She shows eccentric behavior, odd beliefs and magical thinking. She has cold and inappropriate affect. She has a tendency to social withdrawal. She has ideas of reference (she perceives actions in communications intended generally as specifically intended for her.) She readily perceived hostile intentions in mundane interactions. She reports unusual perceptions and experiences. She is prone to social isolation and lacks close friends. She ruminates. She is prone to bizarre and paranoid ideas, and quasi-psychotic episodes.

D.L.K. also presents labile emotions, rapid onset of extreme anger, and is prone to explosive outbursts. Exhibit 2, Parental Capacity Assessment Page 34 [ 50 ] Most importantly Dr. Lawrence finds that D.L.K.’s mental health struggles are intertwined with her interdependence on D.P.K. The evidence of Dr. Lawrence with respect to the mental health and capacity of D.L.K. is also well borne out in the evidence. [ 51 ] Throughout this proceeding both D.L.K. and D.P.K. have refused to accept either their own mental health or addiction struggles or any offers of assistance by the ministry.

Rather, their reaction has been defiance and opposition to all ministry personnel and caregivers. I have carefully considered the parental capacity assessment and in my view the facts relied upon by Dr. Lawrence are all established in the evidence and as such I find that his conclusions are sound. With respect to whether or not D.P.K.’s and D.L.K.’s struggles limit their ability to effectively parent these children Dr.

Lawrence writes the following: If the children were in their parents care they would be at elevated risk for emotional harm because they would pattern their own development according to the models provided by their parents. The children would develop distorted perceptions and dysfunctional ethics. They would have difficulty understanding concepts such as honesty, and respect for personal property. It is likely that they would assimilate skills with manipulating information and people.

In their parents’ care the children would be at high risk for developing disorders of adolescence, personality disorders, and addictions and would likely function on the social fringe, likely with mental health disorders and criminal involvement – much like their parents. In order for the parents to become capable of parenting they would need to make significant changes.

The first change it be that they would have to actually acknowledge the extent of their problems, to the extent that they are capable of doing so given their mental health disorders, and they would have to willingly and wholeheartedly engage in further assessment of their disorders. Although this parental capacity assessment has benefited from substantial information about the parents that had not previously been assembled or available to other assessors, the diagnostic conclusions in this assessment are not complete. Any addictions or mental health assessors would need to

have access to the findings and conclusions in this report. During the assessment for the report the parents were defensive, guarded, often hostile, and generally did not provide credible information. Further assessment is required in order to properly understand the parent’s disorders. In order for further assessment to be more precise, the parents would need to be more forthcoming.

Exhibit 2, Parental Capacity Assessment Page 38 [ 52 ] Given the persistent refusal to cooperate, to provide information, or to accept their own challenges on the part of both of these parents, there is no evidence before this court which would suggest that the parents have any ability take the kind of positive steps that would be essential to their ability to parent on an ongoing basis. [ 53 ] I also accept the evidence of Dr. Cook. In my view he was a balanced and considered witness who was unshaken in cross examination.

His opinion is that these parents have either deliberately, or, as a result of a lack of ability to grasp reality, contrived symptoms and symptomology for their daughter R.A.A.(2). In my view the evidence establishes that the parent’s behaviour around R.A.A.(2)’s medical condition is deliberate and not as a result of a misperception a reality. In any event, the consequence of either conclusion, as it relates to their ability to parent, is the same.

If they cannot perceive reality accurately they placed the child at risk and similarly if they perceive reality accurately and deliberately intend to mislead medical health practitioners for their own purposes they placed the child at risk. Are the Children in Need of Protection? [ 54 ] The Director has established that these children are in need of protection as defined in section 13 (1) (

a) and 13(1)(

d) of the Act . In particular I am satisfied on the balance of probabilities that the children have been or are likely to be physically harmed by their parents and that the children have been and are likely to be physically harmed because of the neglect by these parents. This is evident both from the evidence of the significant dental decay in the younger child’s mouth as well as the subjection of the older child to unnecessary, invasive, and painful medical treatments. [ 55 ] Similarly in my view the children are in need of protection because I’m satisfied they will be emotionally harmed by the parent’s conduct.

See para 51 above. This is evident from the ongoing criminal behaviour exhibited by the parents and in particular the evidence of the parents on a concerted shoplifting spree while in the company of their young niece. Should the children be placed in the continuing custody of the Director? [ 56 ] I’m equally satisfied that the Director has met the test found in

section 41 [2] [c]. These children have suffered harm at the hands of these parents. That is evidenced by the persistent refusal to tend to the dental needs of the children, the lack of supervision or understanding of the need for supervision of these children and leaving them in a dangerous situation and of the continuing attempt to ascribe medical conditions to the youngest daughter and thereby causing her to be harmed by her well-intentioned but misinformed physicians.

There is little prospect that it would ever be in the children’s best interest to be returned to these parents. [ 57 ] There is no evidence to establish any resources which might be made available to these parents to assist them in properly parenting the children within their family environment.

I am satisfied of this because, even if there were counselling, assessment and therapy modalities available to support these parents, their attitude of obstructionism and resistance to any efforts to assist them establishes that there is no chance that any services offered would be effective. [ 58 ] The plan of care for these children is that they be placed out for adoption in a manner that respects their Metis heritage. There is no other plan that better meets the best interests of these children. Having considered all of the above in my view the only result available is a Continuing Custody Order. Order 1.

R.A.A.(1) born [omitted for publication] and R.A.A.(2) born [omitted for publication] are in need of protection. 2. R.A.A.(1) born [omitted for publication] and R.A.A.(2) born [omitted for publication] are placed in the continuing custody of the Director. THE HONOURABLE JUDGE D.M. MCKIMM