DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2023 BCPC 53

Citation: British Columbia (Director of Child, Family and Community Services v. K.J.B. 2023 BCPC 53 Date: 20230314 File Nos: [omitted for publication] Registry: [omitted for publication] 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: E.M.B. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.J.B. PARENT AND: M.S. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Director: R. Yalowsky Counsel for the Parent K.J.B.: A.

Huang Counsel for the Parent M.S.: J. Upton Counsel for the Child E.M.B.: M. Zimmerman Place of Hearing: [omitted for publication], B.C. Dates of Hearing: January 12, 13, 14, 15, 20, 21, 22, June 15, 21, 30, July 23, 27, 28, 29, November 29, 30, December 7, 8, 14, 15, 16, 2021; June 22, 23, 24, July 21, 22, 27, 28, 29, September 1, 2, November 29, 30, December 1, 2, 2022 Date of Judgment: March 14, 2023 INTRODUCTION

[ 1 ] E.M.B. (hereinafter referred to as “E.”) is almost [omitted for publication] old. Her parents are K.B. (or “Ms. B.” or “K.B.”) and M.S. (or “Mr. S.”). Except when E. has been in the care of the Director, E. has lived with her mother. E. never met her father. On March 18, 2019, the Director removed E. from her mother’s care for the third time in two years. [ 2 ] This is an application by the Director for a continuing custody order pursuant to section 41(1) (

d) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (hereinafter referred to as the “ CFCSA ”). [ 3 ] The trial commenced January 12, 2021 and continued for 21 days in 2021 and 14 days in 2022, concluding December 2, 2022. On June 24, 2022, an order was made appointing counsel from the Child and Youth Legal Centre to represent E. pursuant to

section 67 (

c) of the CFCSA . THE POSITIONS OF THE PARTIES AND E. [ 4 ] The Director submits that Ms. B.’s continued cannabis use and her mental health prevent Ms. B. from properly parenting E., such that E. is in need of protection. The Director further submits the appropriate order in these circumstances is a continuing custody order. If a continuing custody order is made, the Director submits it is not in E.’s best interests that an access order be made. [ 5 ] Ms. B. submits that the Director has failed to prove any protection concerns. She submits that E. should be returned to her care.

If a continuing custody order is made, Ms. B. seeks access to E. [ 6 ] Mr. S. only attended court on a few occasions and then only when he was in jail. He was not present for the last week of trial when he was scheduled to testify. Counsel for Mr. S. submits that Mr. S.’s application for access should be adjourned generally. [ 7 ] E. does not want to see her mother. She wishes to remain with her foster parents. E. opposes an access order. She says that her mother should abstain from the use of cannabis and engage in counselling. THE ISSUE [ 8 ] Does Ms.

B.’s mental health and continued consumption of cannabis give rise to the protection concern that E. will suffer harm while in her mother’s care, such that it is likely there is little prospect it would be in E.’s best interests to be returned to her care? MS. B.’S HOSPITAL ADMISSIONS 1. February 26, 2017 – Ms. B. was detained under the Mental Health Act and discharged February 28, 2017. See Exhibit 2, tab 9, pages 1–8; 2. August 3, 2017 – Ms. B. was detained under the Mental Health Act and discharged August 5, 2017. See Exhibit 2, tab 10, pages 1–4; 3. August 9, 2017 – Ms.

B. was detained under the Mental Health Act and discharged August 14, 2017. See Exhibit 2, tab 10, pages 5– 13; 4. August 20, 2017 – Ms. B. was detained under the Mental Health Act and discharged August 21, 2017. See Exhibit 2, tab 10, pages 16–20; 5. October 26, 2017 – Ms. B. was detained under the Mental Health Act and discharged November 1, 2017. See Exhibit 2, tab 11, page 4, and Exhibit 3, tab 25, page 21; 6. January 3, 2018 – Ms. B. was taken to the hospital voluntarily by the police. Ms. B. was not detained under the Mental Health Act and left hospital that day. See Exhibit 2, tab 12, pages 1–5; 7.

January 5, 2018 – Ms. B. was detained under the Mental Health Act and discharged January 12, 2018. See Exhibit 2, tab 12, page 6; 8. March 7, 2018 – Ms. B. was admitted to the hospital in a state of great distress. Ms. B. was given a day pass on March 8, 2018 and a weekend pass on March 9, 2018. She returned March 12, 2018 and was discharged. See Exhibit 2, tab 13, pages 1–3 and 5; 9. March 28, 2018 – Ms. B. requested admission to hospital and was discharged April 2, 2018. See Exhibit 2, tab 13, pages 6 and 7; 10. April 19, 2018 – Ms.

B. agreed to an elective admission to hospital and was discharged April 23, 2018. See Exhibit 2, tab 13, pages 8–10; 11. April 26, 2018 – Ms. B. agreed to a voluntary admission and was discharged April 30, 2018. See Exhibit 2, tab 13, pages 11 and 12; 12. March 18, 2019 – Ms. B. was admitted to hospital. Ms. B. appears to have been granted leaves and was ultimately discharged March 27, 2019. See Exhibit 2, tab 14, pages 1–9; 13. April 23, 2019 – Ms. B. admitted herself into the hospital and signed herself out the same day. See Exhibit 3, tab 25, page 36; 14. April 24, 2019 – Ms.

B. was admitted to the hospital and was certified under the Mental Health Act . Ms. B. was discharged April 29, 2019. See Exhibit 3, tab 25, pages 37 and 38; 15. May 7, 2019 – Ms. B. was detained under the Mental Health Act and discharged May 24, 2019. See Exhibit 2, tab 15, page 11; 16. June 30, 2019 – Ms. B. was detained under the Mental Health Act and discharged July 4, 2019. See Exhibit 2, tab 16, pages 11 and 12;

17. June 26, 2021 – Ms. B. was detained under the Mental Health Act and discharged June 28, 2021; See Exhibit 10, page 2; 18. February 26, 2022 – Ms. B. was detained under the Mental Health Act and discharged March 4, 2022. See Exhibit 18, tab 21, pages 1 and 2; 19. May 8, 2022 – Ms. B. voluntarily admitted herself into hospital and discharged herself that day. See Exhibit 18, tab 30, page 1; 20. May 13, 2022 – Ms. B. was admitted to hospital and left the next morning. See Exhibit 18, tab 33, page 1; 21. May 14, 2022 – Ms. B. was admitted to hospital under the Mental Health Act and was released later in the day.

See Exhibit 18, tab 38, page 1; 22. October 14, 2022 – Ms. B. voluntarily admitted herself into hospital and was discharged the next day. See Exhibit 26, Affidavit of Allegra Mills sworn November 23, 2022, paragraph 4 and Exhibit B to the affidavit; 23. October 24, 2022 – Ms. B. was detained under the Mental Health Act and discharged October 26, 2022. See Exhibit 26, Affidavit of Allegra Mills sworn November 23, 2022, paragraph 4 and Exhibit B to the affidavit; 24. November 10, 2022 – Ms. B. was detained under the Mental Health Act . There is no identified discharge date.

See Exhibit 26, Affidavit of Allegra Mills sworn November 23, 2022, paragraphs 8–10 and Exhibit A to the affidavit. THE TESTIMONY OF DOCTOR B. [ 9 ] Dr. B. was qualified to give expert opinion evidence with respect to general adult psychiatry, the effects of cannabis on the brain and psychiatric mental-health conditions. [ 10 ] Dr. B. been Ms. B.’s treating physician and has diagnosed Ms. B. with the following conditions:

a) Psychosis due to cannabis use or in the alternative, schizoaffective disorder complicated by cannabis use;

b) Post-traumatic stress disorder – severe;

c) Cannabis use disorder – severe;

d) Chronic anxiety due to psychosis. [ 11 ] Dr. B.’s treatment recommendations are as follows:

a) Ms. B. should abstain from cannabis use and seek help for withdrawing from cannabis use;

b) Ms. B. should attend for psychotherapy;

c) Ms. B. should take antipsychotic medication. [ 12 ] Dr. B. believes that it will take years for Ms. B. to recover. In cross-examination, Dr. B. said that if Ms. B.’s self-medicating with cannabis was working, Ms. B. would be functional – which he says she is not – and she would not have to be hospitalized. THE TESTIMONY OF K.B. [ 13 ] K.B. was born in [omitted for publication] in [omitted for publication]. She grew up with her grandmother S., her mother K. and her older sister J. Ms. B. did not meet her father until she was 16. [ 14 ] J. got pregnant when Ms. B. was 14.

Their mother asked J. to move out, which she did. When Ms. B. was [omitted for publication], she went to live with J. [ 15 ] At school, Ms. B. was subjected to racism. When Ms. B. was in grade 11, her partner started to physically abuse her. [ 16 ] When Ms. B. was [omitted for publication], she and J. and J.’s daughter moved to New Westminster, British Columbia to get away from Ms. B.’s boyfriend D. Ms. B. returned to Calgary to see D. and got pregnant. [ 17 ] M. was born in [omitted for publication]. D. physically abused Ms. B. and sexually abused M. and as a result, Ms. B. ended their relationship. [ 18 ] Ms.

B. then completed a program at Douglas College and thereafter was attending UBC and living in Vancouver. [ 19 ] While at Douglas College, Ms. B. began a relationship with T. T. was addicted to heroin and died of a drug overdose in 2003. Ms. B. says this is when her mental health began to deteriorate. [ 20 ] M. was in grade [omitted for publication] when he and Ms. B. moved to [omitted for publication]. In [omitted for publication], M. died. Ms. B. says she grieves M.’s death every day. [ 21 ] Ms. B. met Mr. S. in 2013. E. was born [omitted for publication]. E.’s parents separated because Mr.

S. physically abused Ms. B. Ms. B. and E. stayed on [omitted for publication] for about one year and then they moved to [omitted for publication]. E. and her mom moved back to [omitted for publication] towards the end of [omitted for publication]. [ 22 ] Ms. B. says that she suffers from post-traumatic stress disorder and acknowledges that she has mental-health challenges. Ms. B.

says she uses cannabis, listens to music, meditates and keeps active to stay well. She says that her cannabis use does not make her psychotic and she disagrees with Dr. B.’s diagnoses regarding cannabis. [ 23 ] Ms. B. says that the root cause of her illness is M.’s death. However, Ms. B. also said that she is not ill; rather, she is a bereaved mother. Ms. B. says that counselling is difficult and that it will not work for her. Ms. B. also said that she is the one who knows how to cope with the death of her son and no one else does. Ms.

B. says that she recognizes that she may be overwhelmed by grief and “other things” such that she does not know who wants to help her. Ms. B. explained that psychiatric drugs make her feel flat and impatient with E. Ms. B. also said that psychiatric drugs make her feel “raped” and lead to a “bad spiral”. [ 24 ] Ms. B. says that smoking cannabis eases the hurt of M.’s death and of E. not being in her care. Ms. B. also said that she uses cannabis as a coping mechanism. Ms.

B. explained that some of her psychotic episodes can be attributed to the additives she believes are contained in the cannabis sold in cannabis stores in British Columbia. Ms. B. also said that she experiences flashbacks that lead to hospitalizations. [ 25 ] Ms. B. is adamant that cannabis restores the body and allows her to face challenges. She says she ingests cannabis with the highest percentage of THC because it has the most CBD and CBN, which she says are neuromuscular relaxants. [ 26 ] Ms. B. says that if E. was back in her care, her mental well-being would be fine.

E.’S ACCESS TIME WITH HER MOTHER WHILE IN CARE [ 27 ] Prior to the start of the trial in January 2021, E. had time with her mother two to three times a week for two to three hours. On some occasions the time was supervised. [ 28 ] Following the January 2021 court dates, E.’s time with her mother increased to Wednesday after school for two hours and overnights from Friday after school, to Sunday. [ 29 ] In June 2021, the Director decided to reduce E.’s time with her mother due to disclosures E. made to the social workers. Shortly after the Director told Ms. B. about the reduction of access, Ms.

B. was hospitalized. Once Ms. B. was released from the hospital, the Director determined that E.’s time with her mother needed to be supervised. Supervised access commenced in July 2021. [ 30 ] The supervisors reported that E.’s time with her mother went well and that Ms. B. was able to care for E. appropriately. An issue arose between Ms. B. and the supervisors about what Ms. B. was able to bring to the access visits. The supervisors did not want Ms. B. to bring any item that could be characterized as a weapon. This included knives for cutting fruits and vegetables and sharp objects used for arts and crafts. Ms.

B. objected to this and did not comply with the request which resulted in E.’s time with her mother being cancelled. As a result, E. did not have time with her mother between September 15, 2021 and May 18, 2022. Access then resumed and was suspended again on June 16, 2022 when Ms. B. brought a sharp trowel to the access time. E. has not had scheduled in-person time with her mother since then. [ 31 ] Ms. B. explained that the restrictions imposed upon her by the supervisors in her view were discriminatory.

THE DIRECTOR’S PROTECTION CONCERNS [ 32 ] The Director submits it has established the following protection concerns: a. E. has been emotionally harmed by Ms. B.’s conduct; b. Ms. B. is unable or unwilling to care for E. and has not made adequate provision for E.’s care; c. E. has been and is likely to be physically harmed because of neglect by Ms. B.

THE BEST INTERESTS OF THE CHILD [ 33 ] Section 41(2) of the CFCSA provides that a child must not be placed in the continuing custody of the Director unless the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child’s best interest to be returned to the parent. [ 34 ] Under

section 4 of the CFCSA , the court must consider all relevant factors in determining the child’s best interests, including the seven factors listed in that section. The factors listed in

section 4 of the CFCSA are non-exhaustive. A determination of the best interests of the child is to be based on a consideration of the facts of the case and each of the factors listed in

section 4 of the CFCSA . THE BEST INTEREST FACTORS a. the child’s safety [ 35 ] Ms. B. appears to be unable to predict when she will be hospitalized. Ms. B. lacks community support. Ms. B. does not have a plan in place for E.’s care when her health worsens or she is hospitalized. b. the child’s physical and emotional needs and level of development [ 36 ] E. is almost [omitted for publication] old. She needs and wants a responsible adult to be able to provide for both her physical and emotional needs. E.’s needs cannot be met when Ms. B. is unwell. c. the importance of continuity in the child’s care

[37] E. has been in the Director’s care for almost four years. Prior to that, Ms. B. was E.’s primary caregiver. Whether E. can bereturned to her mother’s care depends on her mother’s wellness. d. the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship [38] E. and her mother had a strong relationship. The relationship has weakened during E.’s time in care. The relationship can only berestored if Ms. B. is healthy or is taking significant steps to improve her well-being. e. the child’s cultural, racial, linguistic and religious heritage [39] Ms.

B. described herself and E. as [omitted for publication] refugees. It is more likely than not that E.’s cultural, racial andreligious heritage would be promoted in Ms. B.’s care. f. the child’s views [40] E. does not wish to see her mother at the present time. g. the effect on the child if there is a delay in making a decision [41] It has been almost four years since E. was removed from her mother’s care. E. has developed a strong relationship with her fosterparents. If a continuing custody order is granted, E. will not remain with her foster parents.

ANALYSIS [42] The Director bears the burden of proving that E. is in need of protection. The standard of proof is on a balance of probabilities. [43] The Director must establish that E. was in need of protection on March 18, 2019 when she was removed from her mother’s careand that she continues to be in need of protection. [44] On March 18, 2019, Ms. B. and E. were residing at the [omitted for publication]. Ms. B. was taken from the [omitted forpublication] to the hospital by police where she was detained under the Mental Health Act. Dr. B. described Ms.

B. “in a severepsychosis with auditory hallucinations and extensive persecutory delusions [.] She has disorganized behaviour and thinking [with] noinsight. She is unable to exercise due vigilance for her own safety”. I accept this diagnosis. There was no plan for E.’s care at that time. [45] Accordingly, I am satisfied that on March 18, 2019 when E. was removed from her mother’s care, Ms. B. was unable to care forE. and further, that Ms. B. had not made adequate provision for E.’s care.

E. was in need of protection. [46] The Director submits that there remains a risk that if E. is in her mother’s care, she will suffer harm due to Ms. B.’s continued useof cannabis and her mental health. [47] Where the assertion being made is that an event will occur in the future, then it is the risk of the future event and not the futureevent itself that must be shown by the weight of the evidence to be more probable than not. Generally speaking, a risk sufficient to meetthe test might be described as a risk that constitutes “a real possibility”. See B.S. v.

British Columbia (Director of Child, Family andCommunity Services), (BCCA), paragraphs 28 to 30. [48] I accept Dr. B.’s diagnosis of Ms. B.’s condition. However, it is not the diagnosis that is the focus of this inquiry; rather, it is Ms.B.’s ability to cope and her ability to parent consistently. Based on the evidence before the court, I am satisfied that Ms. B. has notalways been able to cope and has not been able to parent consistently. Ms. B. does not have a plan of care for E. when she is unable tocare for E. Moreover, Ms. B. is unable and unwilling, due to her illness, to follow Dr.

B.’s treatment plan. [49] Ms. B.’s self-care plan does not work. The risk that Ms. B.’s health will worsen to the point that she is unable to care for E. ismore than a real possibility: it is almost a certainty. Ms. B. says that if E. was in her care and she followed her plan of self-care, therewould be no risk to E. Ms. B.’s record of hospital admissions proves that is simply not true. [50] Ms. B. says that racism prevents her from caring for E. Ms. B. has not established that Dr. B.’s diagnosis is based on racism.Further, Ms.

B. has not established that the mental-health team who could assist her has subjected her to racism. [51] Dr. B. acknowledged that there is systemic racism in the healthcare system. Ms. B. has established that she has been subjected toracism in the community. I accept Dr. B.’s testimony that racism is one of many factors that contribute to Ms. B.’s psychosis. I alsoaccept Dr. B.’s testimony that if Ms. B. engaged in psychotherapy, it would give Ms. B. the power to respond appropriately to herstressors and to work with community supports to have E. returned to her care. [52] Ms.

B. says that the no-weapons restriction during the supervised access was a form of racism. I appreciate Ms. B.’s concernregarding this condition. I do note however that at one point Ms. B. agreed to the restriction. In any event, E. was enjoying this time withher mother. Ms. B.’s refusal to follow this condition led to the cancellation of E.’s time with her mother. This hurt E. [53] Ms. B.’s position is clear. She says she will continue with her plan of self-care and cannabis use. She says she will not participatein counselling.

DECISION [54] Having considered the totality of the evidence in this case, I am satisfied the Director has proven the first two of its protectionconcerns. I am not satisfied the Director has proven E. has been physically harmed because of neglect by Ms. B. I find the likelihood E.will suffer harm is such that there is little prospect that it would be in E.’s best interests to be returned to her mother’s care with orwithout any conditions. I find that it is in E.’s best interests to be placed in the continuing care of the Director pursuant to s. 41(1)(

d) of

the CFCSA . ACCESS [ 55 ] The authority for this Court to grant access to a parent once a continuing custody order has been made is pursuant to

section 56 of the CFCSA . [ 56 ] When a continuing custody order is made, parents lose the right of access to the child. Access then becomes a right of the child and not of the parent.

An order for access is the exception, not the rule. [ 57 ] The principle of preserving family ties should only be a consideration in granting access where a continuing custody order has been made, if it is shown to be in the best interests of the child, having regard to all of the relevant factors, including the security or health of the child. [ 58 ] Access to a child who is the subject of a continuing custody order should not be granted if its exercise would have negative effects on the physical or psychological health of the child. [ 59 ] An adoption must not be hampered or jeopardized by the existence of a right of access.

Any access which is ordered must be consistent with the child’s plan of care. See J.L.F. v. Director , 2010 BCPC 17 , at paragraphs 21 to 23 . See also: A.M. v. British Columbia (Director of Child, Family & Community Service) , 2008 BCCA 178 CanLII. [ 60 ] Considering the principles just stated, it is clear that Ms. B. and Mr. S. do not have an absolute right of access to E. Each must establish that an order for access is in the best interests of E. and in particular, that it would not jeopardize, hamper, or negatively affect E.’s security or physical or psychological health. DECISION [ 61 ] Ms.

B.’s inability and unwillingness to follow Dr. B.’s treatment recommendations means that Ms. B. is likely in a continual low- level state of psychosis. This impacts her ability to make rational decisions. Ms. B. has not demonstrated that granting her access at this time would be in E.’s best interests. The access application is dismissed. [ 62 ] Except when E. has been in care of the Director, E. has lived with her mother. E. has never met her father. Mr. S. only attended court on a few occasions and then only when he was in jail. He was not present for the last week of the trial when he was scheduled to testify.

He presented no evidence to the court. Mr. S. has not demonstrated that granting him access would be in E.’s best interests. His application for access is dismissed. _____________________________ The Honourable Judge S.M. Merrick Provincial Court of British Columbia