Director v. K.O. and R.L, 2018 BCPC 79

Citation: Director v. K.O. and R.L 2018 BCPC 79 Date: 20180228 File No: 79012 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Held in Nanaimo IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: N.L. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.O. AND R.L. PARENTS AND: K.O. APPLICANT HER MAJESTY THE QUEEN AND DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RULING OF THE HONOURABLE JUDGE J.E.SAUNDERS Counsel for the Director: K. Rongve agent for M. Greves Counsel for the Parent: R.Miller for K.O.

Counsel for the Parent : S.Hodgson for R.L. Place of Hearing: Nanaimo , B.C. Dates of Hearing: December 6, 2017; January 23, 2018

Date of Judgment: February 28, 2018 THE RELIEF SOUGHT [ 1 ] The Director of Child, Family and Family Development (the Director) has an application before the court filed September 15, 2017 for a presentation hearing in relation to the child, N.L., born [omitted for publication], who was removed on September 11, 2017 due to alcohol use and domestic violence concerns of both parents, K.O. and R.L., which started in 2016, and arose again in July 2017. [ 2 ] There was a history of involvement with the Director dating back to 2016 for similar concerns. [ 3 ] There was a further application filed on September 15, 2017 by K.O. for access to the child. [ 4 ] Counsel for K.O. also filed a Notice of Application for Constitutional Remedy against Her Majesty the Queen (Attorney General of British Columbia and Attorney General of Canada) on November 10, 2017 for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 (the “ Charter ”) with respect to the apprehension of the child by MCFD. [ 5 ] The Attorney General of Canada was served and did not participate. The Attorney General of British Columbia was served and opposed the relief sought under the Charter . [ 6 ] The relief sought is based on an infringement of K.O.’s rights under the Charter pursuant to sections 7 , 11(b) , 15 and 24(1) . BACKGROUND FACTS [ 7 ] The parents resided with the child, N.L., in the basement suite of R.L.’s parents’ home, namely, J.L. and G.L., in Nanaimo.

Due to concerns about the behaviour of the parents in the home, the Director filed a presentation form on July 18, 2016 and an uncontested order was made on July 29, 2016 that the child remain in the care of the parents pursuant to

section 33.2 under the supervision of the Director including, amongst other terms, a term that the parents were not to be together in the presence of the child unless supervised and not to expose the child to physical and verbal conflict and was adjourned to August 29, 2016 for protection hearing. [ 8 ] On September 12, 2016 and with

section 60 consents of the parties, the child remained with the parents under the supervision of the Director for a further three months including terms not to be together in the presence of the child without supervision, not to expose the child to physical or verbal conflict. [ 9 ] The plan of care provided that paternal grandparents would facilitate and support the parents in their care of N.L. [ 10 ] Both parents were represented by counsel during these proceedings. [ 11 ] By March 28, 2017 the parents had filed a Memorandum of Understanding on F80596 agreeing that they were both guardians of N.L., and shared parenting time and parenting responsibilities and decision making.

There is no court order before the court on that file establishing which parent has primary care of N.L. [ 12 ] The removal resulting in the current proceedings is indicated as September 11, 2017 on the Form A filed September 15, 2017. The child has continued to reside with the paternal grandparents. [ 13 ] On September 14, 2017 counsel for K.O. filed an application to waive filing fees for a Writ of Habeas Corpus in the Supreme Court, which was denied. [ 14 ] Attempts were made to have the contested presentation hearing scheduled for a date in October as set out in the affidavit of Ms.

Greves, counsel for the Director at the time, filed January 23, 2018, but due to the grave medical condition of counsel for the Director who had conduct of the file at the time, the presentation hearing and access hearing filed September 15, 2017 was scheduled for December 6, 2017 and proceeded at that time with ad hoc counsel for the Director.

The Notice of Application for Constitutional Remedy was filed on November 10, 2017 and Written Reply of the Attorney General of British Columbia was filed on December 6, 2017. [ 15 ] It was agreed that the evidence on the presentation hearing would be dealt with first and the Charter argument to follow. THE EVIDENCE FOR THE DIRECTOR [ 16 ] Jennifer Belanger testified that she is a social worker employed and delegated by the Ministry of Children and Family Development (MCFD) in Nanaimo and is on the intake and investigation team.

She became involved with the family in July, 2017 and worked with N.L. and her parents, K.O. and R. L. [ 17 ] There had been a RCMP report made regarding domestic violence in the home between the parents. She met with them and the grandparents. She saw the paternal home and K.O.’s new home. R.L. continued to live with his parents.

At the time the investigation started the parents were living with the child in the grandparents’ home. [ 18 ] During the investigation, they got word that the police “put in a no contact order between R.L. and K.O.” (as she put it) and the Director received information that the parents had breached the order and were in the family home together with the child at the time. A safety plan was set up with both parents. Further information came of ongoing breaches by R.L. and K.O. during that time and there were significant child protection concerns.

K.O. was not to be present at the former home and neither parent was to have contact with each other. [ 19 ] The child continued to live in the home and was cared for by R.L. and J.L. R.L. continued to live there as well. Ms. Belanger believed that J.L. had been the primary caregiver for N.L. while the parents lived in the basement.

[ 20 ] At one point she was concerned that the parents would flee with N.L. and they were not complying with the police order. There were ongoing concerns about R.L. slashing the tyres of his mother’s vehicle and ongoing domestic violence with K.O. as the primary aggressor. [ 21 ] As a result of this situation, the Director developed a safety plan. R.L. was advised that due to the concerns the Director would have to establish a safety plan or remove N.L. It was agreed that J.L. would continue caring for N.L. while the investigation continued. [ 22 ] The Family Safety Plan (exhibit 1) was dated July 14, 2017.

It was signed by R.L., J.L. at the house but not K.O. as she was not there at the time due to a no contact order. [ 23 ] She met with K.O. soon after and explained that either the safety plan would have to be put in place or N.L. would be removed but she did not want to sign because she had to wait for her visits which needed to be supervised. Ms.

Belanger explained that a family meeting would be planned for everyone to be involved including addressing the concern that the parents would flee with N.L. and that had to be done before the visits could go ahead which would be supervised at MCFD building or they could arrange with family members to supervise the visits.

K.O. wanted her mother to do the visits and R.L. had his visits supervised by his mother. [ 24 ] The safety plan was in place until September 11, 2017 when she received notice from K.O.’s counsel that she did not agree with the safety plan and that gave rise to the removal on September 11, 2015 due to protection concerns and the presentation form and Form A were filed September 15, 2017. [ 25 ] The child protection concerns were: domestic violence on July 10, 2017 between the parents in the presence of the child while they resided at [omitted for publication] together; RCMP noted that K.O. had been consuming alcohol and had struck R.L. on the head with a beer glass and scratched him and was taken to police cells overnight; R.L. had been arrested and charged with assault of K.O. in August 2016; a no contact order between the two which they breached on numerous occasions; R.L. had left with N.L. after an angry incident with his mother and the police had to look for him and K.O.; J.L. had her car tyres slashed and R.L. apparently confirmed doing the damage on Facebook; K.O. believed that R.L. was stalking her and had threatened to kill her and that he had followed her around town and she was afraid for her safety. [ 26 ] The child remained with J.L. after the formal removal.

The least disruptive measure to begin with had been the supervision order but that no longer protected the child in the circumstances. She met with K.O. at that time and provided her with support services and a referral to Haven Society for counselling. Before she transferred the file to another social worker, Ms. Belanger noted that there was ongoing conflict between K.O. and R.L.

Both parents at that time were getting one full day of parenting time each with family supervision. [ 27 ] She was asked about meeting with K.O. to discuss the child protection concerns and set up a meeting on July 14 th which had to be rescheduled to July 18 th . N.L. was not in care at the time and was living with J.L. in the home. She denied it was a de facto removal as suggested by counsel for K.O. and stated that the safety plan was designed to address protection concerns for the child and ensure the parents did not have visits unless they were supervised and not to be together for those visits.

The parents were advised to get family involved so they could work out supervised visits. [ 28 ] She was adamant that the safety plan put in place on July 13 th , 2017 was not a de facto removal and was less intrusive than a removal.

The plan was signed in the home and R.L. and his mother were present but not K.O. who had a no contact order and could not attend the home at the time. [ 29 ] She confirmed that K.O. had called her on August 9 th to advise the Crown had dropped the charges against her. [ 30 ] She also confirmed that a safety plan had been put in place and not a voluntary care agreement as K.O. had been reporting in the community. In her view, Ms. Belanger believed that K.O. had refused to sign the safety plan because she did not want N.L. removed from her. [ 31 ] Ms.

Belanger was clear in her evidence that she was led to believe by both parents and J.L. that she was the primary caregiver during the day as the parents were not at home and she would feed her and get her to and from day care and provide her bedtime routine as she slept in the upper part of the home with the grandparents.

She also disputed that K.O. had been denied visits with N.L. in early September but that visits were planned with J.L. and K.O.’s mother and she was required to confirm her visits were going ahead. [ 32 ] She confirmed that between July 10 th and 14 th N.L. was living at [omitted for publication] with R.L.’s parents and R.L. lived in the basement. The child remained in the home between July 14 th and September 11 th .

K.O. did not reside there during that period. [ 33 ] Rona-Lea Kit is a social worker and she assumed conduct of the file on September 28 th , 2017 and met with the parents the week of the transfer meeting. [ 34 ] She met separately with the parents.

She discussed with K.O. her concerns around domestic violence, her mental health issues, her anxiety and her ability to meet the day to day needs of N.L. [ 35 ] K.O. confirmed she had connected with Tillicum Lelum for a support worker and initiated contact with Haven Society and had been referred to the Stages Program and helped her connect with other services in the community. [ 36 ] K.O. had been spending an increasing amount of time with the child in her home including unsupervised time, or with the help of a support worker on Tuesdays overnight, Thursday from 2.45 to 6.30 pm and from 9 am to 3 pm on Saturdays.

She continues to meet with K.O. around the Stages Program and the progress she is making. [ 37 ] She believed that the ongoing issues around domestic violence had reduced due to the protection order in place and they are not having contact. She is also hopeful K.O. will finish the Stages Program she has embarked on.

[ 38 ] R.L. is also having time with N.L. who continues to live with her grandparents. [ 39 ] She confirmed the problems between the parents on September 27 th after the removal when they had been having contact and there had been emails and messages and phone calls and social media reporting which had led to MCFD being notified.

She believes the parents may still be having contact but there is no evidence of domestic violence as of October and November. [ 40 ] She also stated that she believed that there would be a further assessment early in the New Year around whether N.L. can return to her parents’ care and that K.O. would need to continue with the Stages Program before that assessment could be made.

THE EVIDENCE FOR K.O. [ 41 ] K.O. testified because as her counsel stated, “she is going to talk to Your Honour about the circumstances of the removal, because they vary very distinctly from what the social worker just testified to” (Transcript December 6, 2017, lines 20-23) which would go to the Charter argument. [ 42 ] Her evidence was that between July 10 th and 13 th N.L. was with her in the community as she had nowhere to stay but N.L. stayed overnight at the [omitted for publication] home. She had access to her during the day at [omitted for publication]. R.L. picked up N.L. on July 13 th .

K.O. had a scheduled appointment on July 14 th with Ms. Belanger and it was rescheduled until the 17 th but only occurred on the 18 th . At that meeting she declined to sign the safety plan as she was not involved in drawing it up, that she did not agree to N.L. being removed, that she did not want J.L. to do the primary caregiving, did not want supervised visits and wanted her daughter back. [ 43 ] She was given a photocopy of the safety plan even though she had not signed it and said she was not part of the safety plan as she had not signed and she vocalized that issue with Ms. Belanger about five times.

She could not get into court in July and August because everything was adjourned. She did not have access from July 13 th to July 29 th . [ 44 ] She was made aware by the social worker that they were still investigating the file and get back to her and R.L. when they had more information. [ 45 ] She said she had to take steps to address the issue of the removal by filing for a Writ of Habeas Corpus .

She said she had only been given supervised visits once per week and was frustrated that she had to call in to confirm her weekly visits with MCFD and that she had never signed or agreed to the safety plan or been provided with a voluntary care agreement nor been provided with presentation hearing documents. [ 46 ] She was somewhat vague about the baby care arrangements but confirmed that the paternal grandparents did have a bedroom for N.L. and that she spent time with them and there were times when K.O. did not stay home overnight due to not wanting to be there and N.L. would stay with J.L. [ 47 ] There was no other evidence on behalf of K.O.

SUBMISSIONS ON BEHALF OF K.O. RELATING TO THE CONSTITUTIONAL RELIEF SOUGHT [ 48 ] Counsel for K.O. initially clarified that R.L. had been convicted of assault against K.O. when it was disposed of by way of a

section 810 peace bond and is unaware of the length and terms of the peace bond. The second point she clarified was that at paragraph 8 of the grounds for the Notice of Constitutional Remedy the presentation hearing documents had been served on K.O. two months and not three months after N.L. had been removed. [ 49 ] The relief sought by K.O. is a stay of proceedings with respect to the apprehension of N.L. by MCFD pursuant to section 24(1) of the Charter of Rights and Freedoms . Specifically K.O.’s parental right to life, liberty and security of the person as guaranteed by

section 7 has been infringed; that she was entitled to be provided with a presentation hearing within a reasonable time pursuant to

section 11(b); that her quality rights not to be subject to gender discrimination pursuant to

section 15 have been infringed and that these violations of her Charter rights cannot be justified under

section 1 and the child ought to be returned to her care pursuant to section 24(1) of the Charter . [ 50 ] Counsel’s submissions on the constitutional argument as they relate to sections 7, 11(b), 15 and 24(1) are set out below: [ 51 ] There was what counsel purported to be a removal on July 13 th until September 14 th and a second removal was on September 14 th , 2017 giving rise to the presentation hearing and the application filed on September 15 th .

Counsel submitted that what occurred on July 13, 2017 when the safety plan was put in place, and K.O. refused to sign, amounted to a removal pursuant to the Child, Community and Services Act (CFCSA) and that the provisions of sections 31, 33.3 and 34 are peremptory namely, that the parent must be informed promptly, must attend the court for a presentation hearing no later than 7 days after the removal, and must conclude the hearing as soon as possible.

She argued that it was a de facto removal and an abuse of the legislation. [ 52 ] Citing from the safety plan, exhibit 1, the language is that it is a short term plan with the agreement of the parents and that the parent and child welfare worker agree that the immediate safety concerns have to be addressed and that the plan has been put in place or a longer term plan has been put in place but that if at any time the parents or other participants are unable or unwilling to continue their role in the safety plan, the child welfare worker needs to be notified immediately. Counsel asks the court to read into that

section that if a parent is unable or unwilling to continue their role (and in this case, refused to sign the safety plan), that the child welfare worker is required to immediately comply with sections 31, 33.3 and 34 of the CFCSA and commence a presentation hearing no later than seven days after the child was removed. [ 53 ] In a nutshell, counsel submits that by reason of her client refusing to sign the safety plan, in July 2017, a presentation hearing was triggered because the safety plan was a de facto removal and the presentation hearing should have been scheduled within seven

days. What occurred in September, 2017 when the presentation hearing was scheduled in court, which is presently before this court,according to counsel, amounted to another removal. [54] Counsel argued that the CFCSA is a quasi family, quasi administrative, and quasi criminal form of legislation as set out in NB vJ.G., [1993] 3 SCR, 46 where the court held that

section 7 rights under the Charter can extend to child protection proceedings which areboth substantive and procedural and that “The state may only relieve a parent of custody when it is necessary to protect the best interestsof the child, provided there is a fair procedure for making that determination” (paragraph 70). [55] Similarly in K.L.W. v.

Winnipeg Child and Family Services et al., 200 SCC 48 at paragraph 98, the court held that the interestsat stake in a child protection context are distinguishable from the state’s punitive purpose in a criminal context and the distinctionsshould make courts reluctant to import the criminal purpose into the child protection context. Courts should ensure no unnecessary oradditional delays should be allowed in regard to a parent’s right to a hearing. [56] As far as

section 11(

b) and delay is concerned, counsel states there has not been a case decided under the CFCSA on the issuebut that if it is of a public nature, intended to promote public order and welfare in a public sphere of activity, the same provisions shouldapply that apply to criminal and quasi-criminal proceedings (R. v. Wigglesworth, (SCC), [1987] 2 S.C.R. 541). [57] On the issue of the best interests of the child in relation to a Charter analysis, in N.B. v.

J.G., the Supreme Court of Canadaconsidered how best to assess the child’s best interests and the quality of parenting and evidence of the child’s living was found to berelevant in making that determination. [58] In the argument regarding delay pursuant to

section 11(b), counsel submitted that the court ought to consider the relevant period of unnecessary delay from July 18th (when the safety plan was put into place that the child remain in the care of her grandmother in the home where she had been residing with her parents), to September 14th when the child was removed and the Director filed thepresentation hearing documents. She explained that the lengthy delay lay at the feet of the Director. She compared that delay with thefacts and ruling in R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631 and that the presumptive ceiling was exceeded according tothe CFCSA in relation to the time it took to get the matter to court. [59] Counsel further argued that the CFCSA legislation discriminated against women in general and K.O. in particular (N.B. v. J.G.). [60] Counsel conceded that the “Supreme Court of Canada has recognized there is no opportunity for a stay of proceedings and areturn of the child because that is in -- contrary to the best interests of the child test ...” (Transcript December 6, 2017, pg. 93 lines 27-30).

But she asks this court to intervene on something as flagrant as what has happened to K.O. and that despite the ruling of the SupremeCourt that a judicial stay is not appropriate that this court should grant that relief. [61] Furthermore, counsel seeks “a declaration of wrongfulness of the MCFD” (Transcript December 6, 2017, pg.95, line 8-9). Shealso asks this court to tell the MCFD “To change the wording on their safety plan so that this never happens again to another woman anda declaration that the MCFD’s conduct has been wrongful.

At the very least, the court has those remedies” (Transcript December 6,2017, pg. 97, lines 39-43). [62] The essence of counsel’s argument is that K.O. has proved that her Charter rights have been breached and that the delay fromJuly 13, 2017 to September 14, 2017 was the result of MCFD’s flagrant disregard for the legislation and that the delay from September14, 2017 to December 6, 2017 was clearly attributable to the lack of MCFD resources and that she should be entitled to a judicial stay ofproceedings pursuant to section 24(1).

SUBMISSIONS OF COUNSEL FOR THE ATTORNEY GENERAL OF BRITISH COLUMBIA [63] In opening submissions, Counsel pointed out that the formal requirements for service and the particulars as required by

section 8of the Constitutional Questions Act, RSBC 1996 c68 were not met but the AGBC was still prepared to deal with the matter on December6, 2017. [64] Furthermore, there has been no breach of K.O.’s Charter rights because the delay between the removal and presentation hearingwas reasonable and outside the Director’s control. Furthermore,

section 24 of the Charter would not be the appropriate remedy due to theconcerns around the child’s safety and that it is the CFCSA which prevails and not the Charter. [65] The primary submission by the AGBC is that this court lacks jurisdiction to make the order sought, granting a stay of theCFCSA proceedings (Jewish Family and Child Service of Toronto v.

J.Z., 2014 ONCJ 119) as a stay would place the rights of the parentover the best interests, rights and well-being of the child to be protected from harm as the stay would automatically return the child to theparent before a determination of the merits whether the child is at risk (paragraph 208). Those principles confirm the Supreme Court ofCanada’s position in N.B. (Min of Health) v.

G.(J.) 3 S.C.R. 46 at paragraph 101 that a stay of proceedings would be inappropriate as itwould result in the children being returned to the custody of the parent from whom they were removed and that would be contrary to theintent of child protection legislation. [66] Counsel submits that there is no remedy to return a child and no authority to make a declaration either. In Joyce v. Director ofChild, Family and Community Service, BCPC, Quesnel Registry No. 16338 (February 16, 2016), the court concluded that the ProvincialCourt has no prerogative power to grant declaratory judgments (paragraph 23).

Specifically, at paragraph 26 the court stated “theProvincial Court has no jurisdiction to grant the remedy sought by Ms. Ward, namely a declaratory judgment that her

section 7 Charterrights were breached by virtue of the fact that a contested presentation hearing was not held within two weeks of the removal of thechild”. [67] The court should not consider substantive issues raised or make findings either. The Supreme Court of Canada in Phillips v.Nova Scotia (Westray Mine Inquiry) (SCC), [1995] 2 SCR 97 referring to its own earlier decision in Attorney General ofQuebec v. Cumming (SCC), [1978] 2 SCR 605 said courts should not express an opinion on a question of law which is

not necessary to decide the case especially when it is a constitutional question nor should it make any findings or constitutionalpronouncements as “unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not beenforeseen”(Joyce v. Director of Child, Family and Community Service paragraph 24-25). [68] The further submission of the AGBC is that there have not been breaches of K.O.’s sections 7, 11 and 15 Charter rights. [69] Due to the lack of evidence, the lack of jurisdiction and precision regarding K.O’s rights under

section 15 that she has beendiscriminated against because of her gender, counsel submits that there is no declaration available. [70] In the context of

section 11, counsel argues that K.O.’s matter does not fall within the definition of what offences or matters arecovered by

section 11 as the CFCSA proceeding is not a criminal or penal matter as defined by R. v. Wiggleworth, (SCC), [1987] 2 SCR 541 where the Supreme Court of Canada stated at 69 that “the rights guaranteed by

section 11 of the Charter areavailable to persons prosecuted by the State for public offences involving punitive sanctions, i.e. criminal, quasi-criminal and regulatoryoffences, either federally or provincially enacted”. These cases are distinguished from private, domestic or disciplinary matters which areregulatory, protective or corrective to maintain discipline, professional integrity and professional standards. In certain instances thesecases may fall within

section 11 if they attract a true penal consequence such as an imprisonment or a fine (pgs 560-561). [71] Furthermore, this is not a case which invokes the guidelines set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC27 , [2016] 1 S.C.R. 631 because those criteria regarding delay apply within the criminal context and not child protectionlegislation. [72] Regarding,

section 7, counsel submits that in this case the child was not removed in a manner which was inconsistent with theprinciples of fundamental justice because she was initially dealt with according to a safety plan as the least intrusive measure and it wasonly after K.O. indicated she did not agree with the terms safety plan that the child was removed and a presentation hearing scheduledwithin seven days. Accordingly, there was no breach.

Even if there was a breach, there is no jurisdiction and no remedy. [73] Any delay between September, 2017 and December 6, 2017 was the result of trying to accommodate the unexpected graveillness of Director’s counsel with conduct of the file by appointing ad hoc counsel, and getting a date which worked for all counsel.

Onone earlier date in November, 2017 which worked for counsel, did not work for the father, R.L. so the matter had to be adjourned toDecember 6, 2017. [74] Counsel’s further submission was that the decision referred to by counsel for K.O. that the Provincial Court has authority togrant relief, namely British Columbia (Director of Child, Family and Community Services) v.

K.C., is not authority for that propositionas the court acknowledged that the return of the child was not an appropriate remedy even if there had been a Charter breach but thejudge presiding said he did not believe he had jurisdiction to make a formal declaration at paragraph 356. [75] Counsel also drew the court’s attention to the definition of “remove” meaning to take a child into the care of a director undersection 30, 36 or 42 and is silent on whether a safety plan is a removal and the court should find that the actual removal of the childunder the CFCSA was on September 11, 2017 and not July 14, 2017 when least disruptive measures were put in place through the safetyplan and the child remained in her home under the care of the grandparents who lived there and had been active caregivers since herbirth. [76] In response, counsel for K.O. submitted that this is a quasi-criminal proceeding because there is a verdict, there is a fine andthere is an imprisonment for her client so this removal does fall under

section 7. [77] She seeks a judicial stay for the period from July to September and September to December to be looked at separately and that“I say to the court in no uncertain terms the Provincial Court has

section 24 authority to enter a stay of proceedings, but it would be thefirst occasion in this case if Your Honour were to grant that” (Transcript January 23, 2018, pg 60 lines 28-32).

The first period from Julyto September amounted to a breach of the principles of fundamental justice and the second period from September to December was abreach due to delay. [78] On the issues relating to the presentation hearing counsel for the Director and the father submitted that the court ought to acceptthe Director’s evidence and grant interim custody to the Director and adjourn the matter to a date within forty five days for thecommencement of the protection hearing.

Where there is a difference in the evidence of the Director and the mother, the court has astatutorily bound to accept the evidence of the Director as to whether the child is in need of protection at the presentation hearing stage. [79] The evidence of the social workers was that the child was not removed but a safety plan was put in place as the least intrusivemeasure and the child was left in the same home where she had always resided and was in the care of her paternal grandparents who hadplayed a significant role in her upbringing to that date and the parents were given supervised access due to the ongoing and seriousdomestic violence concerns relating to both of them. [80] Furthermore, according to counsel for the Director there is nothing in the legislation or the safety plan which provides that asignature is required of both parents or all parties involved in the safety plan.

Counsel submits that K.O. did not take issue with the factsof the intervention when the safety plan was put in place nor did she contest the facts of the removal in September, so the Director hasmet the burden of proof pursuant to

section 35 and that the child ought to be in the interim care of the Director and adjourn to a datewithin 45 days for the commencement of the protection hearing. ANALYSIS AND FINDING [81] The issues are:

a) has the Director provided evidence relating to the presentation hearing that:

i) the removal was justifiedbecause there were reasonable grounds to believe the child needed protection and there were no less disruptive measures available and,ii) the disputed evidence must be resolved in favour of the Director, on the balance of probabilities (Re: B.(S.), [1998] B.C.J. No. 2553(QL)(Prov. Ct) if there is no independent evidence to support either the Director or the parent (Re: M.(S.), [1998] B.C.J. No. 2204(QL)(Prov. Ct.);

b) was there a breach of K.O.’s Charter Rights pursuant to sections 7, 11 and 15 allowing for a stay of proceedings

pursuant to

section 24;

c) does this court have the jurisdiction to make the order sought by K.O. for a stay of proceedings. [ 82 ] Dealing first the presentation hearing, the court accepts the evidence of the two social workers relating to the removal of N.L. in September, 2017 due to ongoing protection concerns and the fact that K.O.’s counsel indicated that she did not want to follow the safety plan.

Their evidence also indicates that while she may have not signed the plan she had participated according to it as she was given supervised access from July to September. [ 83 ] K.O. did not contest the evidence of the social workers around the events which led to MCFD intervention in July 2017. There had been similar concerns around parental conflict and violence in 2016 when MCFD intervened for N.L.’s protection.

Her evidence centered on how she believed her Charter rights had been infringed due to delay and the Director’s actions. [ 84 ] K.O. believed that N.L. had been removed in July 2017 when the safety plan was put in place. The evidence of the social workers is that this plan was the least disruptive measure at the time as N.L. would remain with her grandparents in the home where she had been living and that her best interests were protected by having both parents have their visits supervised and at different times.

The CFCSA provides that the social workers have to explore less disruptive measures before removal and that is what they did by leaving N.L. with her grandparents who had been doing much of the parenting while her parents were at work or out of the home. [ 85 ] It was only after K.O. advised the Director that she did not wish to wish to be part of the safety plan, that N.L. was removed in September. [ 86 ] On the evidence, the court accepts and finds that the CFCSA intervention in July 2017 when the safety plan was drawn up, did not amount to a removal, either de facto or de jure . [ 87 ] On the issue of the removal in September, there is no doubt that N.L. was removed at that time and the matter proceeded to court within the time limit.

Both parents were notified as they should have been. The social workers’ evidence was that there were reports coming from the community and the police and Facebook that the parents were in contact with each other when they ought not to have been according to a no contact order made by the police, and that there were fears that the parents would flee with N.L. The ongoing concerns were the domestic violence between the parents which had not yet been adequately addressed and concerns for the child’s safety led them to remove her.

That evidence was reliable and credible and the Director has established on the balance of probabilities that there should be an order for interim custody of N.L. to the Director and adjourned to March 16 th , 2018 for the nominal commencement of the protection hearing. [ 88 ] Of note, K.O. has been complying with the recommendations that she attend the Stages Program and is making positive progress.

Furthermore, the child has been spending time with her each week, on an unsupervised and supervised basis, while she works to address the underlying concerns around domestic violence and conflict with R.L., who is also having access to N.L. in his parents’ home. The parents are no longer together and the Director’s protection concerns are currently being addressed due to this fact but there needs to be a longer period of stability between the parents before the Director ends its involvement. [ 89 ] The second issue is whether K.O.’s Charter rights were breached.

On the totality of the evidence and the facts the evidence and submissions by counsel for K.O. does not persuade the court that her rights according to sections 7, 11 and 15 were infringed. There was no abuse of the legislation relating to the safety plan put in place in July 2017 and in fact, the social workers have an obligation to find a less disruptive measure before considering a removal under the legislation and that is what they did first.

It was due to K.O.’s own decision not to continue to adhere to the safety plan that gave rise to the need for a removal in September, 2017, and the ongoing protection concerns around the behaviour of both parents. [ 90 ] The court cannot and will not read into the language of the safety plan if a parent is unwilling or unable to continue their role in the safety plan, that it triggers a formal removal and presentation hearing. [ 91 ] The period from July 2017 to September 2017 was intended to protect the child under the terms of the safety plan and help the parents to work on their issues and resolve their domestic violence difficulties.

When that did not work and K.O. said she was unwilling to comply with the safety plan, the removal occurred. There was no delay under the legislation between July and September, 2017 and K.O. has not persuaded the court that there was. [ 92 ] The delay from September to December, 2017 was the result of numerous factors including the father not being available on one of the days offered. Furthermore, the Director cannot be blamed for delay when there are difficulties in meeting the schedules of all counsel and parties and witnesses.

In this instance, Director’s counsel with conduct of the file was gravely ill and the remaining local Director’s counsel had to do the best she could on her own in either taking conduct of the file herself or getting ad hoc counsel which was done. There was no unnecessary delay until December 6 th and any delays since then have been due to court scheduling for a continuation and the reasons being sent to counsel. [ 93 ] In any event, this is not a matter where delay under the Charter would apply due to the nature of the proceedings, CFCSA , not being a criminal or penal matter as referred to in R. v.

Wigglesworth . [ 94 ] As far as

section 15 is concerned, K.O. has said that she is being discriminated against, by having her child removed under the CFCSA , because she is a female. There is absolutely no evidence before the court that this removal was in any way discriminatory against K.O. The child was removed from both mother and father and no special treatment was given to R.L. over K.O. [ 95 ] The evidence of K.O. does not amount to proof of a Charter breach of sections 7, 11 or 15 . [ 96 ] The final issue is whether this court has jurisdiction to entertain a judicial stay of proceedings due to breaches of the Charter .

Even if there had been a breach or breaches proved on the evidence, it is my finding that this court does not have the jurisdiction to grant a judicial stay in any event. [ 97 ] The case law specifically stresses that the Provincial Court does not have jurisdiction to deal with a stay as it would

automatically return the child to the parent before a determination on the merits and may not be in the child’s best interests (Jewish Family and Child Service of Toronto v. J.Z.; N.B.(Min of Health) v. G.(J.) 3 SCR 46 ). [ 98 ] The court does not have any prerogative power to grant declaratory judgments (Joyce v. Director of Child, Family and Community Service) nor should the court express an opinion on a question of law which is not necessary to decide the issues before it (Phillips v. Nova Scotia (Westray Miner Inquiry; Joyce v.

Director of Child, Family and Community Service). [ 99 ] Accordingly, the application by K.O. for a constitutional remedy is denied. [ 100 ] The evidence of the Director, relating to the removal of the child in September, 2017, in which R.L. took no position, satisfies the test set out in the CFCSA relating to the removal of the child. FINDING [ 101 ] The court orders that the child N.L. is to be in the interim custody of the Director. [ 102 ] The protection hearing is adjourned to March 9 th for nominal commencement.

Dated at Nanaimo this 28 th day of February, 2018 __________________________________________ THE HONOURABLE JUDGE J.E.SAUNDERS (PCJ) CORRIGENDUM - Released on April 4, 2018. In the Ruling of the Honourable Judge J.E. Saunders dated February 28, 2018, changes have been made as set out below: [1] Paragraph [7] has been amended to correct the name of Mr. S’s to R.L.’s and will now read as follows: [7] The parents resided with the child, N.L., in the basement suite of R.L.’s parents’ home, namely, J.L. and G.L., in Nanaimo.

Due to concerns about the behaviour of the parents in the home, the Director filed a presentation form on July 18, 2016 and an uncontested order was made on July 29, 2016 that the child remain in the care of the parents pursuant to

section 33.2 under the supervision of the Director including, amongst other terms, a term that the parents were not to be together in the presence of the child unless supervised and not to expose the child to physical and verbal conflict and was adjourned to August 29, 2016 for protection hearing. [2] Paragraphs 23, 30, 31 and 42 have been amended to correct the spelling of Ms. Boulanger to Ms.

Belanger and will now read as follows: [23] She met with K.O. soon after and explained that either the safety plan would have to be put in place or N.L. would be removed but she did not want to sign because she had to wait for her visits which needed to be supervised. Ms. Belanger explained that a family meeting would be planned for everyone to be involved including addressing the concern that the parents would flee with N.L. and that had to be done before the visits could go ahead which would be supervised at MCFD building or they could arrange with family members to supervise the visits.

K.O. wanted her mother to do the visits and R.L. had his visits supervised by his mother. [30] S She also confirmed that a safety plan had been put in place and not a voluntary care agreement as K.O. had been reporting in the community. In her view, Ms. Belanger believed that K.O. had refused to sign the safety plan because she did not want N.L. removed from her. [31] Ms.

Belanger was clear in her evidence that she was led to believe by both parents and J.L. that she was the primary caregiver during the day as the parents were not at home and she would feed her and get her to and from day care and provide her bedtime routine as she slept in the upper part of the home with the grandparents.

She also disputed that K.O. had been denied visits with N.L. in early September but that visits were planned with J.L. and K.O.’s mother and she was required to confirm her visits were going ahead. [42] Her evidence was that between July 10 th and 13 th N.L. was with her in the community as she had nowhere to stay but N.L. stayed overnight at the [omitted for publication] home. She had access to her during the day at [omitted for publication]. R.L. picked up N.L. on July 13 th . K.O. had a scheduled appointment on July 14 th with Ms. Belanger and it was rescheduled until the 17 th but only occurred on the 18 th .

At that meeting she declined to sign the safety plan as she was not involved in drawing it up, that she did not agree to N.L. being removed, that she did not want J.L. to do the primary caregiving, did not want supervised visits and wanted her daughter back. [3] The heading “SUBMISSIONS ON BEHALF OF MS. O RELATING TO THE CONSTITUTIONAL RELIEF SOUGHT” be amended to read: “ SUBMISSIONS ON BEHALF OF K.O. RELATING TO THE CONSTITUTIONAL RELIEF SOUGHT ” [4] Paragraph 69 has been amended to replace the name “Mr.

O” with “K.O.” and will now read as follows: [69] Due to the lack of evidence, the lack of jurisdiction and precision regarding K.O’s rights under

section 15 that she has been discriminated against because of her gender, counsel submits that there is no declaration available. [5] Paragraph 89 be amended by removing the word “be” and will now read as follows: [89] The second issue is whether K.O.’s Charter rights were breached. On the totality of the evidence and the facts the evidence and submissions by counsel for K.O. does not persuade the court that her rights according to sections 7, 11 and 15 were infringed.

There was no abuse of the legislation relating to the safety plan put in place in July 2017 and in fact, the social workers have an obligation to find a less disruptive measure before considering a removal under the legislation and that is what they did first. It was due to K.O.’s own

decision not to continue to adhere to the safety plan that gave rise to the need for a removal in September, 2017, and the ongoing protection concerns around the behaviour of both parents. [6] After the heading “FINDING”, the unnumbered paragraphs will be numbered as paragraph [101] and [102] set out as follows: [101] The court orders that the child N.L. is to be in the interim custody of the Director. [102] The protection hearing is adjourned to March 9 th for nominal commencement.