DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2023 BCPC 105

Citation: British Columbia (Director of Child, Family, and Community Services) v. D.C.H. and K.E.V. 2023 BCPC 105 Date: 20230519 File No: [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: A.G.H. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.C.H. and K.E.V. PARENTS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Director: J. Monier-Williams Appearing in person: Ms. V.

Place of Hearing: [omitted for publication], B.C. Dates of Hearing: January 16, March 16, 2023 Date of Judgment: May 19, 2023

The Issue [ 1 ] These reasons arise from a “presentation hearing” conducted under the authority of

section 35 of the Child, Family & Community Service Act RSBC 1996, c 46 (“the CFCSA ”). The Director of Child, Family & Community Services (“the Director”) applies for an order that A.G.H., who will celebrate her second birthday at the end of May, remain in the care of the Director until a protection hearing can be held under the authority of

section 40 of the CFCSA . Ms. V., A.G.H.’s mother, opposes the application and asks that I order that A.G.H. be immediately returned to her care. Mr. H., A.G.H.’s father, took no

part in the proceedings. [ 2 ] A.G.H. was removed from Ms. V.’s care by the Director on October 19, 2022. [ 3 ] Mr. Monier-Williams, for the Director, points out that the issue on this application is not whether A.G.H. is in need of protection - that is the issue to be adjudicated at a protection hearing – but rather whether she should be returned to her mother’s care pending the protection hearing.

The nature of the decision which I must make was described by my colleague, the Honourable Judge Barrett, in the following terms (underlining added): A Presentation Hearing is intended to be a hearing that ensures the removal of a child is not arbitrary and that an order is made to ensure the appropriate care for a child pending a more substantive hearing. At a Presentation Hearing, the Court is not required to assess credibility of the evidence or actually find that a child needs protection.

Any conflicts in the evidence are resolved in favour of the Director at this stage of the proceeding unless that evidence can be shown to be "manifestly wrong, untrue or unlikely to have occurred." ( BB v. British Columbia (Director of Child, Family and Community Services ), 2005 BCCA 46 ). The burden on the Director is merely to provide " admissible evidence which, if accepted, could lead to a finding that the child is in need of protection". British Columbia (Child & Family Services) v.

K.E. [2022] BCJ No. 2598 ; 2022 BCPC 303 @ paragraph 15 The phrase “admissible evidence” means something different in the context of a presentation hearing than it does in most court proceedings. Hearsay evidence may be admissible at a presentation hearing. However, double hearsay and hearsay from anonymous or unidentified sources are not: British Columbia (Child & Family Services) v. K.S. [2020] BCJ No.785 ; 2020 BCPC 97 @ paragraph 10. [ 4 ] The challenge in this case is that most of the information upon which the Director relies consists of double hearsay or hearsay from anonymous sources.

I raised that issue with Mr. Monier-Williams during the hearing, but he expressed himself to be content with the “evidence” which he tendered. The Director’s Allegations [ 5 ] Section 35(1) of the CFCSA provides: At a presentation hearing relating to the removal of a child under

section 30, the director must present to the court a written report that includes (

a) the circumstances that caused the director to remove the child, (

b) an interim plan of care for the child, including, in the case of an Indigenous child, the steps to be taken to support the child to learn about and practise the child's Indigenous traditions, customs and language and to belong to the child's Indigenous community, and (

c) information about any less disruptive measures considered by the director before removing the child. [ 6 ] The report presented by the Director in this case makes the following material assertions: Since the birth of … A.G.H. … , the Director has received thirteen (13) reports related to concerns with the safety of [Ms. V.’s] home, substance abuse, mental health, domestic violence and [Ms. V.] allowing unsafe individuals around A.G.H. … * * * On August 1, 2022, the Director received a report regarding concerns that [Ms.

V.] has been using illicit substances. * * * On August 15, 2022, the Director received a further report that [Ms. V.] had returned home intoxicated with A.G.H. and that she had resumed a relationship with an unsafe individual. * * * On September 8, 2022, the Director received a report that [A.G.H.’s father] had been attending [Ms. V.’s] residence against the terms of an existing supervision order. The report also included concerns around the safety of [Ms. V.’s] home, stating that there were cigarette butts on the floor, dirty diapers, and rotting food, and that it was unsafe for A.G.H. to crawl around in.

A home visit was completed and the report regarding the state of [Ms. V.’s] home was substantiated.

None of the individuals who made these reports to the Director were identified at the hearing before me. The information provided to me did not disclose whether those individuals had personal knowledge of the information which they provided to the Director. The assertions which they made to the Director may or may not have been based on information provided to them by others. The person or persons who conducted the “home visit” were not identified at the hearing before me. All of these “reports” are anonymous hearsay.

Each of them may be double or triple hearsay. [ 7 ] The Director’s report also makes the following allegation. On October 18, 2022, the Director received a report from police that [Ms. V.] had been involved in a dispute with [A.G.H.’s father], and that she had perpetrated an assault on an unknown individual. On October 19, 2022, the Director received further information that [Ms. V.] had been charged with assault with a weapon against another unknown individual on October 14, 2022, and was the subject of an assault complaint on September 17, 2022. The Evidence [ 8 ] Ms.

V. acknowledges that she has been charged with assault, arising from an incident which occurred on a [omitted for publication] street corner on October 14, 2022. She is awaiting trial on that charge. She says that she and A.G.H. were standing on the sidewalk, waiting to cross the street. Her attention was diverted from A.G.H. for a few moments. When she looked back at A.G.H., a man whom she did not know was offering A.G.H. a bite from his half-eaten hamburger. She struck the man in the face. She explains that A.G.H. has food allergies and that she reacted instinctively to repel the man. [ 9 ] Ms.

V. acknowledges that she engaged in an argument with A.G.H.’s father at a bus stop on October 18, 2022. Documents from the file of the [omitted for publication] Police Department indicate that the police received a telephone call from someone who said that she had witnessed the argument and that Ms. V. had punched A.G.H.’s father. The police have been unable to identify or interview the caller. Ms. V. says that she did not strike A.G.H.’s father. She says that, in frustration, she struck the sign at the bus stop. No charges have been laid as a result of this incident. Ms.

Orentes Duran, the social worker with conduct of A.G.H.’S file, says that this incident was the triggering event which caused the Director to remove A.G.H. from her mother’s care. [ 10 ] Ms. Orentes Duran, says that, on more than one occasion, when interviewed by social workers, Ms. V. has lost her temper and shouted at the social workers. Ms. Orentes Duran has personally witnessed that behaviour. [ 11 ] As noted in paragraph 6, above, there is no evidence at all to support the other concerns articulated in the Director’s report to the court. The author of the report to the court was not identified.

The evidence does not disclose the basis for that person’s “concerns”. For example, the evidence does not disclose whether that person had personal knowledge of Ms. V.’s substance use or housekeeping practices. Discussion [ 12 ] Only three of the allegations in the Director’s report to court are supported by any evidence. They are: (

i) the assault on the street corner, which Ms. V. admits; (ii) the argument at the bus stop, which Ms. V. admits, although she denies striking A.G.H.’s father; and (iii) shouting at social workers during meetings, at which Ms. Orentes Duran was present. It is to be noted that A,G.H. was present at the first of these events, but not at the second or third. [ 13 ] The question at a presentation hearing is whether the Director has provided admissible evidence which, if accepted, could lead to a conclusion that a child is in need of protection. Put another way, the question is whether the Director has provided admissible evidence that one of more of the circumstances enumerated in

section 13 of the CFCSA pertains. The only two such circumstances for which the evidence in this case provides any support are subsections 13(1) (

a) and 13(1) (e); i.e. whether the evidence is capable of supporting a conclusion that A.G.H. is in need of protection because of Ms. V.’s propensity for loud arguments, accompanied in one case by violence. [ 14 ] In considering that question, it is important to note that Ms. V.’s wrath was not directed toward A.G.H. in any of the three incidents of which there is evidence. During the first incident, Ms. V. was attempting to protect A.G.H. from advances by a strange man. Ms. V. may or may not have gone too far, but A.G.H. was not at risk.

A.G.H. was not present during the second or third incidents. [ 15 ] There may be cases in which a parent’s pattern of behaviour indicates a lack of self-control which may pose a risk to children in that parents’ care. However, the evidence in this case does not rise to that level. Disposition [ 16 ] I am required to make one of the orders described in

section 35 of the CFCSA . I do not think that I should order A.G.H. to remain in the custody of the Director because the Director has not led evidence sufficient to discharge the Director’s onus, as described in paragraph 3. I do not think that I should simply order the Director to return A.G.H. to Ms. V.’s care. I am concerned by Ms. V.’s presentation in the courtroom and by the nature of the allegations against her. In the circumstances, the best I can do is to order that AG.H. be returned to Ms. V.’s care under the supervision of the Director.

If the parties are unable to agree on the terms of supervision, they are at liberty to apply. _____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia