West Region Child v. Family Services,, 2020 MBPC 32

WRCFS v. R.V.S. and D.D.T. 2020 MBPC 32 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE IN THE MATTER OF: The Child and Family Services Act AND IN THE MATTER OF: D.D.S., born […], 2020 BETWEEN: West Region Child and Family Services, ) ) Brianna Bogucki and Stacey Soldier Petitioner ) ) for the Petitioner - and - ) ) R.V.S. and D.D.T. Respondents ) ) Karen Webb for R.V.S. Michael Davids for D.D.T. - and - D.T.

Guardianship Applicant ) ) ) ) ) ) Sarah McNamara for D.T. ) Reasons for Decision Delivered: ) July 23, 2020 RESTRICTION ON PUBLICATION: Please note that s.75(2) of the Child and Family Services Act provides that no press, radio or television report of this proceeding shall disclose the name of any person involved in the proceeding as a party or witness or disclose any information likely to identify any such person. BAYLY, P.J.

WATSON APPLICATION [ 1 ] This case examines what minimum grounds are required of a state agent necessary to justify the most profound intrusion into the life of a parent, the warrantless apprehension of a child.

BACKGROUND [ 2 ] On June 27, 2016 the West Region Child and Family Services (hereinafter referred to as the Agency) became involved in lives of the Respondents after having received an anonymous tip that the mother R.V.S. (who was at the time 20 years old) and the father D.D.T. (who was 24 years old) had taken their only child, R. who was 3 months old (at the time) for a ride on a motorcycle. [ 3 ] This is an allegation that, despite a full RCMP investigation, never resulted in a Criminal Code conviction for either parent. It is also an allegation that the mother denies in her sworn affidavit before this Court.

It is an allegation however that has resulted in 5 years worth of Agency involvement with the Respondents family and it is an allegation that has served as justification (at least in part) for the apprehension of all three of the couple’s children over the last five years. [ 4 ] The Respondents second child, J., was apprehended on May 15, 2017.

The Agency apprehended J. at birth , citing ongoing child protection concerns; in particular the Agency said they were concerned that R.V.S. had failed to complete any of the objectives of her case plan, including counseling, she had also failed to secure stable housing and she continued to pursue a domestic relationship with the father of her two children, D.D.T. [ 5 ] The Agency’s most recent involvement, and the subject of this litigation, occurred on March 23, 2020 when the Agency apprehended the Respondents’ third child D.D.S.

In their materials filed with the Court, the Agency stated that their reason for apprehension was concern over both parent’s issues with substance abuse, alcohol use, a lack of parenting ability and mental health issues as well as D.D.T.’s involvement with the criminal justice system. Despite these initial pleadings, after hearing the evidence, none of these concerns applied to R.V.S. D.D.S. was only two days old when he was apprehended by the Agency. [ 6 ] Of concern, is the abject failure of the Agency to facilitate any contact between D.D.S. and his mother since the date of apprehension.

Compounding this tragedy, is the fact that D.D.S. has been permitted no contact with his father or either of his siblings since his birth.

The Agency has relied on the Covid19 pandemic as their rationale for not facilitating contact between parent and the child D.D.S. [ 7 ] On June 4, 2020, some 73 days after D.D.S.’s apprehension, Counsel for R.V.S. brought this application, colloquially known as a ‘Watson’ Application which challenges D.D.S.’s apprehension on the basis that the Agency did not have reasonable and probable grounds to believe D.D.S. was in need of protection. [ 8 ] That application was heard on July 10, 2020. This is the Court’s decision on that Application.

ISSUE [ 9 ] The issue to be decided is quite straightforward - did the West Region Child and Family Services have reasonable and probable grounds to believe that D.D.S. was in need of protection on March 23, 2020, the day he was apprehended from his mother in hospital? [ 10 ] In order to be in ‘need of protection’ the law requires that there be evidence that there was a risk of serious harm to D.D.S. at the time of apprehension. [ 11 ] The standard of reasonable and probable grounds to apprehend is analogous to the Criminal Code requirement that police need reasonable and probable grounds to arrest an individual for a specific crime, which has both a subjective and an objective component. [ 12 ] So the question to be answered is as follows: Did the Agency subjectively believe on reasonable and probable grounds that D.D.S. was at risk of serious harm if he were to remain in the care of his mother?

And if so, whether that belief is justifiable from an objective point of view?

THE LAW [13] The law was set out succinctly in the Agency’s brief and it is not disputed. The Agency relied on three cases, the SupremeCourts decision in Winnipeg Child and Family Services v. K.L.W. 2000 SCC 48 , [2000] 2 S.C.R. 519, the MBCA decision inChild and Family Services of Western Manitoba v. KB, 2006 MBCA 82 as well as a decision of the MBQB in Child and FamilyServices of Western Manitoba v.

A.J.A. 2018 MBQB 187. [14] Section 21(1) of the CFS Act provides that The Agency, who on reasonable and probable grounds believes that a child is in needof protection, may apprehend the child without a warrant and take the child to a place of safety. [15] Parents have the right to challenge an apprehension on the basis that the Agency did not have reasonable grounds to believe thatthe child was in need of protection. [16] Turning to the evidence at the hearing. THE EVIDENCE OF LAUREEN COTE [17] Ms.

Cote was the principle witness for the Agency, the purpose of her testimony was to establish the grounds for theapprehension of D.D.S. Ms. Cote impressed the Court as a dedicated worker with the West Region Child and Family Services. Sheclearly cares about her job and cares deeply for the children in Agency care. She testified honestly and directly and her credibility wasnot impugned, whatsoever. [18] Ms. Cote testified that she learned of R.V.S.’s pregnancy when she was either 7 or 7½ months pregnant. Prior to the plannedapprehension of D.D.S., Ms.

Cote confirmed that the Respondents were having bi-weekly visits with their two older children (R. and J.). These visits occurred at the CFS building and Ms. Cote would often drop in to see the kids as well. At a minimum, Ms. Cote would seeeither R.V.S. and/or D.D.T. at least once per month prior to the apprehension of D.D.S. This level of contact, suggests to me that had theAgency wished, they could have made a collaborative effort to alleviate any protection concerns, short of apprehension.

The evidencebefore me was that no such attempts were made. [19] When asked about the Respondents progress with the Agency’s case plan, R.V.S. was described as doing quite well, but thatthere was concern with D.D.T. not showing up for drug testing, sexual offender counselling and him still being involved in criminalactivity. [20] From the evidence adduced at the hearing, it was the Court’s impression that the central component of R.V.S.’s case plan wasthe counselling component.

Through the evidence presented in Court, the purpose of the counselling, despite representations made bythe Agency in their written materials, was not related to issues of mental health or to develop particular parenting skills, according to Ms.Cote the purpose of the counseling was to give R.V.S. her own voice.

This was because it was the Agency impression that she was afollower, and desired outcome of the counseling was to enable her to participate more fully in meetings with Agency workers. [21] I find as a fact that the information available to the Agency leading up to and at the time of apprehension was that R.V.S. wascomplying with counseling component of her case plan.

The apprehending worker knew that R.V.S. was attending meetings with hercounsellors regularly, she was participating in the sessions, and she was progressing at an acceptable rate and the Agency knew thatR.V.S. herself found value in attending counselling. [22] While R.V.S. was expected to comply with drug testing, Ms. Cote candidly agreed, and I find as a fact, that the Agency did notbelieve and does not believe that R.V.S. has a drug problem.

Similarly, as far as alcohol is concerned, while R.V.S. may consumealcohol from time to time, I find a fact that there is no evidence upon which the Agency could reasonably believe that she was addicted toalcohol or that she regularly drank to excess. [23] Ms. Cote testified that the Agency held the view, prior to the apprehension of D.D.S., that R.V.S. “is a good parent, she couldparent by herself, that D.D.T. was the one that has the issues.” When asked point blank “what are the concerns that Agency had withR.V.S.’s parenting?” Ms.

Cote responded in direct examination “we don’t really have too many concerns with R.V.S., it’s just that shecontinues to stay with D.D.T.” Accordingly, I find as fact that at the time of D.D.S.’s apprehension the Agency had no concern withR.V.S.’s ability to parent D.D.S., to the contrary, they were of the view at the time of apprehension that R.V.S. was a good parent.

[ 24 ] Ms. Cote was clear in her evidence that the Agency’s child protection concern for D.D.S., at the time of apprehension, revolved around D.D.T., his failure to make progress with the Agency’s case plan for him and in particular the reports of him being violent in the community against members of his family. D.D.T., while present at the Watson hearing, did not provide any affidavit or viva voce evidence in response to the Agency’s narrative.

I therefore find as fact that D.D.T. is violent in the community, that he does abuse alcohol and drugs and that he has not complied with the Agency’s case plan. [ 25 ] Ms. Cote went on to articulate the Agency’s concern this way, she said “if he (D.D.T.) is going to do that (fight and assault adult family members), he might attack R.V.S. at some point, we didn’t know what to expect”. Despite this fear, when Ms. Cote was asked by Agency counsel, if the Agency had any knowledge of domestic violence as between R.V.S. and D.D.T., Ms.

Cote acknowledged that as far as the Agency was aware there had not been any violence between the parents. [ 26 ] I find as fact therefore that it was the lack of progress made by D.D.T. that resulted in the decision to apprehend D.D.S., the Agency was concerned that, his very presence in the home, made the home unsafe for a young child to be in, due primarily to his unpredictable behaviour when he consumed drugs and alcohol. [ 27 ] On cross examination, Ms. Cote was asked by Ms. Webb “if D.D.S. was returned to the care of R.V.S., what is the risk of serious harm that he faces?” Ms.

Cote responded after citing D.D.T.’s reputation for violence in the community of Gambler “I don’t know, I am not going to put a child at risk.” [ 28 ] I find as a fact , that at the time of D.D.S.’s apprehension, the Agency did not have any specific safety concern for D.D.S., rather they were concerned generally with the potential for violence in the home, this was a non-emergency situation. [ 29 ] I also find as fact that this concern of violence was based on reputation evidence and was not based on anything that the apprehending worker or Agency personally observed or had personally been told.

From an objective perspective, it is worth noting that D.D.T. has never been convicted of harming a child, let alone an infant child. But as I understood the Agency concern, they were also concerned with harm occasioned from witnessing violence in the home. With that in mind, while D.D.T. has a number of violent convictions on his record, there was no evidence from the Agency that they (at the time of apprehension or since) were aware that he had been convicted of domestic violence and there was no evidence that he had ever physically or emotionally abused R.V.S.

THE EVIDENCE OF R.V.S. [ 30 ] R.V.S. testified on this application. The purpose of her testimony was to explain why it was her intention to co-parent with D.D.T. R.V.S. was an equally credible witness. She testified in a straightforward and frank manner. Contrary to the Agency’s narrative of her, R.V.S. did not strike me as a person, who was a passive, submissive or without a ‘voice’. To the contrary, from what I saw, she was very much able to state and advance her position, even during a skilled cross examination. When she disagreed with something put to her, she did not hesitate to say so.

She was depicted by Ms. Cote, as someone who the Agency believed would be unable to stand up for her self or for her child D.D.S. if D.D.T.’s behaviour became ‘unpredictable’ in the home.

This was not my impression, to the contrary, she did not strike me as someone who would allow anyone, and D.D.T. included, to abuse her or her children. [ 31 ] In her direct evidence, R.V.S. explained that the reason she intends to co-parent with D.D.T. is because, since the passing of her father, D.D.T. has become, what she described as being a very big support for her, she trusts him, and has no concerns for her safety even when he consumes alcohol. She explained that the reason for this was that in the past she has told him not to do those things around her and he has respected those wishes.

R.V.S. also testified that D.D.T. helped her by teaching her a lot about being a parent, she indicated that D.D.T. assisted her, when her own mother could or would not. [ 32 ] R.V.S. was cross examined at length by Agency Counsel the purpose of which to impeach her on portions of her affidavit and to demonstrate that she had not complied as fully as she could have with her case plan, and to demonstrate that R.V.S. wasn’t the calming influence that she thought herself to be on D.D.T.’s behaviour in the community. [ 33 ] While Ms. Soldier made a number of good points in her examination of R.V.S.

The fact remains, that the Agency at the time of apprehension was not concerned with R.V.S.’s progress with her case plan, they were not concerned with her alcohol consumption and they had zero concerns with drug usage. The Agency’s concern at the time of apprehension was about the potential for domestic violence and the non-imminent serious harm that exposure to such violence might have on D.D.S. So while, Ms. Soldier may have established that R.V.S. is not be the calming influence on D.D.T.’s behaviour that she believes herself to be outside of the home. That is

really beside the point, because there is no evidence that D.D.T.’s violence outside the home translates to violence inside the home. This is, in the Court’s view, a speculative concern, it is not an imminent concern. [ 34 ] The question remains, does this speculative concern on the Agency’s part, give rise to reasonable and probable grounds to believe that D.D.S. may be at risk of serious harm if he had been left in the care of R.V.S. and D.D.T.?

WHAT CONSTITUTES SERIOUS HARM IN A NON-EMERGENCY SITUATION? [ 35 ] The Agency did not allege that D.D.S. was in immediate peril had he remained in the care of his mother on March 23, 2020. As indicated, the Agency concern was of a non-emergent or non-imminent type and unfortunately neither the legislation nor the case law gives us a comprehensive definition of what will constitute serious harm in a non-emergent situation.

This issue was of course addressed by Supreme Court of Canada in its 2000 decision of K.L.W. vs Winnipeg Child and Family Services 2000 SCC 48 at page 577 of that decision the Court discusses the concept of serious harm in the following terms: “A child in need of protection includes situations in which a child is without adequate supervision or control.

While this term is broad, it contemplates situations of serious risk of harm to children, including, for example, those in which they are found alone in the street without anyone to care for them, or in which they are with adults who are unable to provide adequate care because they are intoxicated. Given the state’s duty to protect the child at risk of serious harm, as well as the child’s compelling interest in being so protected, immediate apprehension may be appropriate in such circumstances, even though there might be some dispute about whether the danger of harm is imminent.

All of these factors point to serious harm or risk of serious harm as an appropriate threshold for apprehension without prior judicial authorization. [ 36 ] This broad statement requires a contextual lens to appreciate what the Supreme Court contemplated as amounting to serious harm that is not imminent; the factual backdrop of the decision becomes important. The facts in the KLW case are very different from the facts in the case before me.

In KLW , the mother was an alcoholic who was often intoxicated, often neglecting her children, often in contact with former abusive spouses, and there had been a history of child apprehension with the mother’s older children, a history where those children were apprehended, returned and then apprehended again. In KLW , prior to apprehension, the Agency and the mother had agreed on a plan to avoid apprehension. The mother had agreed to enter a residential facility designed to assist pregnant women, but gave birth two weeks early and before she was able to enter the facility.

In KLW , the Supreme Court held that the agency had to act after the child’s birth because if apprehension had not been accomplished immediately the mother would have been free to leave the hospital with the baby. The reason the social worker needed to intervene so quickly in the KLW case was because the appellant had a history of drug and alcohol abuse and agency workers weren’t sure exactly how long it had been since the mother had been sober. [ 37 ] Another example of non-imminent serious harm can be found by considering the case of CFS v. AJA 2018 MBCA 187 .

This is a decision of Justice Menzies, there were a number of issues in that case, but for our purposes Justice Menzies considered in the context of a warrantless entry and apprehension, whether or not the Agency had reasonable grounds of non-imminent serious harm. In concluding that they did, Justice Menzies cited a number of factors that were known to the Agency at the time of apprehension.

The Agency had information from a credible source that the mother was actively selling and using methamphetamine in the family home with the child present; that a heroin user was residing in the home, that a male was observed by another adult inside the home “passed out” on a living room couch foaming at the mouth, that the mother advised that her partner was being violent with her, that the mother was heard discussing her use of meth openly with friends and claiming that she was a better parent while using methamphetamine. [ 38 ] In both of these cases, KLW and AJA , it is clear that the type of behaviour that will constitute non-imminent serious harm necessary to justify a warrantless apprehension is a pattern of behaviour that is readily observable and impacts directly on the parent’s ability to provide adequate care.

That is to say that the serious harm that might flow from that pattern of behaviour must be objectively identifiable and not too remote or speculative. In both cases, objectively speaking, one can clearly delineate a line between the parent’s behaviour and the risk of serious harm. In KLW the connection between a primary caregiver who has a pattern of neglectful behaviour towards her own child which is linked to untreated alcohol abuse and the risk of serious harm to an infant in her care is clear when she is still an untreated alcoholic is clear.

Likewise, in AJA , the risk of serious harm readily identifiable to an infant who is forced to live in a meth house, over run with drug users, with a parent who is actively involved in the drug trade is equally plainly clear. [ 39 ] Conversely, in CFS v. KB 2006 MBCA 82 , Justice Monnin for a unanimous Court of Appeal, found that the motion Judge was correct for quashing an apprehension finding a risk of serious harm had not been made out.

In that case, the Agency argued that non- imminent serious harm might occur by allowing a female child reside in her father’s home, a home which might at some point in the future be occupied by a stepbrother who had sexually abused a different stepsister. [ 40 ] In that case the apprehension was quashed because the stepson was actually in jail at the time of apprehension. Justice Monnin observed at paragraph 15 that the motion judge’s decision to quash the apprehension was based on a lack of reasonable and probable grounds.

Finding on the facts known to the Agency at the time the child was not in need of protection and therefore objectively no reasonable and probable grounds could exist.

[ 41 ] From this contextual analysis the Court is left to conclude that if the Agency’s concern over non-imminent serious harm is of a nature that is speculative or requires a number of intervening factors to occur before its potential can be realized w ill not be sufficient in law to justify an apprehension without prior judicial authorization. So where does this case fall on that spectrum?

DECISION [ 42 ] My conclusion, after having heard all of the evidence and having considered the written and oral argument of both counsel, is that the Agency did NOT have reasonable and probable grounds to believe that D.D.S. was in need of protection from serious harm at the time of apprehension . [ 43 ] I reach this conclusion, after having considered all of the evidence but in particular the evidence that: (

a) R.V.S. was in substantial compliance with the Agency case plan when they decided to apprehend her third child. R.V.S. had been attending counselling, in good faith, and regardless of this fact and despite the rationale for previous apprehensions, the Agency simply decided to apprehend the child because of her choice in domestic partner. (

b) The Agency, planned to apprehend D.D.S., despite that fact that they did not believe that R.V.S. had a drug or alcohol problem. Importantly, they did so despite having no concern with R.V.S.’s ability to parent and being of the view that she would be a ‘good parent’ to D.D.S. (

c) The Agency did so knowing that R.V.S. had adequate and stable housing in place to raise D.D.S. The Agency failed in it’s obligation to consider any other option short of apprehension. (

d) At the time of apprehension the Agency did not have any specific safety concerns for D.D.S., rather they were concerned generally with the potential for violence in the home. [ 44 ] At the time of apprehension, the Agency’s only child protection concern stemmed from R.V.S.’s desire to co-parent with the children’s biological father D.D.T. At this juncture it bears noting that this couple has been together for over five years . The Agency has been involved with them extensively for the last five years .

Agency workers, drivers, counselors have all seen them in the community, separate and together at least once of twice a months for much of this time. There was never a suggestion, that in all this time, there was ever concern about domestic violence between the two. R.V.S. testified that there was no domestic violence in their relationship. Finally, in defence of their apprehension of D.D.S., the Agency compiled and extensive list of every interaction with the law and law enforcement that D.D.T. has had and there was been no indication of domestic violence.

The level of scrutiny endured by this family is significant and if there had been any domestic violence between these two, the Court would certainly have been made aware of it. [ 45 ] In my view, the Agency’s concern for the constellation of circumstances that could jeopardize D.D.S.’s safety is so remote in the circumstances of this case that it was not sufficient in law to justify his warrantless apprehension. [ 46 ] Their concern that D.D.T.’s presence in the home creates a risk of serious harm to D.D.S. at the time of apprehension was nothing more than speculation.

This speculation does not in law rise to the level of reasonable or probable grounds. There did not exist on the date of apprehension, the subjective or objective grounds to apprehend D.D.S. as there was no risk of serious harm. [ 47 ] Accordingly, I order the immediate return of D.D.S., born […], 2020 to his mother R.V.S. [ 48 ] It is somewhat ironic, tragically so, that the Agency, over the last five years, has given R.V.S. the ability to speak for herself as well as the tools to parent her children and yet not the opportunity to do so.

Given the scrutiny R.V.S. has endured over the last five years, the Court is of the view that she has earned the right to parent her child and the opportunity to prove to the Agency what she has learned. In the Court’s view, rather than apprehending her child, the Agency ought to have given R.V.S. that opportunity on March 23, 2020 and worked more collaboratively with her and D.D.T. “ORIGINAL SIGNED” Bayly, P.J.