A.J. v. D.K., 2018 BCSC 903

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.J. v. British Columbia (Director of Child, Family and Community Service), 2018 BCSC 903 Date: 20180601 Docket: S117751 Registry: Kelowna Between: A.J. and D.K. Appellants And British Columbia (Director of Child, Family and Community Service) Respondent Before: The Honourable Madam Justice D.C. MacDonald On appeal from: An order of the Provincial Court of British Columbia, dated November 14, 2017 ( Director of Child, Family and Community Service v. A.J. and D.K. , Kelowna Registry, Docket 113609).

Reasons for Judgment The Appellants, appearing in person: A.J. and D.K. Counsel for the Respondent: L.L. Kennedy Place and Dates of Hearing: Kelowna, B.C. April 6 and 24, 2018, B.C. Place and Date of Judgment: Kelowna, B.C. June 1, 2018 Appeal [ 1 ] On November 14, 2017, the Provincial Court of British Columbia found that a child, C.J., was in need of protection and ordered that C.J. be placed in the continuing custody of the Director of Child, Family and Community Service (the “Director”). The court was acting pursuant to s. 41(1) (

d) of the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 [ Act ]. C.J.’s biological parents, A.J. and D.K., appeal that decision. [ 2 ] This appeal is pursuant to s. 81 of the Act . Section 81(7) states that this Court may do one or more of the following: (

a) confirm the order of the Provincial Court; (

b) set aside the order of the Provincial Court; (

c) make any order that the Provincial Court could have made; (

d) direct the Provincial Court to conduct a new hearing. Issues [ 3 ] The appellants allege a number of errors in law. These alleged errors include: 1. the trial judge failed to find that the Director discriminated against the appellants contrary to the Canadian Charter of Rights and Freedoms [ Charter ]; 2.

section 40 of the Act requires that s. 13 be applied and given as a reason for the protection order; the trial judge did not state the specific grounds for the protection order, as required under s. 13 ;

3. the trial judge cannot make an order under s. 41 of the Act without considering s. 40(3) (b); 4. the trial judge did not identify the reasons for the continuing custody order pursuant to s. 41(2)(a), (

b) or (c); 5. the appellants did not consent to the trial judge’s order granting continuing custody to the Director as is required pursuant to s. 50.1(2)(a), and he made an order contrary to s. 50.1(2)(c); and 6. the appellants were treated unfairly by the trial judge. [ 4 ] Ultimately, the appellants would like C.J. returned to them immediately. Facts [ 5 ] The background facts are set out in detail by the trial judge in Director of Child, Family and Community Service v. A.J. and D.K. (14 November 2017), Kelowna 113609 (B.C. Prov. Court). The following is a brief

summary. [ 6 ] The appellants are the biological mother, A.J., and biological father, D.K., of C.J., who was born November 1, 2016. [ 7 ] The appellants are Christians and their view of Christianity informs all aspects of their lives. Both parents come from religious families. [ 8 ] The father, D.K., grew up in Maple Ridge and was home-schooled. He was later involved in missionary work in Mexico with his family. In his early 20s he had a falling out with his parents and returned to British Columbia. He spent several years in and out of work, abusing alcohol and drugs, and living on the streets.

At some point he returned to his Christian values and became involved with A.J. [ 9 ] The mother, A.J., was born in Ontario. She went to private Christian schools in Toronto and in Ottawa. She also distanced herself from religion in her young adult years. However, in 2012 A.J. returned to her Christian roots and attended the Pacific Life Bible College in Surrey, BC. [ 10 ] A.J. and D.K. met in April 2014. Their initial attraction appears to have largely been their mutual interest in the teachings of Christ. Sometime in 2015, the couple was privately married.

This marriage is not sanctioned by the province but they believe it is sealed by the Holy Spirit under God’s law. [ 11 ] The couple have had unstable working and living arrangements, and have a history of alienating friends and church members. On a number of occasions they have been told they are not welcome in churches. This typically occurs after they attempt to purge churches of evil influences. It appears that due to their strong religious beliefs, they are intolerant of those who do not espouse identical views.

This includes other Christians. [ 12 ] The couple have lived in a number of different areas including Surrey, Pemberton, Kelowna and Peachland. In early 2016, A.J. moved to Peachland without D.K. due to conflict with the individuals with whom they were living in Pemberton. There was also conflict between A.J. and D.K. [ 13 ] In March or April 2016, A.J. discovered that she was pregnant. On April 21, 2016, she started attending a West Kelowna maternity clinic (the “Maternity Clinic”) which supports homebirths.

In October 2016, D.K. moved to Peachland to live with A.J. [ 14 ] The couple has a history of arguing, and on at least one occasion their argument became violent. Although A.J. initially reported these violent incidents, she now denies them. [ 15 ] The initial report was as follows. While attending the Bridges Lunch Program, A.J. disclosed to the facilitator of the lunch program that her husband choked her by grabbing her throat to stop her from crying. A.J. disclosed that her husband had done this more than once and that he had tied her hands and covered her mouth with tape, which scared her.

She disclosed that D.K. regularly beat her. A.J. also stated that her husband grew up in a cult, that he believes sexual relations between children should be encouraged, and that she believes the abuse she was experiencing is “spiritual warfare”. The appellants role-play these sins where she plays the victim and he plays the perpetrator. [ 16 ] A.J. was later interviewed by the police and she denied any such assaults. However, on November 2, 2016, after the child’s birth, A.J. was interviewed by a social worker about the alleged violence.

She advised that D.K. had put his hands around her neck and brought her down to the floor. On the same day, a social worker interviewed D.K. about the allegation. D.K. said the incident occurred on his birthday, that they were arguing and he felt he was not being heard by A.J. He became frustrated with her and had a few drinks to calm himself.

Later, to quieten her down, he put his hand around her throat and his other hand over her mouth but he did not hurt her. [ 17 ] As a result of the reported violence, on October 27, 2016 a complaint was made to the Ministry of Children and Family Development (the “Ministry”). [ 18 ] In addition to the domestic violence concerns, the Director heard concerns regarding the care of the child. The first issue was with respect to A.J.’s insistence that the birth be a homebirth. At the outset this was not problematic.

However, due to difficulties A.J. was having with the staff at the Maternity Clinic, it was determined that it would be best to have the baby delivered in the hospital. There was a lot of back-and-forth between the parents, the social workers, and the Ministry because the parents did not accept the decision that the baby be delivered in the hospital. Dr. Hautala from the Maternity Clinic called the Ministry because she now had concerns about A.J.’s mental health. [ 19 ] Ultimately, the appellants chose to continue with a homebirth without any medical attention. This arrangement was

unacceptable to the Ministry. The Maternity Clinic also did not recommend a medically unsupported home delivery. [ 20 ] On the day of the actual birth, A.J.’s parents were present. After unsuccessfully encouraging the appellants to get medical attention, A.J.’s parents went to a neighbour’s home and asked the neighbour to call 911 for emergency assistance. The paramedics arrived shortly thereafter. The father D.K. did the delivery, following the instructions of a paramedic. [ 21 ] After the delivery, the baby was transferred to the hospital.

The trial judge was concerned that a number of medical procedures were offered to the parents to assess the health of both the baby and the mother, and all of these procedures were refused by A.J. [ 22 ] At the same time that the baby was taken to the hospital, the Ministry unsuccessfully took steps to have A.J.’s mental health assessed. Dr.

Hautala was concerned with A.J.’s mental health and her ability to provide safe care to the infant, and felt that “the inflexible beliefs of the mother would make her unable to make good decisions for the baby” (para. 45). [ 23 ] The trial judge noted at para. 60 that A.J. refused all of the following medical procedures: the usual Rhogan blood product used to avoid A.J.’s body making antibodies against future pregnancies, which was recommended because A.J. had RH positive blood; routine pre-natal vitamins; routine cervical pap screening; routine blood-sugar testing; GBS screening; a vaginal exam prior to birth; a vitamin K shot for the baby after birth; eye drops for the baby after birth; a bilirubin blood test for the baby; a common hearing test; and RH testing for the baby.

A.J. also expressed unwillingness to allow the child to receive vaccinations. [ 24 ] Due to concerns regarding family violence and mental health, a family intervention specialist was assigned to work with the family. This specialist worker had a Master’s degree in social work with a background of working with people with potential mental health difficulties. Additionally, because the family was being investigated for potential domestic violence, the parents reluctantly signed a voluntary care agreement on November 7, 2016 to avoid the child being removed from them without their consent.

The child was transferred from the hospital to the home of foster parents. [ 25 ] After signing the voluntary care agreement, the parents were able to see the baby several days a week. A.J. was breast-feeding the child. She was also expressing milk for the baby who was in the care of foster parents. A.J. did not want the child receiving any food other than her breast milk. [ 26 ] On December 7, 2016, there was a case planning conference. In that meeting it was acknowledged that the parents had attended their access visits regularly and they had expressed a willingness to accept community supports.

Although there were still a number of concerns, the Director was prepared to allow the baby to return home if community supports were put in place. [ 27 ] On December 8, 2016, the baby was returned to the parents. One of the conditions in the community support agreement was that the parents would abstain from the use of alcohol and illegal drugs. At the time of the exchange, the father became upset regarding the requirement that he remain alcohol-free. [ 28 ] The next issue that arose regarded the weight of the baby. The mother was feeding the baby 100% breast milk.

This was contrary to the advice of the lactation specialist, who had advised of the need, during the transition, to provide formula top-up feedings. A midwife had also emphasized the importance of allowing the formula top-up if the baby was hungry. In response A.J. stated that she believed the baby had to work for her food and the formula milk had unhealthy impurities for the baby. [ 29 ] There were many discussions between the authorities and the family regarding A.J.’s refusal to allow formula top-up feeding. D.K. secretly did some formula top-ups but this created conflict between the parents.

The mother had dumped the formula on at least one occasion. The mother also stated that the father was projecting his addiction onto the baby by allowing her to drink formula because he was not allowed to drink alcohol. [ 30 ] The parents were to bring the baby into a clinic for scheduled visits. On December 13, 2016, the baby was weighed at the clinic. A loss was noted of 3.5 ounces over four days since the last weigh-in.

Although the testimony and charts did not conclusively demonstrate that the baby was losing weight in their care, the medical professionals were concerned regarding the refusal to give the baby formula and whether the baby was thriving in the care of her parents. [ 31 ] On December 15, 2016, the child was formally removed from the home. The baby went back to the foster parents and gained weight. [ 32 ] On February 9, 2017, an interim s. 35 order was made, placing the child in the custody of the Director and granting the parents reasonable access, supervised at the discretion of the Director.

There were some concerns raised during these supervised visits, although on my review of the evidence and exhibits these concerns may have been overstated. What is clear is that when questioned about parenting skills, the father got aggressive. This occurred on February 14, 2017 and the RCMP had to be called to attend. Following this visit, access was terminated until the parents signed a conduct agreement. [ 33 ] On March 8, 2017, the matter was in Provincial Court for the commencement of the protection hearing. The Director also spoke to an application for a parental capacity assessment.

The parents were asked by the court if they would participate in the assessment and they declined. No parental capacity assessment was ordered at the time. [ 34 ] On April 28, 2017, A.J. sent an email to a social worker, Melanie Crowston, to

schedule future access dates but also wrote the following: God is doing a great work here. And believe me, you want the wicked and corrupt things addressed, because everyone suffers when evil is allowed to harm you and families. So we need Jesus to clean up the corruption and bring justice back to this place. How filthy and corrupt your job is and the people you work for. I am ashamed for you. It is evil. I’m sorry you work for such an ugly corrupted company too… [ 35 ] As evidenced by this email, the parents continued to have difficulty working cooperatively with others. The mother often

demonized those seeking to help her. For example, the parents were asked to leave the parish they were attending. On April 29, 2017, thepastor, on the recommendation of the church leadership, called the police to see what steps were needed to get a restraining order againstthe appellants. The parents returned to the church on May 3, 2017 and caused another disturbance at a support group meeting.

The pastorthen sent the parents an email indicating that they were no longer welcome to attend the church. [36] On May 10, 2017, A.J. sent an email to [then] counsel for the Director stating the following: Be prepared for your house to see a very large debt come across and bankruptcy due to the criminal charges against the court system andthe ministry of children and youth and particularly the judicial system that has imposed the degradation of children and harm to thefamilies.

The Lord Jesus has now come in to judge and he has seen the demise of what He had set in place for good has now beencorrupted and covered in greed and filth. [37] The trial judge stated that the email “could be perceived as threatening”. At this stage, correspondence was being directedthrough the office of the Director because the parents refused to communicate with the social worker. [38] On May 17, 2017, there was a disturbance at the Emmanuelle Church in West Kelowna. The police became involved. The trial judge heard evidence from a youth pastor and an RCMP officer who were present at the May 17th disturbance.

The parents were arrestedand criminally charged for the disturbance. D.K. cooperated with the arrest but A.J. “rolled around on the ground” and did not cooperate.The parents allegedly wanted to cleanse the Church of evil influences. On that same day the parents had a scheduled access visit withtheir child, but they missed the visit because they were in custody. At this point the Ministry decided to apply to court to ensure that theparents had no further access.

The Director was firm in its position that a continuing care order in the first instance was in the bestinterests of the child. [39] On July 27, 2017, the parents attended the Kelowna Police detachment for a supervised visit. The father had a subpoena hewanted to serve on a social worker and became upset when the other social worker would not accept it on her behalf. This resulted intension in the room and arguments by the parents.

The father continued to argue loudly despite being asked to stop by the social worker,but the visit eventually ended without incident. [40] On August 3, 2017, the protection hearing continued. The trial judge ordered that the parents participate in a parental capacityassessment. The trial judge further ordered that the parents have no further parenting time until they complied with the order for theassessment. The hearing was adjourned to October 16, 2017. [41] At the October hearing, the trial judge heard that the parents continued to attend churches with the goal of cleansing them fromdemonic influences.

The parents had also refused to participate in the parental capacity assessment. [42] At trial, A.J. testified that she had an application pending to change the name of the child. She wanted C.J. to have a hyphenatedfirst name including Jesus and a middle name of JoyoftheLord. She was also applying for a change in her first name to the Risen LordJesus–A, a new middle name of Refinersfire–Deanne, and a change in her last name to add the name Christ. [43] One last issue in this case was the conduct of the appellants at trial.

First, they refused legal aid assistance and maintained thattheir legal counsel was the Lord Jesus. Second, the parents verbalized words that were not discernible to the court; they appeared to bespeaking in tongues. They spoke in tongues to their stuffed animal, a lion, and claimed that through this lion they were hearing directlyfrom their counsel the Lord. Third, when cross-examining witnesses, the appellants advised each witness that it was their lawyer JesusChrist asking the questions through the voice of the parent.

Fourth, the trial judge found the parents not to be credible witnesses: seeparas. 43, 72, 95 and 100. Positions of the Parties [44] From the outset, the Director has had protection concerns regarding the capacity of the appellants to parent. There have beenconcerns regarding mental health, domestic violence, an unwillingness to follow medical directions for the child, and an inability tocooperate with those who could support them. [45] The appellants, in contrast, take the position that there are no child protection issues and that they are being persecuted for theirdeeply held Christian beliefs.

Standard of Review [46] In A.S. v. B.C. (Director of Child, Family and Community Service), 2006 BCSC 133, Justice MacKenzie (as she then was) setout the appropriate standard of review to be applied by the BC Supreme Court on appeal pursuant to s. 81 of the Act: [19] The scope of appellate review, pursuant to s. 81 of the Act is narrow. This Court does not re-hear the matter and substitute itsown findings. The parties agree that this Court can intervene only if the trial judge made an error of law or seriously misapprehended theevidence.

There must be an error in principle, a failure to consider all relevant factors, a consideration of an irrelevant factor or a lack offactual support for the judgment: New Brunswick (Minister of Health and Community Services) v. L.(M.), (SCC), [1998] 2 S.C.R. 534, 165 D.L.R. (4th) 58, at ¶35; Van de Perre v. Edwards, 2001 SCC 60 , [2001] 2 S.C.R. 1014, 2001 S.C.C.60, at ¶13. Errors in findings of fact are not to be overturned unless the appellant can point to some palpable error. The appellant must beable to point to an error that is “plain to see:” Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, 2002 S.C.C. 33 at ¶5. [20] In Re S. (P.J.),,

(2000) B.C.S.C. 582 at ¶6, Blair J. confirmed the standard of review on an appeal from the provincial court on achild protection proceeding, described by Lord Simmonds in McKee v. McKee, (UK JCPC), [1951] A.C. 352, 2

W.W.R. (N.S.) 181, (Canada P.C.) at p. 360, as follows: [T]he question of custody of an infant is a matter which peculiarly lies within the discretion of the judge who hears the case and has theopportunity generally denied to an appellate tribunal of seeing the parties and investigating the infant’s circumstances, and that hisdecision should not be disturbed unless he has clearly acted on some wrong principle or disregarded material evidence. [21] The deferential standard of review in child custody cases is based upon the trial judge’s unique role in observing the witnessesand in society’s interest in promoting finality and stability in those types of hearings: Van de Perre, at ¶11-12. [47] In Rahman v.

British Columbia (Director of Child, Family and Community Service), 2009 BCSC 1073, Justice Burnyeatexplained that a s. 81 appeal is not a trial de novo: [22] The appeal is not a trial de novo. There cannot be a review of the evidence before the Learned Trial Judge and a substitution of ajudgment. The decision cannot be set aside unless I find that the Learned Trial Judge made an error at law, erred in principle, disregardedsignificant material evidence that there was a lack of factual support for the judgment, or that the award was clearly wrong: B.S. v.

BritishColumbia (Director of Child, Family and Community Service) (1997), 44 B.C.L.R. (3d) (S.C.) at para. 23; A.L. v. British Columbia(Director of Child, Family and Community Service), [2008] B.C.J. No. 1177 (S.C.); and D.M.G. v. British Columbia (Director of Familyand Child Services), 2007 BCSC 461 , [2007] B.C.J. No. 682 (S.C.). [48] In M.G. v. Director of Family and Child Services, 2007 BCSC 461 at paras. 6-7, Justice Russell found that the standard ofpalpable and overriding error applies to inferences of fact and to questions of mixed fact and law where the issue on appeal involves thetrial judge’s

interpretation of the evidence as a whole. [49] The parties agree that the standard of review for errors of law is correctness: Seleznyova v.

British Columbia (Director of Child,Family and Community Services), 2012 BCSC 1452 at para. 77. [50] From these cases, it is clear that the scope of appellate review is narrow and the trial judge is entitled to considerable deference.This Court can only intervene where the trial judge made an error of law, seriously misapprehended the evidence, did not take allrelevant factors into account or considered irrelevant factors, or the decision lacked a factual foundation. [51] With these principles in mind, I will review the decision.

Legislative Provisions [52] The general provisions of the Act relevant to this appeal include the following: Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and inaccordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children restsprimarily with the parents; (

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

d) the child’s views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child’s attachment to the extended family should be preserved if possible; (

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

g) decisions relating to children should be made and implemented in a timely manner. … Best interests of child 4

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

a) the child’s safety; (

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

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

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

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

(

f) the child’s views; (

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

(2) If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests. … When protection is needed 13

(1) A child needs protection in the following circumstances: (

a) if the child has been, or is likely to be, physically harmed by the child’s parent; (

b) if the child has been, or is likely to be, sexually abused or exploited by the child’s parent; (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child; (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child’s parent; (

e) if the child is emotionally harmed by (

i) the parent’s conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides; (

f) if the child is deprived of necessary health care; (

g) if the child’s development is likely to be seriously impaired by a treatable condition and the child’s parent refuses to provide or consent to treatment; (

h) if the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; (

i) if the child is or has been absent from home in circumstances that endanger the child’s safety or well-being; (

j) if the child’s parent is dead and adequate provision has not been made for the child’s care; (

k) if the child has been abandoned and adequate provision has not been made for the child’s care; (

l) if the child is in the care of a director or another person by agreement and the child’s parent is unwilling or unable to resume care when the agreement is no longer in force. Analysis 1. Was it a legal error for the trial judge to find that the Director did not discriminate against the appellants? [ 53 ] The appellants do not set out, beyond the mere assertion, how they have been discriminated against as a family.

They state in their reply: “We request our Rights as Christian parents to be not discriminated in our way to care for our Child.” They note the trial judge stated he was himself a Christian and did not have an issue with their Christian family values. From this they conclude that the trial judge had no issue with their way of parenting. From their submissions, it is unclear where exactly the discrimination on the basis of religion is alleged to have occurred. [ 54 ] A fair reading of the decision establishes that the trial judge considered the issue of discrimination on the basis of religion.

The trial judge rejected that claim, stating at para. 97 that religion was not on trial: I restate that this hearing is not about the parent’s freedom of religion. Naturally they have that freedom, as do all members of our society. Christians continue making up a significant portion of Canada’s overall population and collectively are in no way seen as having negative parenting values. Christianity is not on trial. The parent’s belief in direct revelation from God or in using the gift of tongues is not on trial. Home birthing is not on trial.

The right not to use vaccinations or have ones child not use vaccinations is not on trial. The parents make it abundantly clear throughout this hearing that they believe the only reason their child has been removed is because those making the child protection decisions are persecuting them because of their Christian beliefs. They are entitled to that opinion, but that is not the view of the court in this matter. [ 55 ] With respect to the Director’s concerns regarding mental health, the appellants pointed out that this could be discrimination based on disability.

They stated that people with disabilities have the right to have children, but they may need some supports. The comment about the need for support is valid but the trial judge addressed this point. The trial judge specifically discussed whether the parents could take care of the child with the proper supports in place: Act , s. 2(

b) and (c). However, he found that the parents rejected support because they tended to demonize those who have tried to help them with parenting: churches; Christian families; and social workers. The trial judge was of the opinion that putting supports in place was no longer a viable option.

[ 56 ] None of the appellants’ assertions make any connection, much less a nexus, between the Charter rights and freedoms alleged to be violated and the concerns of the Director which were accepted by the trial judge. [ 57 ] The appellants have not proven discrimination against them as a Christian family or on the basis of disability. The trial judge was correct to reject the discrimination argument. 2.

Did the trial judge err in not providing s. 13 reasons before granting the protection order? [ 58 ] The appellants allege that the trial judge erred by not stating the precise protection concern as required under s. 13 of the Act . Although the trial judge could have been more precise, he certainly articulated the reasons for granting the continuing custody order. He first referred to the law and the guiding principles in the Act : [98] The law is clear. The court follows the guiding principles set out in

section two of the Child, Family and Community Service Act (CFCSA). The paramount consideration is the safety and well-being of the child. If with proper supports the safety and well-being of the child can be met in the home of the parents, then the family is the preferred environment for the care and upbringing of the child. [ 59 ] He stated at para. 105 that the Director was relying on s. 13 (d) [likelihood of physical harm to the child based on the parents’ neglect] and (h) [the parents’ inability or unwillingness to properly care for the child] in arguing that the child was in need of protection.

That his findings were based on s. 13 of the Act was implicit in his analysis and his conclusion at para. 113 “that the child is in need of protection”. [ 60 ] One of the obvious examples of the trial judge’s s. 13 reasons is at para. 107, where he noted that there is some level of family violence. He found that although the evidence was somewhat inconsistent, there was certainly evidence of ongoing conflict between the parents. At trial, A.J. denied that she made the allegations apart from conceding that D.K. had covered her mouth with his hand.

D.K. testified that to stop her from screaming and crying, he went upstairs and put his hand over her mouth and told her to be quieter. He denied ever choking her or assaulting her or tying her up. The trial judge found that both parents lacked credibility with respect to this testimony. The trial judge also discussed the expert testimony regarding the impact of domestic violence on children, at para. 110. The trial judge’s concern regarding domestic violence fits within s. 13 (e)(ii) of the Act . [ 61 ] The trial judge also set out the concerns with A.J.’s mental health at para. 108 consistent with s. 13 (

h) of the Act . While the appellants stated that it was not reasonable for the trial judge to find mental health concerns, the findings regarding mental health were based on the record (e.g., testimony of Dr. Hautala). The appellants stated that the concerns regarding the mental health of A.J. were based on the fact that she speaks in tongues. If it were just based on A.J. speaking in tongues they might have a point, but there were other behaviours raising mental health issues such as the conflict A.J. has with all those around her, including other Christians and her parents.

In any event, if A.J. wanted to demonstrate she had no mental health issues, her opportunity would have been to undergo a parental capacity assessment. Despite this being ordered by the court, both parents refused to undergo the assessment. The trial judge discussed the difficulty that put the court in at para. 109. [ 62 ] The trial judge was mindful that s. 2 of the Act states that the family is the preferred environment for the child if, with supports, it can provide a safe and nurturing environment (see para. 55 above).

The trial judge discussed whether the parents could take care of the child with the proper supports in place. Here he found that the parents had limited support because they had conflict with those who could have helped them with parenting: churches; Christian families; their parents; midwives and doctors; social workers; and “likely anyone holding a position of authority over them” (para. 109).

He noted that the parents could have had the support of a freely appointed lawyer, but they instead chose to claim that Jesus Christ was their lawyer, and also that Jesus Christ was their only witness (para. 99). [ 63 ] The trial judge found that the parents’ focus “is always centred on their perceived calling as the mouthpiece of God, and they allow no room for seeing the world through the lens of a child”, as evidenced for example by them choosing to change the child’s name to “Jesus” and “Joyoftheworld”. Consistent with s. 13 (

f) of the Act , the trial judge was concerned that the parents were unwilling to follow the medical advice of doctors at the time of the birth, the medical advice when the baby was taken to the hospital following the birth, and the advice of medical professionals regarding the need to top up the baby’s breast-feeding with formula when the child was living with the parents. [ 64 ] There was also the concern about the baby’s weight when she was in the care of the parents. The parents took me to the weight charts and the charts were certainly not as clear-cut as the decision suggested. In fact, Dr.

Hautala testified that she could not “make any direct correlation with the weights and whose care the baby is in”. Therefore the parents are correct to question any emphasis placed on a lack of weight gain of the baby as a reason for removal. However, there were other concerns to establish that permanent removal is in the best interests of the child. [ 65 ] I conclude that the trial judge did not fail to provide s. 13 reasons. 3.

Was the trial judge incorrect in ordering s. 41 continuing custody with the Director without considering s. 40(3)(b)? [ 66 ] The parents argued that the trial judge erred by not having a separate hearing to determine if a continuing custody order was warranted. [ 67 ]

Section 40 states: Protection hearing

(1) At the protection hearing the court must determine whether the child needs protection.

(2) If the court finds that the child does not need protection, it must (

a) if the child was removed, order the director to return the child as soon as possible to the parent apparently entitled to custody unless the child has already been returned, and (

b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3).

(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the director, and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. [ 68 ]

Section 41 states: Orders made at protection hearing 41

(1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child’s best interests: (

a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the director’s supervision for a specified period of up to 6 months; (

b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the director’s supervision, for a specified period in accordance with

section 43; (

c) that the child remain or be placed in the custody of the director for a specified period in accordance with

section 43; (

d) that the child be placed in the continuing custody of the director.

(1.1) When an order is made under subsection (1) (

b) or (c), the court may order that on the expiry of the order under subsection (1) (

b) or (

c) the child (

a) be returned to the parent, and (

b) be under the director’s supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the director unless (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, (

b) a parent is unable or unwilling to resume custody of the child, or (

c) 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 interests to be returned to the parent.

(2.1) If an order was made under

section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the director supervise the child’s care for a specified period of up to 6 months.

(3) The court may attach to an order under this

section any terms or conditions recommended by the director to implement a plan of care. [ 69 ] I agree with the respondent that ss. 40 and 41 must be read together. Pursuant to s. 40 , the court determines if the child needs protection; pursuant to s. 41 , the court determines which child protection order is in the best interests of the child. On a plain reading of the legislation, only one hearing is contemplated to consider both ss. 40 and 41 .

However, the Act provides the judge with the discretion to require more evidence if that would be helpful. [ 70 ] Based on the previous section, it is clear that there was sufficient evidence before the trial judge to allow him to come to the conclusion that a continuing custody order was warranted in the circumstances. No further hearing was necessary. 4.

Did the trial judge fail to identify the reasons for the continuing custody order pursuant to s. 41(2)(a), (b), or (c)? [ 71 ] Similar to their complaint under s. 13 , the parents took the position that the trial judge made a legal error by not considering legislative factors prior to making a continuing custody order. [ 72 ] Section 41(2) provides: 41

(2) The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the director unless (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, (

b) a parent is unable or unwilling to resume custody of the child, or

(

c) 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 interests to be returned to the parent. [ 73 ] Although he did not specifically refer to the section, at para. 112 the trial judge addressed the requirements of s. 41(2): [112] I have no difficulty in finding that the child was in need of protection at the time of the removal and remains in need of protection from the parents to this day. The situation will not improve any time soon, given the parent’s unwillingness to make changes .

They will not even speak with a social worker. They will not cooperate with a parental capacity assessment in spite of being court ordered to do so. The likelihood of harm to the child if in the care of the parents is high. There is little prospect it will be in the child’s best interests to be returned to the parents. Accordingly a continuing care order is warranted. [Emphasis added.] [ 74 ] It appears that the trial judge relied on s. 41(2)(

b) and (c). It was not necessary for him to address s. 41(2)(

a) because the provision is worded disjunctively. It is only necessary to rely on one of the enumerated reasons in s. 41(2) to justify a continuing custody order. Although it would have been helpful if the trial judge set out the particular provision(

s) upon which he relied, this omission does not constitute a legal error vitiating the decision. [ 75 ] The appellants were very distressed because they believe the trial judge did not say what was wrong with their parenting skills. As noted above, they stated that the trial judge was himself a Christian and did not have an issue with their Christian values.

From this they conclude that the trial judge had “no issue with their way of parenting”. [ 76 ] In terms of their parenting skills, I reviewed video evidence of their interactions with the child during the supervised visits and I saw nothing inappropriate in their treatment of her. It is possible that something occurred that was not captured on video. It is also possible that the social worker who supervised them on February 14, 2017 was being somewhat hard on them. The parents had few difficulties with the previous social worker and she testified on their behalf.

That being said, the father’s post-visit conduct was of concern as it reinforced that he has anger management problems and his behaviour is volatile. [ 77 ] From the issues regarding domestic violence, the parents’ unwillingness to make changes, their history of alienating those who try to assist them, and their unwillingness to undertake a parental capacity assessment, the trial judge was clearly of the view that they were unable to safely parent their child. Moreover, a fair reading of para. 112 demonstrates that the trial judge turned his mind to the appropriate

section of the Act and found that the requirements of s. 41(2) were satisfied. [ 78 ] I find that there was sufficient evidence before the trial judge to support the order for continuing custody of the child. 5. Is it significant that the appellants did not consent to the trial judge’s order granting continuing custody care to the Director as is contemplated in s. 50.1(2)(a)? [ 79 ] The parents were of the opinion that because s. 50.1 refers to parental consent, their consent was required before a continuing custody order could be made. [ 80 ]

Section 50.1 of the Act provides: Placement of child for adoption 50.1

(1) A director may request a director of adoption to place a child for adoption if (

a) the child is in the continuing custody of the director, or (

b) the director is the child’s personal guardian under

section 51 of the Infants Act .

(2) A request under subsection (1) (

a) must not be made unless (

a) the continuing custody order was made by consent, (

b) the time limit under section 81 (2) in relation to the continuing custody order has expired and no extension under section 81 (8) has been granted, or (

c) all appeals related to the continuing custody order have been heard and the continuing custody order has been upheld. [ 81 ]

Section 50.1 addresses the issue of placing a child for adoption after a continuing custody order is made. It prohibits the Director from doing so unless all avenues of appeal have been exhausted. This

section does not address the legitimacy of the continuing custody order, and a lack of consent on the part of the appellants is not grounds for setting aside the order. [ 82 ] The parents were also concerned that they were not asked to sign the order and argued that this demonstrated their lack of consent. With respect to not signing the order, Rule 18(4) of the Provincial Court (Family) Rules states that an order must be signed as approved by the lawyer for each party who was represented, unless the judge orders otherwise. Parties without legal representation are not expected to sign the order.

Consequently, the fact that the appellants did not sign the order is not grounds for setting it aside. 6. Were the appellants treated unfairly by the trial judge? [ 83 ] In their reply, the appellants added that they should not be denied their s. 7 right to “life, liberty and security”. Numerous other

Charter provisions were listed, but not expanded upon. [84] There is no doubt that s. 7 of the Charter is engaged. The principles of fundamental justice require that the parents had anopportunity to present their case and that they had a right to counsel to ensure a fair hearing: New Brunswick (Minister of Health andCommunity Services) v. G.(J.), (SCC), [1999] 3 S.C.R. 46 (S.C.C.). Here there is no evidence that the appellants weredenied a fair process or a fair hearing. The appellants did not have legal counsel but this was by choice.

They refused legal aid assistance,taking the position that Christ was their “lawyer, witness and judge”: trial judge’s reasons, para. 2. [85] The parents raised the issue of the family being the preferred environment for the care of the child and that child protectionrests primarily with the parents: s. 2 of the Act. As stated above, this was addressed by the trial judge and is not evidence that there was aviolation of s. 7 of the Charter. [86] The appellants did not prove that they were treated unfairly or denied fundamental justice under s. 7 of the Charter. Conclusion [87] This is a difficult case.

The parents obviously love their child and wish to raise her in their home with their Christian values.However, the reasons disclose a thoughtful analysis of the relevant evidence and the arguments that were presented at trial. Although thetrial judge did not specifically enumerate the categories set out in ss. 13 and 41 of the Act, he clearly addressed them in his reasons. Thisis obvious on a reading of the reasons in their entirety. [88] From my perspective, the main concern raised on this appeal was that the trial judge agreed with the Director that an immediatecontinuing custody order was appropriate.

This is because continuing custody orders lead to adoption of the child once the appealprocess is complete.

The trial judge based this order on the following factual findings: • the domestic violence in the family; • the ongoing conflict between the parents; • the parents ignoring recommendations for a hospital birth and opting for an unattended homebirth; • the parents’ refusal of routine medical tests and screens for the baby; • A.J.’s refusal to top up breast milk with formula despite concerns by the medical profession over the baby’s weight; • the ongoing concerns raised by medical professionals regarding the mother’s mental health and the absence of a full mental healthassessment; • the parents’ refusal to follow recommendations including not following court orders (e.g., a refusal to submit to drug and alcoholtesting and the refusal to undergo a parental capacity assessment, both ordered by the court); and • the parents’ resistance to working with or taking the advice of those who could support them such as the maternity clinic, thepublic health nurse, doctors, social workers, churches, Christian families, legal representatives, and A.J.’s parents. [89] In s. 81 appeals there is a significant level of deference owed to the decision of the trial judge.

My role as an appellate judge isnot to conduct a trial de novo and substitute my judgment unless the trial judge made an error of law or seriously misapprehended theevidence. Reading the decision as a whole, there was no legal error, reliance on irrelevant factors or lack of consideration of relevantfactors, or a serious misapprehension of the evidence.

Rather, the reasons disclose an evidentiary foundation to establish that it was in thebest interests of the child to order continuing custody to the Director. [90] For all of the above reasons, I dismiss the appeal. [91] I hope that once the appeal process is complete, and if adoption can be pursued, the Director will consider finding an extendedfamily member to adopt “the child. I further hope that the Director pursue other adoption options only if that “avenue proves to beinappropriate. “The Honourable Madam Justice D.C. MacDonald”