Director of CFCSA v. N.H. and D.W. Date:, 2012 BCPC 485

Citation: Director of CFCSA v. N.H. and D.W. Date: 20120913 2012 BCPC 0485 File No: Registry: Nanaimo 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: N.H , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: N.H. PARENT AND: D.W. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Director: M. Greves Counsel for the Parent: I. Filip Appearing for the mother : N.H. Place of Hearing: Nanaimo , B.C. Date of Hearing: September 13, 2012 Date of Judgment: September 13, 2012 [ 1 ] THE COURT (Orally): The matter before me is on Court File [delete for publishing] Nanaimo Registry. This is an application by the Ministry of Children and Family Development who are seeking a continuing custody order of the child N.H., whose birthdate is [DOB] (the "child").

N.H (1) was removed from his mother, N.H.(2), (the "mother") on February 10th, 2011. [ 2 ] The biological father of the child is D.W. (the "father"). D.W. is present in court today. Both the mother and the father have consented to a continuing custody order in favour of the Director being granted. That order is being sought pursuant to s. 49(5) of the Children, Family and Community Services Act (hereinafter referred to as the "Act"). [ 3 ] The live issue before me is whether or not I should be, at this stage, granting an access order in favour of the father.

The Ministry and the Director oppose the making of that order at this time. [ 4 ] The facts in this matter and the background bear some review. The child is now three years of age. The mother suffers from a genetic condition which limits her development capacity. The child, as it turns out, suffers from the same genetic abnormality. The net result of it is that at this point the child has not evidenced any reduction in development or developmental delay. The child apparently has met all the milestones for a three-year-old. [ 5 ] The mother, at the time that she became pregnant, was residing with Mr. and Mrs. H.

Mr. and Mrs. H. had been providing care to the mother. When the child was born, the arrangements were made by the Ministry to permit the child to remain with the mother, however, with primary care being provided by Mrs. H. The arrangements were such that the mother continued to reside with the H’s until there was a straining of the relationship between the mother and the H’s. At that time the mother indicated that she intended to leave the H residence and to establish her own residence.

More importantly, she indicated that it was her intention to take the child with her. [ 6 ] That caused considerable concerns in the mind of the Ministry. In particular, there was concern that because the mother had substantial developmental delays herself, it raised safety concerns for the child.

The mother's developmental delays included such things as: a lack of general life skills, a lack of experience at independent living, the ability to learn but not to maintain the life skills that she had learned, and her problem of becoming anxious when she either forgot some life skills that she had been taught or when she was faced with new problem situations. As a result of these concerns, the Ministry removed the child on February 10th, 2011. [ 7 ] Subsequent to that, there were attempts by the Ministry to liaise with the mother. The child remained in the care of Mr. and Mrs. H.

The Ministry dealt with issues of family visitation for the mother. Problems arose in connection with those arrangements. [ 8 ] The efforts of the Ministry were directed by Mr. Paul Hickson, who is a Ministry social worker. He attempted to have the mother enter into various programs in order to increase her life skills. He also dealt with the protection concerns. Specifically he dealt with the mother about the protection concerns of the Ministry, in particular based upon the mother and the child leaving the Hall residence.

At the end of the day, after a family case conference, the mother, who had independent legal representation at that time, did sign a consent for the continuing custody order. [ 9 ] The mother continues to have visitation arrangements which are supervised. From the evidence before me provided by the Director's witness Mr. Hickson, she has been exercising her access rights and arrangements on a consistent basis. That is not to say that there have not been some identifiable areas where there could be a more fulsome experience for the child and a more stimulating experience for the child during the access.

The mother has some difficulty dealing with the child's needs during those visitations. However, in fairness, the mother has recognized that she is unable at this time to provide the type of parenting necessary for the child. [ 10 ] When the Ministry started their efforts to proceed with a temporary care arrangement for the child, the file had gone through two officials of the Ministry before it landed under the responsibility of Mr. Hickson. He was not the first social worker who dealt with the removal of the child, nor was he the first social worker to deal with assisting and liaising with the family.

He was, in fact, the second worker. When he took responsibility for the file, through his review of the file, both at the time the matter was referred to him, which I believe to have been in around July 4th of 2011, and thereafter, he identified that there was, in fact, a biological father for the child who was known to the Ministry but with whom there was little in the way of contact. [ 11 ] The evidence of Mr. Hickson is that he made first contact with the father in or around November of 2011, being the point that the Ministry was in the process of considering proceeding with a continuing care application.

Documentation was served on the father, D.W., at that time. The evidence provided by Mr. Hickson and also confirmed by the evidence of the father, indicates that notification of the various proceedings in connection with the child were, in fact, passed on or made known to the father. [ 12 ] Mr. Hickson received little in the way of any communication back from the father, D.W. [ 13 ] It is clear on the evidence before me that D.W. had no involvement with the child, and he only became engaged with attempting to secure something in the nature of access to the child in the summer of 2012. Mr.

Hickson attempted to arrange for meetings with

D.W.. D.W. failed to show up at one of the intended meetings to discuss matters. The meeting that was set up, as I understand it, was on July 25th, 2012. Thereafter, D.W. indicated that he had family commitments owing to his mother being sick in Victoria. [ 14 ] Mr. Hickson had also made D.W. aware of the court process and had suggested back in November 2011 that D.W. obtain some independent legal advice. D.W. did not follow through with that suggestion. His explanation is that he was unaware as to how to get legal assistance.

It was not until early July 2012 that D.W. started to take some active steps in order to gain access or to discuss access to the child. [ 15 ] In addition to the meeting of July 25th, 2012, there was a family mediation. D.W. did not show up, but his legal counsel did show up on his behalf. Again, there were suggestions in the evidence that it was a matter of family priorities and, in particular, the illness of D.W.'s biological mother that prevented him from being in attendance. [ 16 ] The matter proceeded to come before the courts in mid-August of this year.

D.W. did not attend, but on August 13th, 2012, his counsel sought an adjournment of the matter before me. That application was put over, as I understand it, to August 20th, 2012, and the request for the adjournment was denied at that point. [ 17 ] In the meantime, D.W. had contacted a supervisor, Ms. Raine, at the Ministry office concerning access. A meeting was set up on August 29th, 2012, with Ms. Raine. D.W. failed to attend, but did leave a message to the effect that he was in Victoria dealing with his mother's illness. That meeting was rescheduled on August 31st, 2012. Again, D.W. failed to show up.

The evidence of D.W. is that he did not make any further attempts to contact Ms. Raine or to set up further meetings. [ 18 ] The matter has proceeded to today's date. D.W., as I previously indicated, has consented to the continuing care order proceeding and admits that he does not have the ability to care for the child himself; but he is seeking an opportunity to establish access to the child through an order under s. 56 of the Act . [ 19 ] The situation with respect to the child is that the Plan of Care would see the child remain in the care of Mr. and Mrs.

H., who essentially have served as the custodial parents of the child for an extended period of time. Mr. and Mrs. H. have expressed to the Ministry that they are interested in proceeding with an adoption of the child. Mr. and Mrs. H. have been approved as foster parents, but have to go through a separate process for approval as adoptive parents.

They are aware, of course, of the child's special needs and have obviously, in the view of the Ministry, dealt in a most satisfactory manner with those special needs for the entire duration of the child's life. [ 20 ] At this point the evidence I have before me is that both the Ministry and Mr. and Mrs. H. are open to an arrangement which would allow the mother continuing contact with the child so long as it meets the needs of the child.

There is a consensus on the part of the Ministry as well as the H’s that they would continue to work with the mother, notwithstanding some of the difficulties that have been encountered by both the Ministry and I presume the H’s in dealing with the mother due to some of her challenges. However, the concern of both the H’s and the Ministry is that the continuing access order meets the needs of the child and presents no safety concerns for the child. [ 21 ] There is also an indication by the Ministry through the evidence of Mr.

Hickson that they, being the Director and the Ministry, would be prepared to incorporate access arrangements for D.W. However, there are some significant impediments for them to make any firm commitment to him at this point. Those impediments are that he is an unknown entity to them. They do not have much in the way of information about or from him.

He has not utilized his opportunities to meet with officials of the Ministry for the purposes of attempting to provide the required information which the Ministry feels is essential for them to do their due diligence and to determine whether it is both in the best interests of the child and whether or not there are any concerns about safety as far as the child is concerned. [ 22 ] D.W. faces several challenges in his own right. He is age 26. He indicates that he has attained a university degree from [deleted for publishing].

He admits that he had very little in the way of contact with the mother once he learned that the mother was pregnant with the child. He had no involvement with the birthing or the raising of the child. In fact, he has had no contact with the child whatsoever. He did testify that he made some attempts to see the child by contacting the H’s. However, much of his evidence is quite uncertain as to times, dates, and discussions that took place. [ 23 ] Part of this he attributes to a head injury that he sustained some time ago as a result of a motorcycle accident.

He indicates that the accident took place about three years ago and occurred while he was a passenger on a motorbike. He says it has reduced his long- term memory and he also has short-term memory problems. He also indicates that he had similar type problems prior to the motorcycle accident. He also does have some issues with attention deficit and hyperactivity. He claims to be autistic. But he has not been seeking any medical assistance for these issues.

He has not followed up to receive any care regarding his head injury. [ 24 ] He generally strikes me as a person who has not been successful at taking steps in order to deal effectively with problems that he faces. That is not to say that he is not a caring individual, but he certainly has not taken steps that give me a great deal of confidence that at this point he is able to look after all of his various needs. He admits that he is unable to care for the child.

But I have significant concerns that he is not taking adequate steps in order to deal with his own issues and to get on to a consistent form of treatment or to be consulting with required professionals. [ 25 ] That said, he has expressed an interest in seeing the child and being part of the child's life, and he believes that it would be in the child's best interests that there be an access order which would permit him to have supervised access to the child. [ 26 ] He has, through his friend, E.B., being the mother of four children, ages seven, five, three, and two, gained experience in interacting with children.

E.B. speaks favourably of that ability, and she also indicates that he has been regular and reliable when it comes to showing up and meeting with her and her children. She is confident that he has good parenting skills, as evidenced by the interaction with her own children. [ 27 ] In essence, at the end of the day the Director's submission is that the evidence before me indicates that D.W. has failed to follow through on several occasions when dealing with the Ministry and with bringing forward his request for access to the child, either

at the court level or through the Director. He has permitted or has made issues concerning such things as his mother's illness or the death of his foster mother priorities. He has not put this matter forward as a priority. The Ministry questions the level of priority that he is assigning to his access to the child and says that his application is premature. [ 28 ] There is evidence before me on the basis of what D.W. has said that he is a one-time user of cocaine.

He has been involved in domestic violence situations with another person, and he admits that he is not taking treatment for his medical and mental health issues and also his head injury which have gone mostly untreated. The Ministry says that he is essentially an unknown entity and that the Ministry has not been given the opportunity to do their due diligence.

The lack of follow-through is certainly in contrast to the follow- through that D.W. has had involving his family members and E.B. [ 29 ] The position advanced on behalf of D.W. is that it is in the best interests of the child for there to be an order granted giving him access. In that regard reliance is placed on our Court of Appeal decision in A.M. v. British Columbia , cited at 2008 BCCA 178 .

In that particular case the court specifically, at paragraph 23 of the decision, sets out that the best interests of the child are the key factors that the court must take into consideration when considering access and that those considerations are set out under s. 4 of the Act . [ 30 ] According to the father, that decision is authority for the proposition that the principle of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having regard to all the other relevant factors. [ 31 ] However, it is the position enunciated on behalf of the father that there has been a failure on the part of the Ministry to adequately reach out to the father in order for him to have had the opportunity to build the relationship and to exercise the access. [ 32 ] I am not satisfied that the father has done what he should have done up to this stage in order to deal with the access issue.

I am satisfied that the Ministry has taken reasonable steps in order to try to make that available to him. The question is whether they could have done more? The short answer is they probably could have, but there did not seem to be what I would view as an adequate response on the part of the father to deal with pursuing the access issue in a reasonable fashion. [ 33 ] Accordingly, I am of the view shared by the Ministry at this point that it is premature for me to be making an order under s. 56 of the Act . I am not satisfied that if I make the order that it is in the best interests of the child.

I am also not satisfied that the making of that order is necessarily consistent with the court Plan of Care which has been filed in this matter and the future plans for the child that the Ministry has developed with the assistance of the existing foster parents and the potential adoptive parents. [ 34 ] Having regard to that, I am going to make the continuing custody order as sought by the Director.

I am also going to decline to make an access order under s. 56 at this time. [ 35 ] However, I am of the view that there is still sufficient time for the father to take the necessary steps in order to meet with the Ministry and to work with them in order to deal with access in the short term to the child. That will require him meeting with the Ministry and taking the foundational steps that are necessary before a plan of access can be put in place.

Once that is done, it is then open to the father to bring on a further application that is available to him under s. 56, in order to secure access to the child, in a fashion more consistent with the best interests of the child in the circumstances and to be more consistent with the Plan of Care that is before me. [ 36 ] Accordingly, I will make the order being sought by the Ministry, without making an order under s. 56.

It is open to the father to come back once he has made his arrangements with the Ministry in order to permit them to deal with their due diligence concerns. [ 37 ] I will not seize myself particularly of this matter for further applications.

However, in the short term, I am going to say for the next three months, if there are concerns arising about the ability to move forward with access to the child by the father, then I will seize myself of any interim applications that the father may wish to bring forward to deal with any issues that cannot be resolved between the Director and the father, for the purposes of doing the foundational work leading to a more regularized form of access. [ 38 ] There will be an order accordingly. I will ask Ms. Greves to draft the order.

That concludes my reasons with respect to this particular matter. (REASONS CONCLUDED)