Director v. R.J.D. and P.R.S. Date:, 2014 BCPC 347

Citation: Director v. R.J.D. and P.R.S. Date: 20140723 2014 BCPC 0347 File No: 9365 Registry: Prince Rupert 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 CHILDREN: R.D.S. , born (D.O.B.) L.A.D. , born (D.O.B.) BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: R.J.D. AND P.R.S. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Director: K. Whonnock Counsel for the Parent: J. Kenecan Place of Hearing: Prince Rupert , B.C.

Date of Hearing: May 29 and July 23, 2014 Date of Judgment: July 23, 2014 [ 1 ] This matter came before this Court on May 29, 2014, for a Presentation Hearing pursuant to s. 35 of the Child, Family and Community Services Act (CFSCA ). Additional evidence and submissions were heard on July 23, 2014. [ 2 ] R.J.D. and P.R.S. (the “Parents”) are the parents of R.D.S., (D.O.B.), and L.A.D., born (D.O.B.) (the “Children”). [ 3 ] On April 21, 2014, at approximately midnight, a social worker for the Ministry for Children and Families (MCFD) apprehended the Children. [ 4 ] The Director seeks an Interim Order pursuant to s.35 (2)(

a) of the CFCSA directing that the Children remain in the custody of the Director until a Protection Hearing. [ 5 ] The Parents seek the return of the Children, possibly with a supervision order in place. EVIDENCE AT THE HEARING Director’s Evidence [ 6 ] The Director called Ms. Cloutier, the social worker assigned to the family, to give evidence at the Presentation Hearing. Ms. Cloutier is the author of the Report to Court, Form A included in the Exhibits filed at the hearing. She gave evidence about the history of the family with MCFD. [ 7 ] The Court also heard from Ms.

Samuels, a social worker, familiar with the family. [ 8 ] On July 23, 2014, at the continuation of this matter, the Director applied to reopen its case to provide the Court with additional evidence regarding events that have come to light since the hearing was commenced in May. That Application was granted and the Court heard from Yvonne Shaw, a family service team leader with MCFD.

History of P.R.S. / R.J.D. family with MCFD [ 9 ] The interaction between the family and MCFD began in March 2010, when MCFD received a report that P.R.S. sent a text message to the caller saying that R.J.D. was very angry with her and that she was afraid he was going to beat her up. R.J.D. was arrested. Social workers followed up with the family and offered supports. There is no indication whether those supports were accepted, but the incident was closed. [ 10 ] The following month, MCFD was notified by the RCMP that R.J.D. had assaulted P.R.S., and he was arrested. R.J.D. attempted suicide while in custody.

Services were again offered to the family. [ 11 ] The family moved away to Terrace from Prince Rupert, and then back again to Prince Rupert. R.D.S. would have been only a few months old at this point. [ 12 ] The next interaction involving MCFD was in May, 2012. MCFD received a report that P.R.S. was “going nuts” and assaulting R.J.D.; the caller was concerned for R.D.S. (I note that, at this point in time, R.D.S. would have been just over 2 years old, and P.R.S. would have been pregnant with L.A.D.) P.R.S. was reportedly hitting R.J.D. and throwing his things out of their home.

The matter was investigated and “no s. 13 concerns were noted”; as a result, the incident was closed. [ 13 ] Approximately two weeks later, MCFD was contacted by the RCMP as a result of a complaint that P.R.S. was assaulting R.J.D. A warrant for P.R.S.’s arrest was outstanding, and when police attended the family home, P.R.S. was arrested.

MCFD received a report that R.J.D. had again threatened to kill himself, but when R.J.D. moved to Terrace the incident was closed. [ 14 ] The next MCFD involvement with the family was in October 2013, when a caller reported to MCFD in Terrace, where the family was then living, that R.J.D. had sent a text message saying he wanted to kill himself because P.R.S. had been sending nude photos of herself to other men. When he was interviewed by Michelle Gordon, a social worker, he said he wanted to kill himself and his children and was “questioning which child to kill first”.

He was admitted to the Psychiatric Ward at Prince Rupert Regional Hospital and social workers attempted to create a safety plan for the family. [ 15 ] In December 2013, the RCMP and MCFD were again involved with the family due to an altercation between P.R.S. and R.J.D.’s sister. P.R.S. moved away from Terrace and back to Prince Rupert. [ 16 ] In March 2014, MCFD received a report that R.J.D. was seen leaving the family home in Prince Rupert screaming and yelling and drove away in an uninsured car. Social workers attended and worked with P.R.S. to make a safety plan.

The plan was that P.R.S. would stay with her brother-in-law until social workers were able to locate and speak with R.J.D. P.R.S. did not abide by that plan. She returned to the family home and refused to let social workers into the home. She told them that she was allowing R.J.D. to visit the Children. [ 17 ] On April 10, 2014, MCFD received a report from the RCMP that there had been a domestic dispute between P.R.S. and R.J.D. with the Children present. R.J.D. was arrested and taken to Police cells. Social workers Beynon and Mastroianni visited the home.

During the visit, R.D.S. (I note he was then aged 4) told Ms. Beynon that “Daddy is going to kill himself” and “Daddy wants to die, he wants to kill himself.” P.R.S. told the child to “stop saying that” and she told Ms. Beynon “he keeps saying that all the time.” The safety plan then put in place was that P.R.S. and the Children would move to a transition house, and the social workers took them there.

[ 18 ] The following day, social workers interviewed R.J.D. at the hospital where he had been taken because he had expressed suicidal ideation. The social workers made a verbal safety plan with R.J.D. for him to go to live with his mother in Terrace. R.J.D. agreed to take counselling to address domestic violence in the presence of the Children and his escalating suicidal ideation.

On April 12, 2014, R.J.D. went to Terrace. [ 19 ] There is no evidence before me indicating that R.J.D. has followed through in his agreement to take counselling to address his issues, and indeed he has since informed social workers that he does not require counselling. [ 20 ] The social workers began planning for visiting arrangements over the Easter weekend. The report to Court indicates that both parents were verbally informed that if R.J.D. returned to the family home and the Children were present, the Children would be apprehended.

There was also a written Safety Plan (Exhibit 3) which provided that P.R.S. would not allow R.J.D. into her home, that R.J.D.’s access to the Children was to be supervised at the discretion of the Director, and that each of them would ensure that no one under the influence of drugs or alcohol would be in the presence of the Children. The Report to Court also indicated that the parents were told that if they were together in the presence of the Children, the Children would be apprehended. [ 21 ] The Court also heard from Maureen Samuels, who gave evidence by telephone from Haida Gwaii.

She is another social worker who worked with the family. Ms. Samuels read the written Safety Plan to P.R.S. and then arranged for the document to be given to R.J.D. [ 22 ] She and other social workers arranged for R.J.D. and his mother to come to Prince Rupert by bus and stay in a hotel so that he could visit the Children under the supervision of his mother. MCFD paid for the bus tickets each way and the hotel room. [ 23 ] Ms. Samuels testified that she told each of the parents that they could not be in each other’s presence if the Children were present. Ms.

Samuels also facilitated the visits during the weekend by the Children with R.J.D. at the motel, supervised by his mother. She invited P.R.S. to come with her in the vehicle when the Children were being taken to visit their father, so that the Children would not be alarmed. However, she told P.R.S. “there can be no contact, if you are coming with me to facilitate contact, you can’t make contact with [R.J.D.].” P.R.S. did come with Ms. Samuels to facilitate the visits, and did remain in or at the vehicle when the Children were taken up to the motel room by their grandmother.

She was present for two visits in which the same plan was followed. [ 24 ] The Safety Plan made by MCFD workers for the Easter weekend visit included the provision that R.J.D. would return to Terrace with his mother. He was supposed to leave April 20, 2014. However, R.J.D. did not leave Prince Rupert and return to Terrace with his mother. He stayed in Prince Rupert. [ 25 ] On April 21, 2014, Ms. Samuels happened to be driving her car in the downtown area of Prince Rupert when she saw P.R.S. and R.J.D. and the Children at an intersection, waiting for the light to change.

P.R.S. was pushing L.A.D. in the stroller and R.D.S. was standing on his own. R.J.D. was standing with them. Ms. Samuels immediately stopped and went to them and said “you know you are not to be together, there is a no contact” or words to that effect. R.J.D. replied “You have no right to keep us apart.” P.R.S. said, “Oh, I want that supervision removed, want it to stop, so that me and [R.J.D.] could be together.” According to Ms. Samuels, R.J.D. became angry as she spoke with them, so she told them to remain there while she went to make a call. As Ms.

Samuels spoke to her office, R.J.D. left, going down the street and P.R.S. left with the Children, going up the street. When she finished her call, Ms. Samuels looked for P.R.S., but could not find her or the Children. Ms. Samuels was unable to continue her involvement at that time because she was ill. [ 26 ] As a result of Ms. Samuels’ observations, other social workers for MCFD attended the family home looking for P.R.S. and the Children. They were not at home.

While they were at the residence, they received a call from the RCMP advising that they had received a report that R.J.D. was suicidal; about 30 minutes later he was in police custody. Social workers interviewed him there, informing him of their intention to apprehend the Children due to domestic violence concerns.

At that time R.J.D. told social workers Mastroianni and Carignan that P.R.S. had hit him on the head with a broom stick and split his head open on an earlier occasion, when the Children were present. [ 27 ] At approximately 11 p.m., social workers again attended the family home and found P.R.S. there with the Children. The Children were apprehended.

P.R.S. was informed that the Children were removed due to the domestic violence in the presence of the Children, R.J.D.’s mental health, and the fact that they had breached the Safety Plan by being together in the presence of the Children. [ 28 ] Since the Children were apprehended late at night, no efforts were made that night to find a family member to take the Children. However, since then R.J.D.’s mother has come forward and offered to take the Children. Ms. Cloutier testified that she does not feel that R.J.D.’s mother is a suitable placement, due to concerns about her drinking.

It was R.J.D. himself who commented “oh she must be drinking” to explain his mother’s unavailability when attempts were made to contact her. [ 29 ] Ms. Shaw provided additional evidence about events that have come to light since the last hearing date on May 29, 2014. She told the Court that MCFD has received additional reports from the RCMP concerning the behavior of R.J.D. and P.R.S. On May 21, 2014, R.J.D. reported to the RCMP that P.R.S. was suicidal after an argument between them, and that he was homeless.

When the police located P.R.S., her home smelled of marijuana and P.R.S. was apparently under the influence of that substance. In a subsequent meeting with Ms. Shaw on June 5, 2014, R.J.D. was angry, blaming the apprehension of the Children on P.R.S.’s family and stating that he did not require counselling. He behaved in an angry and threatening fashion, drawing imaginary lines on the floor and warning Ms. Shaw not to cross it. He stormed out of the meeting. P.R.S. remained extremely withdrawn during the meeting, saying nothing and not making eye contact. According to Ms.

Shaw, this behavior is typical of the meetings with the couple. [ 30 ] On June 21, the RCMP again contacted MCFD out of concern for the welfare of the Children, because R.J.D. had reportedly broken a window at home and stormed out of the home carrying the Children’s blankets formed into a noose, stating “I don’t care, they won’t find me.

I’ll be gone before they do.” The following day the police attended the family home with R.J.D. to keep the peace while he collected some belongings. [ 31 ] On July 9, 2014, police again attended the residence, this time due to a complaint of an intoxicated woman screaming and breaking windows. The police found P.R.S. in an intoxicated state and took her to cells. In her evidence, P.R.S. confirmed that she was

very intoxicated, having consumed approximately 30 beers, but says that although she was trying to break the windows, she had not succeeded in doing so. [ 32 ] Ms. Shaw also testified that she was contacted by the foster parent who is caring for the Children. The foster parent expressed concerns and was seeking help for R.D.S. as a result of a late night event. Apparently the Children were in bed and the foster parent believed them to be asleep. She heard a thump and investigated, to find R.D.S. crawling across the floor of the darkened bedroom.

When she asked why he was crawling, he responded that he had to go to the bathroom, but he was afraid to go because he was scared to turn on the light. He said “Daddy gets mad, he doesn’t want the lights”, and spontaneously said “Daddy is going to hang himself.” The foster parent is seeking assistance with how to help R.D.S. who is apparently fearful of his father. Evidence of P.R.S. [ 33 ] P.R.S. gave evidence at the hearing. She testified that she did not read the written Safety Plan and that some of it was read to her. She testified that she told Ms.

Samuels that she did not want to have supervised visits with R.J.D. and the Children, the day she signed the written Safety Plan, and she is not sure what Ms. Samuels said. She said that she did not understand the Safety Plan, but did not tell Ms. Samuels that. She said that she “thought it would be about him being with his mother while seeing our children.” [ 34 ] P.R.S. agreed that she attended in the vehicle with Ms. Samuels on the Easter weekend visits and remained at the vehicle when the Children were taken to visit R.J.D. by their grandmother.

In her evidence on July 23, 2014, when asked whether she got out of the vehicle, she answered “yes, because he [R.J.D.] was in the hotel. His mother came down to get the children.” [ 35 ] P.R.S. said that on April 21, 2014, she had been with the Children at the park, and they were walking down McBride about to cross the street to go to Safeway, when she and the Children saw R.J.D. cross the street to approach them. She said she did not plan to meet him that day. She said that “We started talking about the Safety Plan and what it was about and why we had a Safety Plan.” She said that when she was confronted by Ms.

Samuels, Ms. Samuels told her that “if I didn’t tell her where I was going she would take my kids” and so she stood there for a minute and then started walking, going first to visit her mother and then she went home. [ 36 ] In her evidence given on July 23, 2014, P.R.S. added that she had been walking and talking with R.J.D. for at least five minutes when they were approached by Ms. Samuels. She said that Ms. Samuels reminded her at that point of having told her on April 19 th that if she was with R.J.D. together with the Children they would be taken away, but she told the Court she does not remember Ms.

Samuels telling her that on April 19 th . [ 37 ] She said that she attended counselling once and that the counsellor “saw no problems with myself and [R.J.D.],” but that if the Ministry wanted her to take counselling she would. [ 38 ] When asked by her counsel whether she would comply with a condition that R.J.D. is not to be alone with her and the Children, she replied, “I don’t like the fact of that”; when asked again whether she would comply with such a condition, she remained silent for a period of time, and eventually answered, when prompted, “it is quite hard for me to do it by myself” and when further questioned, said that there was no one in the community to help her out.

She then broke down in tears. [ 39 ] On July 23 2014, upon further questioning by her counsel, she told the Court that R.J.D. moved out of their home about three weeks ago, but paradoxically, that she took his key away from him about two months ago. She said that she does smoke pot, usually when she feels stressed, but believes that she can stop if the Children come back. She is now working at (omitted for publication) full time in order to pay the rent at the three bedroom townhouse she lives in.

With her earnings from (omitted from publication), she is able to pay her rent and is paying down what she owes, noting that her Hydro was disconnected for a while (presumably for non-payment). She says that if the Children were given back to her, she would continue working and that her mother and her auntie would help with childcare. [ 40 ] With respect to the incidents referred to by Ms. Shaw, P.R.S. said, with reference to the May 21 st incident, that she had in fact threatened to commit suicide, but that she did not attempt to do it, and she went for a walk.

Under cross-examination, she candidly admitted that she had threatened to commit suicide at other times, but R.J.D. had only reported it to the police that time.

In reference to her threats of suicide, she said “that is not a problem for me.” P.R.S. also admitted drinking approximately 30 beers on the July 9 th incident, explaining that she felt overwhelmed by everything that had been going on. [ 41 ] P.R.S. also says that she always left a light on for the Children because they are afraid of the dark, and that she bought a nightlight for them shortly before they were apprehended. [ 42 ] With respect to the October 2013 incident, during which R.J.D. threatened to kill himself and his Children, P.R.S. admitted that she had in fact sent nude pictures of herself to a person named C., because she had discovered that R.J.D. was having a relationship with another woman. [ 43 ] Under cross-examination, P.R.S. told the Court that she had broken up (and reconciled with) R.J.D. about 30 times.

She admitted hearing R.D.S. say “Daddy’s going to kill himself” and that she has heard R.J.D. threatening to kill himself. She said that there was a lot of domestic violence with R.J.D. and there have been times that she has hit him. She says that she smokes marijuana whenever she can, but that in the last three weeks it has just been at night after work before she goes to sleep. She adds that it has been every couple of days because she doesn’t have much money to buy it. POSITIONS OF THE PARTIES P.R.S.’s Position [ 44 ] P.R.S.’s position appears to be the following:

a) The oral safety plan requiring that P.R.S. not be in the presence of R.J.D. in the company of the Children did not exist, because if it had, it would have been written down in the written Safety Plan. It follows that the evidence of Ms. Samuels in that regard must be false;

b) P.R.S. did not understand that the Safety Plan for the family required that she not be in the presence of R.J.D. with the Children;

c) P.R.S. did not understand the written Safety Plan that R.J.D.’s access to the Children was to be supervised at the discretion of the Director; and,

d) her encounter with R.J.D. on April 21 st was unplanned and of short duration so she did not intentionally breach the Safety Plan; therefore, the Children should not have been apprehended and in any event should be returned to her. [ 45 ] Her position is that the safety of the Children can be assured by returning the Children to her under a supervision order that would include a condition that she not be alone with R.J.D. while in the presence of the Children, or that R.J.D. have no contact with the Children and various other terms, including counselling.

R.J.D.’s Position [ 46 ] R.J.D. did not testify at the hearing. During the hearing, he interrupted proceedings to tell the Court that he was “giving up” and giving custody to P.R.S. and he left the courtroom.

The Director’s Position [ 47 ] The Director takes the position that because of the family violence perpetrated by both P.R.S. and R.J.D. upon each other in the presence of the Children, R.J.D.’s mental health issues, his repeated threats of suicide, attempts at suicide, and threats to kill the Children, the Children are at risk of harm. [ 48 ] The Director takes the position that there is no less disruptive measure available (other than apprehending and retaining interim custody of the children) because R.J.D. and P.R.S. have failed to comply with the Safety Plans put in place for the protection of the Children.

In particular, the Director says that P.R.S. and R.J.D. were well aware that a condition of the most recent Safety Plan was that they not be together in the presence of the Children and that they did not comply with that condition, knowing that the Children would be apprehended if they did not comply. [ 49 ] In the view of the Director, both R.J.D. and P.R.S. have demonstrated that they will not abide by conditions put in place to keep the Children safe, leaving the Director with no alternative but to apprehend the Children and retain them in care unless and until R.J.D. and P.R.S. demonstrate that they will abide by Safety Plans.

The Director has considered the possibility of placing the Children with R.J.D.’s mother, the only family member who has come forward, but is unable to approve her as an interim placement because of concerns, raised by R.J.D., about her drinking. [ 50 ] The Director says that nothing has changed since the apprehension to reduce the risk to the Children; rather, R.J.D.’s threatening and aggressive behaviour has escalated to the point that he is now banned from personal attendance at the MCFD office, and P.R.S. has demonstrated her own issues with suicidal ideation and substance abuse, while taking no further steps to address her issues through counselling or otherwise.

Although it appears that P.R.S. and R.J.D. are currently separated, the submission is essentially that the court cannot rely on that fact as reducing the risk to the Children, given the multiple breakups and reconciliations this couple has undergone in the past. LAW [ 51 ] I must consider the guiding principles in s. 2 of the CFCSA , as follows: Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance 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 rests primarily with the parents; (

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

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. [ 52 ] S. 4 of the CFCSA provides the factors the court must consider when considering the best interest of the child, as follows:

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child'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. [ 53 ] S. 13 of the CFSCA provides a number of circumstances in which a child is deemed to be in need of protection, including: 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; ( 1.2 ) For the purpose of subsection (1) (

a) and (

c) but without limiting the circumstances that may increase the likelihood of physical harm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides. [ 54 ] S. 30 of the CFCSA provides the director with the authority to remove a child from its parents, under certain circumstances: 30

(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that (

a) the child's health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child. [ 55 ] S. 35 of the CFCSA provides that: 35

(1) At a presentation hearing relating to the removal of a child under

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

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

b) an interim plan of care for the child, including, in the case of an aboriginal child, the steps to be taken to preserve the child's aboriginal identity, and (

c) information about any less disruptive measures considered by the Director before removing the child.

(2) At the conclusion of the hearing, the court must make (

a) an interim order that the child be in the custody of the Director, (

b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the Director, (

c) an order that the child be returned to or remain with the parent apparently entitled to custody, or (

d) an interim order 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.

[ 56 ] The test to be applied at a Presentation Hearing was stated by Mr. Justice Halfyard in Director v. M.H. 2008 B.C.S.C. No. 2701 , at para 35, as follows: [38] In K.M.T. v. J.D.T ., Tweedale P.C.J. reviewed several authorities andattempted to define what is required to justify an order for interim custody to the director at a presentation hearing. He settled on a test which is analogous to the test for committal on a preliminary inquiry into a criminal charge. The relevant discussion is at paras. 17 – 20, but the key statement is at par. 17, where Tweedale, P.C.J. states: 17.

In my view, I am required to grant an order for interim custody to the director where there is admissible evidence at the presentation hearing which, if believed by the protection hearing judge, could lead to a finding that J.M.T. is in need of protection. [39] In my opinion, Tweedale P.C.J. correctly stated the test for whether or not a protection hearing should be ordered (following a presentation hearing). But I think that the justification for ordering a protection hearing is far different than the justification for an order granting interim custody to the director.

I think Tweedale P.C.J. may have gone too far, in the sense that he appears to draw no distinction between the justification required for each of the two orders. [ 57 ] Mr.

Justice Halfyard distinguished the test to be applied by the court on the issue of whether to order a Protection Hearing (some evidence to support the contention that a protection hearing is required) from the question of whether to grant interim custody to the Director, and stated: [44] It will be apparent that I do not accept the contention that, once the judge finds that “any appreciable risk of harm” exists at the time of the presentation hearing, an order for interim custody to the director is inevitable.

As I have said, I think the judge must assess the degree of risk, and then decide whether or not that risk can be addressed by returning the children to the parents, under the supervision of the director. [ 58 ] On the issue of whether to grant interim custody of the child to the Director, Mr. Justice Halfyard stated the following, at para 40: [40] My reading of the Act and the authorities lead me to conclude that a provincial court judge presiding at a presentation hearing may make an order granting interim custody to the Director, where he or she is satisfied:

a) First, that at the time a child was removed, there were objectively reasonable grounds to believe that the child was then in need of protection, and that either the child’s health or safety was in immediate danger, or no other less disruptive measure that was available was adequate to protect the child;

b) Second, that at the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the two essential elements required by s.30(1) of the Act continue to exist; and

c) Third, that in the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is of sufficient magnitude to require that the child be kept in the interim custody of the Director, pending a protection hearing. [ 59 ] In the event of a conflict in the evidence, any disputed facts must be resolved, at this stage, in favour of the Director: Director v. M.H. 2008 B.C.S.C. No. 2701, at para 34.

ANALYSIS [ 60 ] Having reviewed the evidence, I am satisfied that there was, in addition to the written Safety Plan, an oral direction made to both R.J.D. and P.R.S. that they could not be in each other’s company in the presence of the Children. The behaviour of all parties is consistent with the existence of such a direction. If there were no restriction placed on R.J.D. and P.R.S. being together in the presence of the Children, then Ms.

Samuels would not have gone to such lengths, in the arrangement of the Children’s visits with R.J.D., to ensure that P.R.S. and R.J.D. remained apart, including requiring P.R.S. to remain at or in the vehicle when the Children went to visit their father. [ 61 ] P.R.S. agrees that she attended in the vehicle with Ms. Samuels on the Easter weekend visits and remained at the vehicle when the Children were taken to visit R.J.D. by their grandmother. In particular, I note that when asked whether she got out of the vehicle, she testified “yes, because he [R.J.D.] was in the hotel.

His mother came to get them.” In my view, that evidence and that behaviour is consistent with the belief that she had been instructed to have no contact with R.J.D. in the presence of the Children. If there were no such instruction, there is no reason that she would not have attended R.J.D.’s visits with the Children. [ 62 ] Secondly, Ms.

Samuels testified that when she confronted P.R.S. and R.J.D. at the intersection on April 21, 2014, P.R.S. said words to the effect of “I want that supervision lifted, so [R.J.D.] and I can be together.” Those remarks, if made, are consistent with a belief, on the part of P.R.S., that she and R.J.D. were bound by a direction from MCFD that she and R.J.D. were not permitted by MCFD to be in each other’s presence while with the Children, not a belief that it was perfectly OK for them to be together. [ 63 ] Thus, it follows that I am satisfied that P.R.S. knew, at the time, that there was a direction from Ms.

Samuels that she and R.J.D. were not permitted to be together in the presence of the Children, her current lack of memory notwithstanding.

It may be that P.R.S.’s admitted regular use of marijuana has had an adverse impact on her memory. [ 64 ] Similarly, R.J.D.’s remarks to the effect of “you have no right to keep us apart” are consistent with his refusal to comply with the direction by MCFD workers that he have no contact with P.R.S. while in the presence of the Children, just as his continued presence in Prince Rupert at that point indicated his refusal to comply with the arrangements made by MCFD for his return to Terrace. (There is no dispute that the Safety Plan for the family contemplated that R.J.D. reside in Terrace with his mother, which was the reason that MCFD was put to the effort and expense of paying for a hotel and return transportation so that R.J.D. and his mother could come to Prince Rupert to visit the Children.)

[ 65 ] Further, regardless of the terms of the “oral direction”, it is undisputed that the written Safety Plan specified that R.J.D.’s access to the Children was to be supervised at the discretion of the Director. P.R.S. testified that she told Ms. Samuels on the day she signed the written Safety Plan that she did not want to have supervised visits with R.J.D. and the Children, and she is not sure what Ms. Samuels said.

Therefore, it cannot be said that P.R.S. did not know about that provision or that she did not understand it, since she clearly understood it well enough to disagree with it. [ 66 ] It is not suggested by any party that P.R.S. was a supervisor approved of by the Director, nor does P.R.S. suggest any belief on her part that she was approved to supervise R.J.D.’s visits with the Children. However, there is no doubt that Ms.

Samuels found R.J.D. in the presence of the Children without any supervision approved of by the Director on April 21, 2014, and there is evidence that P.R.S. knew that was contrary to the Safety Plan because she told Ms. Samuels on that occasion that she wanted the supervision lifted so that she and R.J.D. could be together. [ 67 ] In any event, any such disputed facts must be resolved in favour of the Director at this stage of the proceedings: Director v. M.H. 2008 B.C.S.C.

No. 2701, at para 34. [ 68 ] It follows that I am satisfied for the purposes of this hearing that it was a condition of the Safety Plan for this family that R.J.D. and P.R.S. have no contact with each other in the presence of the Children and that they both knew that. [ 69 ] P.R.S. advances the proposition that the meeting with R.J.D. was by chance, and of short duration; essentially, that the meeting was accidental and unintentional. While that might be the case, there is certainly no evidence that she had made, or was making any effort to leave R.J.D.’s presence after they met.

Her evidence in Court (to the effect that they spoke for at least five minutes before they were confronted by Ms. Samuels, and that they were speaking about the Safety Plan) and her comments to Ms. Samuels when confronted, suggest the contrary.

Thus, I am not satisfied that P.R.S., unless under the watchful eye of an MCFD worker, had any intention to comply with the “no contact” condition of the Safety Plan. [ 70 ] Further, while giving her testimony, P.R.S. was asked repeatedly by her counsel whether she would comply with a direction to have no contact with R.J.D. when in the presence of the Children, to which she responded in a manner that could not, even by the most generous

interpretation, be considered affirmative.

P.R.S. first responded that she “did not like the fact of that” and when pressed, remained silent for a significant period, and when further pressed, responded only that “It is quite hard for me to do it by myself” and then broke down in tears. [ 71 ] The most I could take from her answers is that it is hard to her to manage the Children without R.J.D.’s help, from which I infer that she is unwilling, or unable to comply with a condition that she not be in the company of R.J.D. with the Children. [ 72 ] P.R.S. is similarly unable to see that the history of violence between her and R.J.D. poses a problem for the physical and emotional safety of the Children.

She says, somewhat ambiguously, and ambivalently, that she is willing to take domestic violence counselling “if I can”, but she appears to see no need for it, and rather improbably claims that Ms.

Decker, the counsellor she visited once at the urging of her social worker, “saw no problems with her and [R.J.D.].” DECISION [ 73 ] Based upon the evidence presented to me at the Hearing by both the Director and P.R.S., I conclude that P.R.S. is unable or unwilling to comply, at this time, with any conditions imposed by the Director for the safety of the Children. [ 74 ] Similarly, based upon the evidence presented to me at the Hearing with respect to R.J.D.’s conduct, I conclude that R.J.D. is unwilling to comply with any direction placed upon him for the safety of the Children, whether that is to reside in Terrace, have supervised access, take counselling to address his violence and mental health issues or not be in contact with P.R.S. while in the presence of the Children. [ 75 ] In my view, there was evidence presented at the Hearing before me which, if believed, could cause a Protection Hearing judge to find that the Children were in need of protection at the time of their apprehension and remain so.

R.J.D. had made threats the previous October to kill himself and his children. Further, on April 10, 2014, police were called due to a complaint of a domestic dispute involving R.J.D. and P.R.S. in the presence of the Children, as a result of which R.J.D. was arrested. On that occasion, the oldest child, R.D.S., repeatedly told social worker Beynon, “Daddy is going to kill himself”. In my view it is unlikely that such a small child would make such remarks to the social worker unless he had heard such threats recently or repeatedly.

The logical inference is that R.J.D. had made such threats recently or repeatedly in the presence of the Children. [ 76 ] Further, P.R.S. told social worker Beynon that R.D.S. “is always saying that” and told him to stop saying it. Evidently, R.J.D.’s threats of suicide have made such an impression on this four year old child that he regularly repeats these threats. The additional evidence provided by Ms.

Shaw indicates that R.D.S. continues to repeat these threats and appears to be fearful of his father, with the result that his foster parent has sought help for him. [ 77 ] I am satisfied that the Children were, and are, at risk of harm, both from the repeated violence perpetrated by their parents in their presence, but also by the threats of suicide (and homicide) made by R.J.D. As it turns out, P.R.S. has also made threats of suicide on more than one occasion, as recently as May 21, 2014. These threats are not only words - R.J.D. has made multiple suicide attempts.

Threats of suicide, made by a parent, whether or not made in the presence of a child area are, in my view, grounds for a reasonable person to fear harm to a child because bitter experience has taught all of us that the most likely parent to kill his or her children is a suicidal parent. [ 78 ] However, that is not all. R.J.D.’s threats to kill the Children in the fall of 2013 must be taken seriously. R.J.D. reiterated his suicidal ideation in April 2014 and again on June 21, 2014.

Ominously, in the June 21 st incident, R.J.D. was reportedly carrying a noose which with to hang himself made out of his children’s blankets . I infer from that evidence that his suicidal ideation would appear to be peculiarly connected with his Children. In my view, therefore, the risk of physical harm to the Children posed by R.J.D. (and possibly P.R.S.) is of the most serious kind.

[ 79 ] Threats of suicide, made in the presence of a child are, in my view, harmful to the child simply by the fact that they are uttered. Clearly the threats made by R.J.D. in the presence of R.D.S. have been sufficiently emphatic and detailed that this child has taken them to heart and believes that his father will not only kill himself, but in fact hang himself; in my view, this behaviour, all by itself, has harmed his emotional wellbeing.

The evidence suggests that R.D.S. continues to dwell on these threats and to be fearful of his father. [ 80 ] The evidence satisfies me that aside from apprehending the Children at the time, there was no less disruptive measure that could have been taken by the Director, and unfortunately nothing has occurred in the meantime to change that fact. While I applaud P.R.S.’s efforts to obtain and maintain employment, neither P.R.S. nor R.J.D. have taken any real steps to address the risk they pose to their Children and neither has shown any genuine willingness (or ability) to abide by safety conditions.

No family member has offered to take the Children, aside from R.J.D.’s mother, who is unsuitable due to her own substance abuse issues. [ 81 ] Accordingly, I hereby order, pursuant to s. 35 (2)(

a) that the Children, R.D.S. and L.A.D., remain in the interim custody of the Director pending a Protection Hearing. S. K. Keyes, Provincial Court Judge