CFCSA and The Child H.A. Date:, 2003 BCPC 148

Citation: CFCSA and The Child H.A. Date: 20030403 2003 BCPC 0148 File No: 9448 Registry: Kamloops 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: H.A., born [date] BETWEEN: DIRECTOR OF FAMILY AND CHILD SERVICES APPLICANT AND: C.A. and J.A. PARENTS EXCERPT FROM PROCEEDINGS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. GORDON Counsel for the Director: T.L. Weiss Counsel for the Parents: S.M. Soll Place of Hearing: Kamloops, B.C.

Date of Hearing: April 3, 2003 Date of Judgment: April 3, 2003 [ 1 ] THE COURT: There are a number of issues for determination before the court. These proceedings all relate to H.A., who was born [date]. She is fifteen years of age at this time. H. is what might be described as a difficult adolescent. In fact, her situation gives rise to a greater concern than if she was just difficult to deal with.

She is a young woman who is experiencing profound problems in the course of making her way through her teenage years. [ 2 ] Until just recently, she was doing reasonably well in her schooling and within the community and getting along well within her family home. Her parents seem very capable. I have heard evidence from her mother.

There is nothing to the contrary in any of the materials provided by the Director, save and except for an allegation of assault brought by H. against her father after the child contacted local representatives of the Ministry for Children and Families. [ 3 ] This incident (and I am referring to the contact between the child and the Ministry) took place back in October of last year, some five months ago.

The contact between the child and the Ministry resulted in the child's apprehension and a presentation proceeding, pursuant to the appropriate provisions of the Child, Family and Community Service Act, being brought before the court. At that time the court made an interim order under

Section 35, directing H. be placed into the custody of the Director with reasonable access in favour of the parents. [ 4 ] Now, the parents, and more especially the father, deny the child's complaint of assault that was made to the social workers, although it wasn't an issue in front of me. The mother mentioned observing bruises that the child brought to the social worker's attention as having been seen by her when the child came home to "check in" before going AWOL, again, and shortly thereafter speaking to social workers.

Although I have not made this perfectly clear through that comment, the import of this evidence was that the marks were on the child's neck, from some unknown cause, before she left the family home with her dad, to be driven to get her books and ultimately to her school and as a result they could not have been the result of any assault committed on the child by the parent. [ 5 ] Now, before that

Section 35 order was made and while H. was living in her parents' home, there were major problems being encountered by the parents in their attempt to manage this child. She had acquainted herself with cannabis use. In fact, she was using it frequently. She had quit or been terminated from a couple of schools that she had been attending and she was flirting with far more dangerous drugs than marihuana. She was living an erratic and irresponsible lifestyle. She would quite often absent herself from her parents' home, choosing to keep hours of her own rather than complying with their reasonable requirements and expectations of her.

[ 6 ] The extent of the difficulties being experienced by the child is also revealed through the fact that since the apprehension and her placement in not one, but two foster homes over this five month period that I have mentioned, she has continued to lead, for all intents and purposes, the very same lifestyle and there hasn't been, aside from a temporary period in the first foster home, any significant change in her personal conduct or sense of responsibility. [ 7 ] There was a case conference conducted into this matter and subsequent to that, the parents, along with the social workers representing the Director, have agreed to enter into a

Section 60 consent order.

Section 60 provides that an order can be made without the finding that a child is in need of protection, but only if the consent of all proper parties to the proceeding is indicated in writing.

The difficulty is that the child, H., whom as I say is fifteen and entitled to participate in the proceedings, has chosen not to attend court this morning, although I heard from the mother that she was quite aware of the fact that the proceedings were taking place. [ 8 ] It is suggested to me by counsel in their remarks that the child may not consent to the order that the parents and the Director think is appropriate and that is that H. be placed into the Director's care for a further term of three months, but nonetheless I must say that I am satisfied that if she took that position it would be only to assert her independence and hardly consistent with her overall best interests.

I see that under

Section 6)(3): The court may dispense with any consent required under subsection (1) -- And that is the

section setting out who is entitled to notice and whose consent must be obtained. -- if the court considers it in the child's best interest to do so. Being satisfied to that effect, I am making an order dispensing with the consent of H.A. to the consent order that the parents and the Director have entered into. As a result, then, I am making the consent order that has been spoken to by counsel, namely, that for a period of three months from this date, H. be placed into the custody of the Director with reasonable access in favour of her parents. [ 9 ] Now, the next issue before the court here is -- [ 10 ] MR.

SOLL: That is without a finding of -- [ 11 ] THE COURT: That is without a finding that the child is in need of protection, pursuant to subsection (4) of

Section 60. [ 12 ] MR. SOLL: Thank you. [ 13 ] MR. WEISS: And just to continue, the parents will sign the order? Should that be sufficient, because it has to be written and consent -- [ 14 ] MR. SOLL: They will sign it. [ 15 ] THE COURT: Yes, that's -- [ 16 ] MR. WEISS: I will draft it so that they sign it. [ 17 ] THE COURT: Thank you. The next issue is whether the parents should now be required to contribute financially towards the costs of maintaining H. and whether any amount that might be ordered, this, pursuant to

Section 97 of the Child, Family and Community Service Act , should be made retroactive and, if so, for what period?

Section 97 reads that: A parent remains responsible to contribute to the maintenance of (

a) a child in care; And those are the operative words. Down below, that: (

b) a child in the custody of a person other than the parent under a temporary custody order; (

c) a youth who has made an agreement with a Director under

Section 12.2. Now, the wording of (

b) here has been put to me in support of two arguments; one, that it should be interpreted as the Director's counsel suggests and another that it should be interpreted as the parents' counsel recommends. It would have been helpful for my understanding of what paragraph (

b) was providing if brackets or commas were used at some point throughout the sentence. The meaning of, quote: A child in the custody of a person other than the parent would have been more obvious if the words "other than the parent" were set out in brackets. Obviously, a parent isn't going to start paying themselves and who is acting under a temporary custody order.

Well, it is argued by the parents that the reference to the temporary custody order contemplates an order having been made after a protection hearing and not a presentation hearing because it is only then that temporary custody orders, as opposed to interim custody orders, are made. [ 18 ] With respect, I find the most reasonable

interpretation of

Section 97 to be that the parents, in this case Mr. and Mrs. A., remain responsible to contribute to the maintenance of H. under paragraph (

a) as she qualifies as "a child in care." And, in coming to that conclusion, I look at the definition

section to the Act. First of all, the word "care" is defined as follows: When used in relation to the care of a child by a Director, means physical care and control of the child. Now, of course, it is not just the word "care" that is used in Section 97(1). The phrase is "a child in care" and that phrase is also

described in the definition

section part of

Section 1 of the Act, and "child in care" is defined as: Means a child who is in the custody, care or guardianship of a Director or the Director of adoption. Now, there we see the word "care" again and "care" of course, as I have mentioned, refers to the physical care and control of the child. We also see the word "custody" used and it will be remembered, as I have said, that when an order is made at the presentation hearing it is an order that custody, although interim, be given to the Director.

As a result, there can't be much doubt that H. qualifies as a "child in care" at least from the date of the presentation hearing order that was made in this case -- [ 19 ] MR. WEISS: I can help Your Honour. It is October 23rd. [ 20 ] THE COURT: -- on October 23 of 2002. Now, it's been argued that if this is the

interpretation to be assigned to the section, certain weird situations may result that might serve to drive a wedge between parents, who perhaps have appealed to the Director for assistance with their child or children, and between the parents and the child, as well. Well, I don't see that as a necessary or even hopefully a likely result considering that

Section 97 of the Act gives to the court a discretion to order that a parent contribute towards the costs of maintaining the child while that child is in the care of the Director. [ 21 ] As pointed out by Mr. Weiss, judges in the Family Division who are asked to make orders for child support under the Family Relations Act, and judges of the Superior Court making similar orders under the requirements of the Divorce Act and its regulations, are required to make orders and to make orders for child support in the amount specified by these Child Support Guidelines which for federal or provincial purposes are the same. Now, if that was the scheme that was included within

Section 97, I can see great potential for the harm that is been mentioned by counsel here, and that great difficulties could arise between parents and social workers with whom they should be working to achieve the return of the child to the family home and between parents and the child who may have some spiteful interest in having their parents pay for their support. But that is not the scheme built into

Section 97. Mercifully, the legislature in its wisdom has seen fit to leave judges with the discretion to make an order, or not, and then if the order is to be made, to decide what would be a reasonable amount, considering the items listed in subsection (7) to

Section 97. [ 22 ] Before I take a look at those, I would like to make a few comments on when it is that a court will likely be persuaded to make an order requiring that the parents contribute. It seems to me that child apprehensions occur under a variety of circumstances. I speak from about twenty-four years of experience in this particular job. Sometimes, as we know, parents actually contact the Ministry seeking assistance, if not intervention, from the Ministry in their attempts to properly raise the child.

Oftentimes the parents ask that the child be taken and placed into foster care, so that everybody can enjoy a cooling off period or the like. [ 23 ] There are child apprehensions which, although they may not be initiated by the parents, are in many cases consented to by the parents. Things have got out of control, teachers have become aware of the fact, others concerned for the child are aware, oftentimes relatives.

The matter is brought to the Ministry's attention and apprehension is made and the parents almost breathe a sigh of relief when that happens and, understandably, consent to the child remaining in the Director's care for some period of time while, again, matters are left to cool down and there is a chance for reason to prevail on all sides. [ 24 ] There are situations where a child, on the other hand, is apprehended, where the child is obviously in need of protection from circumstances that prevail within the family home.

There are other occasions when a child is apprehended and just in need of protection for reasons not obviously having to do with the situation in the family home, and there are other occasions when children are apprehended where, for good reason the apprehension is, if not challenged, then at least questioned by the parents.

Well, it seems to me that the circumstances behind the apprehension and the justifiable position of the parents ought to be considered when looking at whether or not an order should be made. [ 25 ] Another consideration here has been mentioned by counsel and that is that it is up to the legislature to determine who pays for what services in our communities. Well, I don't know that that is as an acceptable a statement as it used to be. We, in this country, are in the process I think of examining what elements it is that constitute us as a community.

I think we accept, when we enter into the social contract with those who sit in governance over us, that certain things will be provided for by the state: matters of defence, policing, the courts. Medicare in this country is often referred to as a part of the public common or something that the state has an obligation to supply. Social assistance.

I think it's been widely acknowledged, even internationally, that a government has the obligation to see that its citizens do not fall below a certain minimum standard of living and it seems to me, as well, that there is an obligation on the community to some extent to provide for the needs of difficult youth. [ 26 ] I don't know if it was Margaret Meade, and I don't even know what her current stock in trade is, but I think it was she who once said that it takes a community to raise a child and that is at least an understandable statement when one is considering the needs of particularly difficult adolescents.

So, I am saying that there is an obligation on the state to provide, to some extent, in certain situations. [ 27 ] I am impressed with the wording in

Section 97, however, where it says that a parent remains responsible to contribute to the maintenance of a child in care, because I don't think that parents -- at least right thinking parents -- want to be relieved of their obligation or their right to support their children, even where there are proper grounds for the apprehension of that child by the state and the placement of the child into another home. To say that actions of that kind, by the state, relieve the parents of financial responsibility, again, would promote more irresponsibility and mischief than anything else, in my mind. The fact that the order that is contemplated in

Section 97 is discretionary in the court's hands, again, is the answer to when it is that orders should be refused and when they should be made. [ 28 ] Now, turning to the considerations in subsection (7), it's been conceded that the parents here, who enjoy an income of $99,400.00, or slightly in excess thereof, have the means, capacity and economic circumstances to support the child. I am also required to look at the needs, means and circumstances of the child or youth.

In that regard, I think all I can say is that the child could very obviously benefit from intensive intervention, probably in the form of a residential behavioural modification program. The child, at this time, is highly resistant to any such suggestion and it can't yet be said that there are going to be considerable costs involved in assisting her to redirect her behaviour.

[ 29 ] Paragraph (

c) refers to the legal right of the child to receive support from another source. I am not too sure what that means. Obviously, I would think it was a reference to support from another parent, but it may envisage or contemplate a reference to the state's obligation, as I have already mentioned it. [ 30 ] And paragraph (

d) refers to: Any other circumstance the court considers relevant. And, in this particular case, I am pleased to say that the parents are maintaining a very active interest in their child's situation. The mother, in the course of giving her evidence, provided to the court a detailed breakdown of the communication she has had with the child. Suffice it to say that she strives to speak with the child as often as possible. This is very often on a daily basis. The mother seems to go out of her way to visit with the child when she knows that she can catch up with her at certain locations.

Beyond that, the mother has been in regular contact with the foster homes that the child has been placed at and it has not been suggested to me that that contact is anything but welcomed by the foster parents and I wouldn't assume otherwise. The mother knows when the child is at the foster home or AWOL, as the expression is, and as I have mentioned before, H. chooses to be away from these homes with great regularity. In fact, just looking at the schedule, I can see that she was away almost for the entire month of March. Mrs. A. has detailed this on a day by day basis.

She was away for, again, most of the month of February, although for the period between the 18th and 25th apparently she was in the psychiatric ward at the local Royal Inland Hospital. [ 31 ] The point I am making is that the parents here are intensely interested in this child and they want to do whatever they can to promote her recovery from this current spate of reckless and irresponsible living that she is caught up in. They continued to maintain their home for her. They are aware she is a fifteen year old in difficulties. They have no unreasonable expectations of the child, although some expectations no less.

This isn't the same situation as where child support is looked for from a male parent who does nothing with or for the child and who is perhaps living at the other end of the country.

In this case, just like the foster parents, when the child is AWOL the parents are maintaining a home and standing at the ready to have the child come back to it if ever she makes that decision. [ 32 ] Another fact that I think is relevant here is that in the year before October of 2002, for a brief period of time, the parents entered into a voluntary care agreement with the Ministry and, as part of that agreement, consented to pay $200.00 a month towards the child's support. It was anticipated, I gathered, that the Ministry was going to bill them as and when they felt the money was due.

That never took place, so the parents never paid, but the $200.00 figure was an amount agreed to by the parties at that time. [ 33 ] My understanding is that pursuant to the Child Support Guidelines an income of $99,400.00 and under $99,500.00, for one child, would result in a parent having to pay $757.00 per month; and for two children, $1,216.00 per month. I pause to say that the parents here are supporting H.'s older sister, who is nineteen and living at home and going to college, and I take it that they are at least under a moral obligation to pay as they do towards her upkeep. It has been put to me by Mr.

Weiss that these Guideline amounts and the rationale behind the Guidelines themselves are the result of a lot of deliberation by experts from across the land. While that's the case, I must say I still have difficulty with why it is that parents should have to show hardship before they can claim credit for the fact that they raise other children, as well as the one that is living outside of the home. [ 34 ] I am not bound to follow the Guidelines in this amount. As a result, I proceed as follows.

Allowing that the As are responsible for two children, allowing that the Guideline amount for two is $1,216.00, half of that is $608.00, and allowing that they are maintaining their home and are still very much involved with H., I am ordering that Mr. and Mrs. A. pay the monthly sum of $304.00 towards H.'s support. I am satisfied that Mr. Soll's argument, with respect to retroactivity, is correct, and this amount is to be paid for each and every month that she is in the Director's care, from February of this year, the month in which the application was filed. [ 35 ] MR.

SOLL: Do you say the end of February, then -- [ 36 ] THE COURT: Yes. That's right. [ 37 ] MR. SOLL: -- and that would make the payment at the end of -- [ 38 ] THE COURT: The payment is to be made on or before the last day of February and each month thereafter, for so long as she remains, in the words of

Section 97, "a child in care of the Director." [ 39 ] MR. SOLL: Thank you. [EXCERPT CONCLUDED]