BRITISH COLUMBIA (DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE), 2016 BCPC 47

Citation: Director v. R.M.S., C.S. and W.M.D. Date: 20160122 2016 BCPC 0047 File No: F-32139 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: D.F.S. , born (d.o.b.) BETWEEN: BRITISH COLUMBIA (DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE) APPLICANT AND: R.M.S. GUARDIAN/GRANDMOTHER AND: C.S. MOTHER W.M.D. FATHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR

Counsel for the Director: Dean Tate Counsel for the Guardian/Grandmother: Shabana Ali Counsel for C.S. (the Mother) : Kelly Russ & Shane Ali Place of Hearing: Surrey , B.C. Dates of Hearing: January 4, 5, 6, 8, 13, 2016 Date of Judgment: January 22, 2016 INTRODUCTION [ 1 ] This matter concerns a young child, D.F.S., who was born on (d.o.b.) (the “Child”). The Director (of Child, Family and Community Services: the “Director”) seeks a finding that the Child is in need of protection pursuant to s. 40 of the Child, Family and Community Service Act (“ CFCSA ”). If the Court makes that determination, the Director then seeks an order pursuant to s. 41(1)(

d) for the Continuing Custody of D.F.S. [All references to legislative provisions refer to the CFCSA , unless otherwise noted.] [ 2 ] The Director’s position is that the Child was subjected to inappropriate physical discipline or violence, poor parenting, and unsafe/unsanitary living conditions by R.M.S., her grandmother (and legal guardian). The parties agree that R.M.S. suffers from a longstanding mental illness which has impacted the children previously in her care. R.M.S. (and her daughter, C.S.) oppose the Director’s applications.

Their position is that R.M.S. has significantly improved her mental health and parenting skills over the past 2 years, sufficient to address the previous concerns. Their position is that, if the Court determines that D.F.S. is in need of protection, that the Court order the return of the Child under the supervision of the Ministry for a period of 6 months, pursuant to s. 41(1)(a). The Director acknowledges that R.M.S. has improved her mental health and parenting skills.

However, the Director maintains that she remains currently unable to care for the Child due to the likelihood that her mental health will deteriorate in the future, which will imperil the safety of D.F.S. [ 3 ] This matter is now at the Protection Hearing stage of the Child, Family and Community Service (“CFCS”) process. Background Proceedings [ 4 ] On 20 February 2013, R.M.S. obtained sole custody and guardianship of D.F.S. pursuant to the Family Relations Act.

The parties take no issue that R.M.S. is a person entitled to custody under s. 41 of the CFCSA. [ 5 ] On February 7, 2014, the Child was placed with her mother for a short period of time. On February 11, 2014, R.M.S. entered into a 3-month Voluntary Care Agreement (s. 6) wherein the Child would reside in a foster home, in the custody of the Director. [ 6 ] On May 21, 2014, the Director formally removed the Child pursuant to s. 30 of the Act .

On May 22, 2014, a Presentation Report was filed in court by the Director. [ 7 ] On August 11, 2014, an Interim Order by the Honourable Judge Rounthwaite allowed the Director to retain custody of the Child, pursuant to s. 35(2), with reasonable access to R.M.S., pursuant to s. 55(4), until any further order was made under s. 41 . [ 8 ] On September 25, 2014, the Director filed an application for an order pursuant to s. 41(1)(

d) for the Continuing Custody of the Child. A Court Plan of Care for the Child (the “Plan”) was filed on September 25, 2014. Trial dates were scheduled at that time. The Director applied to adjourn the first trial dates to explore the possibility of the mother, C.S., caring for D.F.S. In the end, it was decided that C.S. was not in a position to care for D.F.S. This is the second trial date. Current Placement of the Child [ 9 ] The Child is almost 8.5 years old at this time. She has been residing in foster care since February 11, 2014 (close to 2 years).

She has had regular, unsupervised visits with her maternal grandmother once a week. In 2015, the hours for this weekly visit were expanded. FACTS [ 10 ] The parties adduced documentary evidence and vive voce evidence (the witness court testimony) at this Protection Hearing.

Much of this evidence is hearsay. [ 11 ] The Director presented the following evidence: a. the testimony of the current social worker, Trisha McGuinness; she testified on behalf of the Director by interpreting older Ministry documents and by relating her observations during her tenure with D.F.S.’s Ministry file (November 2014 to present day); b. the testimony of a previous practicum student with the Ministry, Amanda Readings; she observed the police and Ministry interviews of D.F.S. in February 2014, in which allegations of inappropriate physical discipline or use of force by R.M.S. were made by D.F.S.; and c. numerous documents and reports: CFCSA Investigation Reports; CFCSA Intake Reports; Presentation Form 1; Court Applications and Orders, Court Plans of Care; Ministry of Children and Family Development ICM Production (Incident) Reports; Langley

Community Services Society Reports (Exchange of Information and Progress); Voluntary Care/Special Needs Agreements; a Ministry Closing

Summary re D.F.S. (2011); and a Ministry Closing Recording (2006). [ 12 ] R.M.S. presented the following evidence: a. the testimony of R.M.S., the grandmother and legal guardian of the Child; she testified as to her recollection of past events concerning the children in her care, her dealings with Ministry, her personal and living circumstances, and her mental health; she described more recent developments; on occasion she was unable to remember some events or whether she made certain statements to the Ministry or others; b. the testimony of Annu Mutti, the family and parenting counsellor from the Langley Community Services Society; she testified about her interaction with this family and her observations of the Child and R.M.S.; and c. numerous documents and reports: family court document; certificate of program completion; Project Parent Progress and Discharge Reports; Patient Medical Expense Report re Save On Foods Pharmacy; Parenting Agreement; WRAP Wellness Recovery Action Plan; and D.F.S.’s Report Card as of December 2015. [ 13 ] I have reviewed the documents and witness evidence presented at this hearing.

For the most part, R.M.S. accepted the evidence presented by the Ministry and contained in the documents. She disputed the unfolding of a few events and a few statements attributed to her. I have not attempted to summarize all the extensive evidence presented in court. Rather, I have summarized the material evidence below. Past Family Involvement with the Ministry 1997 to 2004 (C.S. and T.S.) [ 14 ] The Director presented evidence of R.M.S.’s involvement with the Ministry concerning her own children by way of documentary evidence and the commentary of the current social worker, Trisha McGuinness. T.

McGuinness had no involvement with R.M.S.’s or her family before November 2014. The social worker who had the most contact with R.M.S. between 1997 and 2014 was Erin Gill. E. Gill was not available as a witness due to a personal health situation. No other social workers with interaction with this family were tendered as witnesses. A number of Ministry reports were filed concerning R.M.S., her daughter C.S. (d.o.b.), and her son T.S. (d.o.b.).

R.M.S. testified about many of the reported events. [ 15 ] April 17, 1997: A neighbour reported that she witnessed R.M.S. hit C.S. across the face, leaving a mark, and “backhanding” C.S. shortly thereafter. Although she initially appeared to deny the incident, R.M.S. later admitted hitting C.S, perhaps on other occasions. At that time R.M.S. was attending a program called QUEST. The Ministry file was closed. R.M.S. testified that she did not hit her daughter and described a difficult relationship with her neighbours.

When cross-examined with a document in which she admitted hitting her daughter on other occasions “back east,” R.M.S. testified that she did not recall making that statement. While I am not wholly convinced by R.M.S.’s evidence on this point, I am concerned that the Ministry note regarding the past hitting was unclear. I remain uncertain whether the hitting referred to occurred at the hand of R.M.S. or someone else “back east.” [ 16 ] June 12, 1997: R.M.S. sought support in accessing counselling.

R.M.S. reported an incident with C.S. to the Ministry, in which they were arguing and R.M.S. slapped C.S. across the face with two hands on each cheek. The family was referred for support services. R.M.S. testified that she did not remember attending at the social worker’s office and making that report but that she probably did so. She testified that it was the first time she had slapped C.S. She agreed that she had struck C.S. in June 1997. [ 17 ] November 6, 1997: R.M.S. admitted herself to hospital.

The documents indicate that her hospitalization was due to an overdose on Prozac and that R.M.S. needed to be taken to a care facility called CREST for 10-14 days. A homemaker was provided for the children. [ 18 ] R.M.S. disputes the reason for the hospital admission. She described attending at her doctor’s office earlier that day, upset because she had “smacked” C.S. They spoke for a long time and the doctor told her to make arrangements for her children within the hour and admit herself to hospital or he would call the police.

According to R.M.S., she contacted her social worker and made the necessary arrangements for her children and then went to hospital. At hospital, she was sent to CREST , where she was placed on Prozac and reacted badly to it. She points out that she would not have been sent to CREST if she had overdosed on anything; she would have been kept in the hospital in the psychiatric ward. While I am not wholly convinced by R.M.S.’s explanation nor the Ministry document, I accept that R.M.S. admitted herself to hospital and arrangements were made for the care of her children. T.

McGuinness, the recent social worker, agreed that the Director cannot confirm that there was an overdose on Prozac; the Ministry made no further independent inquiries at the time and were relying on a note of a phone call from a medical professional at the hospital.

There is no indication in the materials before me who that person was or that person’s role at the hospital. [ 19 ] R.M.S. testified that she was formally diagnosed with bi-polar disorder in 1998. [ 20 ] November 10, 1998: Ministry documents show that R.M.S. had an argument involving a dispute with her son; R.M.S. admitted hitting C.S. because she was angry and frustrated with her son. R.M.S. requested that the children be placed elsewhere and a Voluntary Agreement was signed. Her son resided with a friend’s family while C.S. went to foster care for a period of time.

R.M.S. testified that she did not remember that particular incident except for her son hitting the wall and that she took him to the hospital that night. She agreed that she reached out and told someone about the incident. She eventually agreed that part of that incident involved her striking C.S. She agreed that she knew in 1997 through 1998 that slapping C.S. was wrong. [ 21 ] March 10, 1999: R.M.S. overdosed on medication and was hospitalized, leaving the children unsupervised. R.M.S. agreed in her evidence that it was a serious overdose of her migraine medications (not anti-depressants).

Homemakers assisted her children until R.M.S. was able to sign a Voluntary Care Agreement while she remained in hospital. R.M.S. later participated in a family guidance program and outpatient counselling at Langley Memorial Hospital. R.M.S. testified that she had arranged for a friend, A.S., to drive her to the hospital and then return to care for the children. Her friend did not properly care for or follow up properly with her children. Their friendship later ended.

[ 22 ] May 31, 1999: Ministry documents show that R.M.S. attended at their offices and reported that, in the course of an argument between R.M.S. and C.S., R.M.S. punched C.S. on the chin and backhanded her across the face. Criminal charges were approved against R.M.S., which later resulted in a Peace Bond. C.S. entered the Director’s care, under a Voluntary Care Agreement. In her testimony, R.M.S. acknowledged “backhanding” C.S. but denied punching C.S. on the chin.

She testified that there were difficulties in the home with C.S. and that she requested that C.S. be in foster care for a month. [ 23 ] R.M.S. testified that she was making medication adjustments at the time, which negatively impacted her ability to cope with her children’s issues. She explained that she did not start on (all) her current (2016) medications all at once, but that it was a matter of trial and error over the course of a number of years. She fairly admitted that even with the right combination, medications can only do so much in moments of extreme stress.

She testified that over the years, she had not reached the right balance of medications because she was in constant and extreme stress, mostly with regards to C.S. She noted that the medication does not work optimally within the following 2 weeks; it may be in the next month(

s) that she feels them doing what they are supposed to do. [ 24 ] March 24, 2000: R.M.S. contacted the Ministry to admit that she slapped C.S. across the back of the head; C.S. was uninjured. The Ministry arranged anger management and support services for R.M.S. [ 25 ] August 15, 2002: C.S, now 14 years old, refused to live at home, citing parent-teen conflict. C.S. told the Ministry that she preferred to live with her boyfriend and his family. R.M.S. was unhappy with this arrangement. The Ministry put support services in place.

In her testimony, R.M.S. explained that the parent-teen conflict centred on her disapproval of the boyfriend and his family. She further explained why she had been unhappy about the arrangements. She believed that the boyfriend was using heroin and she was concerned that C.S. was already using methamphetamine. [ 26 ] October 23, 2002: Although the Ministry offered C.S. a placement in foster care, fourteen-year old C.S. preferred to live with her (same) boyfriend.

The Ministry closed its intake file. [ 27 ] May 15, 2003: It was reported that C.S. was behaving in a challenging and harmful manner: self-harming (cutting), using drugs, couch surfing, and arguing with R.M.S. R.M.S. indicated that she was unable to parent C.S. due to the combination of C.S.’s behaviour and R.M.S.’s own stress levels and mental issues. R.M.S. signed a Voluntary Care Agreement. In the summer of 2003, it was reported that R.M.S. was living in unstable circumstances with a man; there were domestic disputes. At one point, the police were called to the home.

Although R.M.S. reported to the police that this male had hit her, the police arrested R.M.S. because of her behaviour during the dispute and when she retaliated against him. R.M.S. told the social worker that she had been hospitalized in the Fall of 2003 due to her mental condition. Her condition also prevented her from completing her school courses and from gaining steady employment. [ 28 ] February 4, 2004: C.S. was unable to return home due to a domestic conflict with R.M.S. and R.M.S.’s unstable mental health issues.

A six month “Kith and Kin” agreement was signed with the B. family, with whom C.S. had been residing. [ 29 ] 2005 to 2010: R.M.S. did not have contact with the Ministry after 2004, until 2010. In the interim, C.S. gave birth to D.F.S. on (d.o.b.). Almost from birth, the Ministry had concerns about C.S.’s ability to care for D.F.S. due to past mental health concerns and possible drugs use. R.M.S. became the primary caregiver for D.F.S. The Ministry noted that R.M.S. presented as stable mentally and emotionally. R.M.S. had moved into a residence to accommodate C.S. and the Child.

By March 2008, C.S. had dropped out of school; drug testing revealed no drug use by C.S. By September 2008, concerns re-surfaced that C.S. was using drugs (tests were negative) and was one month pregnant with her second child. C.S. indicated that she was not able to care for D.F.S. R.M.S. is again described as stable on medications, with no s. 13 CFCSA concerns. R.M.S. was also described as having a support system of family and friends that are available to help her, if needed. C.S.’s lifestyle remained unstable.

Recent Family Involvement with the Ministry 2010 to 2013 (D.F.S.) [ 30 ] R.M.S. testified that she started the process to seek custody and guardianship of D.F.S. in approximately 2009 or 2010. [ 31 ] March 29, 2010 - April 2010: The Child’s daycare contacted the Ministry to report the Child’s frequent absence from the daycare. After investigating, the Ministry learned that R.M.S.’s depression impacted on the care and welfare of D.F.S. R.M.S. had financial difficulty and could not provide sufficient lunches for daycare. The Child was not attending daycare and their residence was unsanitary.

R.M.S.’s mental health deteriorated to the point where R.M.S. believed she needed to be hospitalized. R.M.S. entered a voluntary care agreement (from June 1, 2010 until December 6, 2010) because no family caregivers for the Child could be identified. D.F.S. entered foster care for a period of time. The Child was returned to R.M.S. in December 2010. [ 32 ] R.M.S. testified that her emotional health was deteriorating at the time of these events. After consulting with her doctor, they determined that she was experiencing the onset of menopause and she was placed on medications.

She testified that, within a couple of weeks, she felt great. She testified that she attended a program called Rapid Access, offered by a mental health provider for those experiencing anxiety and stress. It involved attending once per week for 1 hour, in group sessions. She was also attending Stepping Stones for coffee but not engaging in their programs.

She testified that Stepping Stones offered (and continues to offer) one-on-one counselling with caseworkers and courses regarding communication and computers, crafts, toastmasters, finance courses through VanCity, healthy cooking courses through the Diabetes Society, and a depression course. [ 33 ] Under cross-examination, R.M.S. conceded that at this point in time, she had let her home conditions deteriorate.

When asked if she had stopped taking her mental health medication, she said that she could not remember. [ 34 ] November 2010 to April 2011: The Director filed two reports from the counsellor at Langley Community Services Society, Heather Whyte. These reports indicate that R.M.S. started receiving their services on November 18, 2010. The two reports cover events that occurred in March and April 2011. H. Whyte described missed appointments by R.M.S. as well as mental health and other stressors that she was experiencing.

These reports document that, in March 2011, R.M.S. was placed on a new medication, an anti-psychotic, by Dr. Shete (psychiatrist). R.M.S. experienced significant side effects, some of which were observed by H. Whyte. As a result, R.M.S. stopped taking that medication, and was provided with a different mood stabilizer by her psychiatrist. When issues arose regarding the side effects of the new medication, R.M.S. identified the issues and rectified them in consultation with her psychiatrist’s office. She also

identified that she was unwell (“cycling”) and in a manic phase during this period of time. R.M.S. also described, to H. Whyte, a number of stressors which impacted both her and D.F.S.: the family court case (for custody of D.F.S.), the conduct of the Child’s father, the failure of the daycare to follow her instructions, and financial issues. R.M.S. formally allowed H. Whyte access to information regarding the daycare and Stepping Stones which would allow H. Whyte to monitor her mental health. They identified agreed upon expectations. According to H.

Whyte, R.M.S. agreed that the plan was reasonable. [ 35 ] July 2011: By this point, R.M.S. was working with Paula (not H. Whyte) from Langley Community Services Society. R.M.S. worked willingly with E. Gill, who described her as willing to listen to recommendations and follow through. E. Gill noted that R.M.S. was able to identify when medications were not working for her and address these issues with her psychiatrist. E. Gill wrote that R.M.S. was able to get D.F.S. to daycare on a regular basis. E. Gill noted that D.F.S. always looked appropriate and well cared for while in E.

Gill’s presence. [ 36 ] February 2013 to June 2013: R.M.S. obtained legal custody and sole guardianship of D.F.S. on February 22, 2013. R.M.S. reported to the Ministry that she stopped taking her medications at some point afterwards because she felt so good about obtaining custody. R.M.S. testified that, around that time, she was exhausted, angry, scared, feeling alone, and was experiencing mood swings (from depression to extreme hopefulness about her future). She believes that she went off her medications at some point.

She testified that everything crashed after she obtained custody, and she felt that she did not know who to turn to for the next step. Her previous social worker had told R.M.S. that the social worker would apply for the “Kith and Kin” arrangements. However, that social worker left on maternity leave. She testified that she contacted her new social worker, E. Gill, several times but had no return phone calls. When meetings were arranged, they were cancelled due to social work emergencies. In the end, R.M.S. testified that E. Gill refused to make the Kith and Kin application.

R.M.S. described a period of emotional and financial hardship, but insisted that D.F.S. was provided for during that time. [ 37 ] June 29, 2013: A social worker from Langley Hospital reported, and R.M.S. later confirmed, that R.M.S. had attended emergency because she was feeling depressed, due to her living conditions. It appears that she was discharged that same day as the medical staff concluded that she was not suicidal. After the hospital visit, R.M.S. was supposed to see her family doctor the next week and connect with Langley Family Services.

In the weeks following, the Ministry was not able to connect with R.M.S. Later on, R.M.S. informed the Ministry that C.S. cared for D.F.S. for most of July 2013 because R.M.S. had not been feeling well. [ 38 ] R.M.S. expressed to the Ministry that, when she obtained custody of D.F.S., she had expected more support from the Ministry and would like to receive more support from the Ministry. The Ministry reported that support services were offered. R.M.S. testified that she sought counselling for R.M.S. to deal with the irregular presence of C.S. in the Child’s life.

Play therapy was offered but not completed; it was not a good fit for either R.M.S. or the Child’s age and issues. R.M.S. testified that she sought further counselling for D.F.S. but the Ministry refused. R.M.S. also testified that she sought respite care for one night, which was refused by the social worker. She explained that she had not had time off. [ 39 ] August 2013: By August 22, 2013, R.M.S. indicated that she was back on her medication and seeing her doctor regularly.

R.M.S. had resumed contact with Stepping Stones and wanted to work with someone from Langley Community Services Society (family counsellor). The social worker made a referral and requested the workers who had previously assisted R.M.S. (Heather or Paula) in the past. [ 40 ] October 2013 to January 2014: Heather Whyte, a family counsellor with the Langley Community Services Society, worked with R.M.S. and D.F.S. during this period. She noted that D.F.S. expressed anxiety about abandonment concerning her parents and a poor self-image.

R.M.S. and C.S. were in a continual state of disagreement over how to handle D.F.S. and her emotions. R.M.S. was having difficulty dealing with D.F.S.’ emotions and questioned her own adequacy. R.M.S. wondered if respite would be possible. During this time, the Ministry closed its file regarding R.M.S. and D.F.S. on November 26, 2013. Removal of the Child 2014 (D.F.S) [ 41 ] January 16, 2014 to January 29, 2014: On January 16, 2014, R.M.S. called H. Whyte asking for support. R.M.S. reported to H. Whyte that R.M.S. felt she was falling into old patterns, like when she was parenting C.S.

On January 16, 2014, R.M.S. signed up for a parenting program called “Nobody’s Perfect.” R.M.S. wanted to meet with H. Whyte to talk about parenting strategies. At their January 21, 2014 meeting, R.M.S. indicated to H. Whyte that she wanted D.F.S. to have counselling because D.F.S. was becoming physically violent with other children and experiencing an increased level of anxiety, which appears to have been linked to feelings of parental abandonment. As a coping mechanism, D.F.S. had started to invent stories to compensate for the absence of her parents.

As result, R.M.S. and D.F.S. argued about the (lack of) truthfulness of D.F.S.’ stories. It appears that H. Whyte was counselling both R.M.S. and D.F.S. at this point. R.M.S. expressed lack of confidence in her ability to parent D.F.S. She told H. Whyte that she noticed she was, “falling into old parenting strategies that [she] used on her own kids and feeling like [she’s] heading down a path she no longer wants to be on.” [ 42 ] During the January 29, 2014 home visit, H. Whyte observed the house to be extremely dirty. H.

Whyte observed that the residence had a grimy kitchen floor, stacked dirty dishes on the counters, dirty carpet, and an overall mess everywhere. The house was smoky and R.M.S. admitted that she had started to smoke again in the house during the Christmas break. Later that day, H. Whyte observed that R.M.S. had done her dishes and was cleaning the kitchen floor. She formed the impression that R.M.S. was not doing well. R.M.S. told her that she was taking her medication but was not sleeping. Immediately after this visit, R.M.S. began cleaning the house and continued over the next day.

Based on conversations with R.M.S., H. Whyte believed that R.M.S. felt isolated, which in turn isolated D.F.S. [ 43 ] January 29, 2014: Heather Whyte reported to the Ministry that she has seen D.F.S. for one-on-one counselling on January 29, 2014. At that time, H. Whyte noticed a week old (perhaps) bruise on D.F.S.’s forehead: it was above her right eye and a couple of inches in length. When H. Whyte told D.F.S. that it looked like she had a bruise on her forehead, R.M.S. said, “My grandma threw a bottle at my head.” She later said that it was an empty peanut butter bottle. H.

Whyte told D.F.S. that it must have hurt. When asked what she did when her grandmother threw the bottle, D.F.S. replied, “I tried to move out of the way but I wasn’t fast enough.” Whyte also

observed that D.F.S. was smoky (cigarette smoke), smelly, and wearing dirty clothing (caked on food, soiled). D.F.S.’s hair was clean. [ 44 ] January 30, 2014: H. Whyte contacted R.M.S. the next day, at which time R.M.S. had told her that R.M.S. was not sleeping well. R.M.S. told H. Whyte that she was still taking her medications. D.F.S. had also not been sleeping due to her own anxiety, which compounded the issue. They discussed the idea of respite. H. Whyte told R.M.S. that she had put her requests for support to the Ministry social worker.

They also discussed the need for D.F.S. to see a dentist for her cavity. They had to find a dentist that would accept the Healthy Kids program and R.M.S. needed to call Child’s Play on 200 th Street, and possibly book an appointment. H. Whyte never mentioned the bruise on D.F.S.’s forehead. [ 45 ] January 31, 2014: The Ministry notified the R.C.M.P. about the information received. The R.C.M.P. contacted R.M.S. [ 46 ] R.M.S. testified that during the month of January 2014, she had been depressed, was not taking her medications, had not seen her doctor, had stopped attending Stepping Stones, and was self-isolating.

She took D.F.S. to school and to play with her friends but then returned home. Under cross-examination, she testified that the cessation of medication was not planned. She had used up her prescription and then got too busy to refill her prescription. Soon, it became too late and the deterioration had started. [ 47 ] February 4, 2014: The R.C.M.P. interviewed D.F.S. It appears that this interview was video/audio recorded, however the recording was not presented to this Court during the hearing. The practicum student, Amanda Readings, observed and made notes about the interview. A.

Readings reported that D.F.S. told the police that R.M.S. gets upset, R.M.S. hits and yells at D.F.S., sometimes every day. D.F.S. said that R.M.S. yells that she does not want to be around D.F.S. anymore and yells “all” bad words. D.F.S. told the police that she did not want to be around her grandmother. When asked about being hit, D.F.S. told the police that R.M.S. and D.F.S. play a game where her grandmother tries to get D.F.S. so she can hit her more but D.F.S. runs away. D.F.S. did not like the game.

D.F.S. is reported to have said that the game starts when she is walking with her grandmother and, then, her grandmother raises her hand and D.F.S. needs to run. She then described another game they play while walking the sidewalk, where she may or may not get hugs and kisses afterwards. Amongst other things, D.F.S. said that her grandmother yells at her when D.F.S. does not listen to her grandmother. She said that her grandmother hits her on Tuesdays and Wednesdays but did not know why it happens on those days. By this point in the interview, A.

Readings noted that D.F.S. seemed all over the place and was not really engaged. She had previously informed the police that she was tired and wanted to go to sleep. [ 48 ] In the end, the RCMP informed the Ministry that this report was not a matter for the police. No charges were sought. [ 49 ] February 2014 to March 2014: During this time, RMS attended “Nobody’s Perfect,” a parenting program which ran for six consecutive weeks beginning February 5, 2014. H.

Whyte later reported that R.M.S. followed through and completed that course. [ 50 ] February 7, 2014: Social Worker Erin Gill interviewed D.F.S. at her school, in the presence of Amanda Readings. D.F.S. told them that she liked living with her grandmother because her grandmother gave her balloons and did various activities with her. D.F.S. told them that R.M.S. yells at her when D.F.S. is in trouble. She said that she gets into trouble a lot and R.M.S. hits her. When asked how R.M.S. hits her, D.F.S. swung her open hand.

D.F.S. indicated that she was hit in her upper arm, lower arm, the middle of her back, and her head. When D.F.S. was asked how often she was hit, D.F.S. said a lot. It appears from the notes that D.F.S. was then asked whether her grandmother hit her more than once a day, D.F.S. replied yes. She later told them that she gets bruises on her arms, legs, stomach, and forehead. D.F.S. also said that she was once pushed into a wall. D.F.S. told the Ministry workers that R.M.S. had thrown an empty peanut butter jar at her, which hit her in the head. D.F.S. pointed to a bruise on her head, above her right eye.

D.F.S. said that this occurred on January 19, 2014. D.F.S. said that she feared being smacked by her grandmother. She still loved getting hugs and kisses from her but did not like going for two hour walks. [ 51 ] February 7, 2014: In advance of the home visit on this day, E. Gill had contacted H. Whyte to ask that she accompany E. Gill because E. Gill intended to tell R.M.S. that she would be placing the Child with C.S. on the weekend. Over the next week, E. Gill also intended to decide about the Child’s longer term placement. On that same day, E. Gill and H.

Whyte attended at R.M.S.’s residence and observed that it was very messy with clutter all over the floors; dirty dishes piled in the kitchen; many lighters on the floor that were accessible to the Child; and a strong smell of cigarette smoke with a large ashtray in the living room full of cigarette butts. [ 52 ] February 7, 2014 - February 11, 2014: R.M.S. agreed to enter into a temporary safety plan, where the Child would stay with C.S. for a short period of time. On February 11, 2014, R.M.S. and C.S. attended a meeting at the Ministry office with E. Gill and H. Whyte. R.M.S. told E.

Gill that she had not seen her family doctor in months and had not been accessing Stepping Stones (a mental health support organization) for a couple of weeks. R.M.S. admitted during her testimony that she had not been taking her medications (mood stabilizers and anti-depressants) during this period of time and had not been managing her mental health well. R.M.S. indicated her willingness to continue working with H. Whyte but explained that she had difficulties attending Langley Mental Health due to distance and incompatible times; she had not finished the rapid access group. In the end, H.

Whyte and R.M.S. had few direct meetings but did speak on the telephone several times. [ 53 ] February 11, 2014: During the meeting at the Ministry office, R.M.S. admitted that she yelled at D.F.S. but denied any inappropriate discipline. She explained to the Ministry that when they are playing, R.M.S. pretends to smack D.F.S. on the hand and bum. R.M.S. said that when she pushed D.F.S.’s head, and D.F.S. hit the wall, it was due to misjudged distance, that it happens a lot and is not out of anger.

In her testimony, R.M.S. explained that D.F.S. and R.M.S. playfully push each other when they are passing each other. She also testified that D.F.S. can be a bit wobbly with her balance. On this occasion, R.M.S. testified that she misjudged the distance, D.F.S. lost her balance, and D.F.S. fell against the wall harder than anticipated. [ 54 ] In her testimony, R.M.S. admitted to throwing the peanut butter jar at R.M.S. She testified that she had asked the Child to give her the jar. The Child threw the peanut butter jar at R.M.S. She threw it back at D.F.S. and told her not to throw it.

R.M.S. testified that her own actions were stupid. The peanut butter jar hit the Child on her head. R.M.S. described that both she and D.F.S. had “stupid looks” on their faces. R.M.S. apologized to the Child. She stated that she did not know who was more frightened, her or the Child. R.M.S. also described pushing the Child into the wall. She testified that since R.M.S. was a young child, C.S. and R.M.S. would play a game where the Child would be seated between them and they would push her back and forth. When D.F.S. got older, she and R.M.S.

would do that to each other. One day, R.M.S. walked by D.F.S. and nudged her by pushing on the Child’s head. R.M.S. said that the Child was not expecting it and that, essentially, R.M.S. did not push her very hard. The Child was standing 4 to 5 inches from the wall and lost her balance, went over and hit the wall. [ 55 ] February 11, 2014: R.M.S. entered into a three month Voluntary Care Agreement with the Ministry, wherein D.F.S. was placed in foster care and R.M.S. would have visits.

The child protection basis for the Voluntary Care Agreement was: inappropriate physical discipline, the state of the home falling below community standards, and R.M.S.’s unstable mental health. The Director’s notes indicate that R.M.S. expressed concerns about whether R.M.S. was the right person to parent D.F.S.; she did not want D.F.S. to witness her mental health issues but wanted to have D.F.S. with her for “selfish reasons.” However, she also acknowledged that she did not want to abandon the Child. [ 56 ] February 24, 2014: The Ministry confirmed with R.M.S.’s doctor, Dr.

Van Schagen, that R.M.S. had last attended her office in October 2013. The doctor provided R.M.S. with only a month’s supply of medication. The doctor related to the social worker that this period seemed like a tough time for R.M.S. due to her receiving custody of the Child. The doctor had expected R.M.S. to pursue more follow up appointments but R.M.S. never did so. An inference might be drawn that R.M.S. was off her medications from November 2013 through the beginning of February 2014.

The doctor also informed the social worker that R.M.S. was supposed to attend her office on February 21, 2014 but that R.M.S. cancelled because she had fallen down. The appointment was re-scheduled for early March 2014. The doctor confirmed that R.M.S. had been on mood stabilizers and anti-depressants for years. The doctor indicated that she would check PharmaNet records to determine if R.M.S. had been taking her medications. The doctor confirmed that R.M.S. required structure, particularly school for D.F.S. because it provided a structure for both R.M.S. and D.F.S. that enhanced their stability.

Stability was a big issue for R.M.S., according to her doctor. [ 57 ] February 25, 2014: Dr. Van Schagen reported to the Ministry in a telephone message that R.M.S.’ s PharmaNet report showed that R.M.S. had not filled a prescription since October 2013, when she was provided only one month’s supply of medication. Dr. Van Schagen indicated that the lack of medication would affect R.M.S.’s ability to parent D.F.S. The above information from a medical professional is the only medical information before the court concerning R.M.S.’s mental health condition; it is also hearsay.

The Court did not have the opportunity to view the PharmaNet report reviewed by Dr. Van Schagen. [ 58 ] April 1, 2014: R.M.S. met with E. Gill and H. Whyte at the Ministry office. The Ministry had decided not to return D.F.S. to R.M.S. at this point; the social worker decided that R.M.S. would be able to maintain her grandmotherly role but not be responsible for primary care. R.M.S. disagreed with that decision. R.M.S. informed the Ministry that she had been off her medications since November/December 2013. R.M.S. informed the Ministry that she still had not seen her doctor.

The available inference is that R.M.S. had been without medication nor medical supervision of her mental health since November 2013 (6 months). It appears that R.M.S. may have expressed concerns with her memory at that time, as the records indicate that R.M.S.’s outreach worker contacted someone at Adult Mental Health. The latter offered no services that could assist R.M.S. with her memory. Afterwards, R.M.S. had little interaction with H. Whyte. [ 59 ] R.M.S. testified that there was a time when she did not attend a lot of her meetings with H. Whyte.

She was having problems with the foster mother (A.), who was cancelling visits and interfering in her relationship with D.F.S. R.M.S. described her anxiety level as high. [ 60 ] May 11, 2014 - May 22, 2014: The Voluntary Care Agreement expired on 11 May 2014. The agreement does not appear to have been renewed. [It is presumed that the terms of the Voluntary Care Agreement were automatically extended pursuant to s. 6(8) while the Ministry determined that its concerns had not yet been addressed.] The Ministry decided to remove D.F.S. On May 21, 2014, the formal removal occurred.

On May 22, 2014, the Director filed the Presentation Report. The bases for the removal in the Presentation Report were: s. 13(a) [that the child has been, or is likely to be physically harmed by the child’s parent]; s. 13(d) [that the child has been, or is likely to be, physically harmed because of neglect by the child’s parent]; s. 13(h) [the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care]; s. 13(l) [the child is in the care of the director… and the child’s parent is unwilling or unable to resume care when the agreement is no longer in force].

It was noted that D.F.S. was residing in her previous (2010) foster home. Events Since the Child’s Removal [ 61 ] October 2014 to April 2015: R.M.S. began engaging with Project Parent on October 14, 2014. This program offered a family counsellor and parenting education support for R.M.S. It involved face to face discussions as well as activities and interventions with D.F.S., R.M.S. and then both together. During the first 6 months (October 2014 to April 2015), R.M.S. missed some one-on-one appointments with the counsellor, Annu Mutti due to memory problems.

R.M.S. never missed her joint sessions with the counsellor and D.F.S. At the beginning, R.M.S. equated the program with the Ministry and was not prepared to discuss her mental health with A. Mutti. [ 62 ] The program focused on parenting skills and coping with the Child’s behaviours. A. Mutti saw R.M.S. approximately 1-2 times a week for 1-3 hours each time. She saw R.M.S. alone and sometimes with others. A. Mutti observed a playful bond and strong attachment between the Child and R.M.S. A. Mutti observed that the condition of R.M.S.’s residence did not raise any concerns.

R.M.S. was observed to have a good understanding of healthy food and meal planning for the Child. R.M.S. reported going to the library and the fair in Langley, as well as to Stepping Stones for her mental health and depression; she reported being connected to her community in Langley. A. Mutti noted that the Child attached to individuals very easily and quickly. She described the Child’s understanding about why she was in care: “…her grandma hit her with a peanut butter jar one time and they both started to cry… grandma hugged her after because she felt bad”; she added that it did not happen often. D.F.S. told A.

Mutti that she preferred to live with her grandmother, before anyone else (including her mother and her foster mother at that time). No parenting progress could be assessed over these months because R.M.S. had limited time with the Child (only a few hours at a time). R.M.S. had no difficulties with D.F.S. but felt that the Child was always on her best behaviour. R.M.S. candidly admitted that the daily stressors associated with child rearing were absent from these encounters, which concerned her because she needed to learn to deal with the stress.

[ 63 ] During family sessions, they focused on hearing D.F.S.’ voice. R.M.S. paid attention to D.F.S.’s responses in and out of sessions. R.M.S. had difficulties co-parenting with the current foster mother (A.) and with C.S. (different parenting styles). A. Mutti recommended increased time with the Child so parenting skills and strategies could be worked on, as well as continuing family sessions so they could deepen their relationship and understanding of each other. [ 64 ] November 2014: A new social worker, T. McGuinness, started working with R.M.S.; R.M.S.’s relationship with the Ministry improved.

At one point over the next year, T. McGuinness investigated the possibility that C.S. could parent D.F.S. She conducted inquiries with C.S.’s parenting counsellor and C.S., while also conducting two home visits. T. McGuinness had some concerns regarding C.S.’s mental health and the condition of her residence, which she viewed as not meeting community standards. By September 21, 2015, T. McGuinness advised C.S. that she could not parent D.F.S. given that she was not coping well with her own children.

It should be noted that R.M.S. has included C.S. in the Child’s visits arranged for R.M.S. [ 65 ] April 2015 to July 2015: During this period, R.M.S. missed some appointments. Before June 9, 2015, R.M.S.’s involvement with Project Parenting was limited and scattered. R.M.S. explained that her mental health had not been good and she was concerned that Project Parent would report her to the Ministry. She described her stress and difficulties sleeping. At the June 9, 2015 meeting, both A. Mutti and T. McGuinness were respectful of her explanation and focused on moving forward.

Since that time, R.M.S. steadily attended her appointments as well as the family sessions. R.M.S. was described as “redefining what it means to parent [D.F.S.].” R.M.S. remained concerned that she did not get an opportunity to “parent” D.F.S. as she only saw her a few times a week. [ 66 ] In their family sessions, R.M.S. was patient with D.F.S. and demonstrated an understanding of the Child’s feelings. R.M.S. had a good knowledge of boundaries as she spoke to the Child at an age-appropriate level, protecting her from adult issues.

R.M.S. showed an interest and concern about how to handle certain parenting issues with the Child; she was also interested to know more about child development at D.F.S.’s age. R.M.S. acknowledged that D.F.S. was now at the age when R.M.S. had become an angry parent with her own children. R.M.S. told A. Mutti that she did not want to go down that path again. A. Mutti reported that she never witnessed R.M.S. being “an angry adult” with the Child during any of their interactions. R.M.S.’s residence remained appropriate. While it was sometimes messy, it was also tidy at other times.

It was always tidy by the next visit. R.M.S. remained connected to Stepping Stones to support her mental health and she had friends she could depend on. There were no concerns about R.M.S. being isolated in her community. [ 67 ] During this time, the Child was moved to another foster home in June 2015, with fewer children. T. McGuiness reported that the previous foster mother, A., would regularly cancel visits with R.M.S. and D.F.S. without notice or at the last minute. D.F.S. also experienced issues, including violence, with the other children in A.’s home. After the change of foster parent, T.

McGuinness described that the Child was doing great. A. Mutti noted a noticeable change in R.M.S. when D.F.S. left A.’s home (first foster parent) and was placed in the new foster home (S.’s). R.M.S. felt comfortable communicating with S. R.M.S. appeared more relaxed in her sessions with A. Mutti. According to A. Mutti, R.M.S. took the initiative to support the Child as she experienced many transitions. A. Mutti provided R.M.S. with a resource book for interventions when children have gone through some type of loss. A.

Mutti reported that R.M.S. not only read the book but she photocopied and edited activities that could be adjusted for D.F.S. R.M.S. also recognized that she was overcautious and overprotective of D.F.S. As well, R.M.S. requested some books on parenting strategies to deal with the increasing attitude displayed by D.F.S. R.M.S. was now described as being fully engaged in Project Parent. [ 68 ] July 2015 to October 2015: During this time, A. Mutti noted that R.M.S.’s involvement in Project Parent was at its highest level.

She was proactive in requesting resources be sent to her as well as asking more questions about parenting D.F.S. as the Child gets older. She was concerned about what was normal behaviour for D.F.S.’s age. They spent a session on “Tweens with Attitude,” to assist R.M.S. in better understanding D.F.S.’s developmental stage and how to address certain issues. A. Mutti observed that R.M.S. continued to teach the values that she wanted D.F.S. to have as she grows up. A.

Mutti noted, “Despite [R.M.S.’s] limited access to [D.F.S.], she still presents as being a parent to [D.F.S.] and makes an effort to improve her parenting skills.” [ 69 ] R.M.S. was more focused over the past months. During their last three sessions, A. Mutti met R.M.S. at Stepping Stones because R.M.S. had stated that her building was undergoing renovations and restoration. The Court notes that T. McGuinness referred to renovations or construction also occurring at R.M.S.’s home in 2015. R.M.S. continued to bring snacks for D.F.S. during her Project Parent sessions with the Child.

R.M.S. remained connected to Stepping Stones. She had a strong network of friends, according to A. Mutti, upon whom she could rely. In her evidence, A. Mutti testified that she observed R.M.S. at Stepping Stones, where she appeared to be a regular attendee. A. Mutti did not make any further inquiries nor seek to speak with the friends and support network identified by R.M.S. A. Mutti testified that T McGuinness was constantly “in the loop” and that the family counsellor and the social worker had an open relationship. T.

McGuinness testified that she had never visited Stepping Stones nor made her own inquiries about Stepping Stones or the friends/support network identified by R.M.S. T. McGuinness testified that she did not think R.M.S. had a lot of community support. [ 70 ] R.M.S. testified that she learned to listen to D.F.S.; she acknowledged that, in the past, she reacted and did not listen to her children. She now listens more and better to the Child and her own children (their thoughts, where they are coming from, their feelings). She testified that she now takes the time to think before responding to them.

She still disciplines D.F.S. with time outs or by withholding toys. In dealing with D.F.S.’s growing “attitude” (talking back), R.M.S. reminds D.F.S. that respect goes both ways and that she expects D.F.S. to treat her with respect, too. R.M.S.’s recollection is that she has D.F.S. from approximately 11:00 am until 6:15 pm/6:30 pm on Saturdays. They engage in extensive activities both in the home and in the community, which she listed. She involves D.F.S. in her volunteer work. [ 71 ] The Project Parent involvement with R.M.S. ended after 1 year in October 2015. At the end, A.

Mutti recommended that the Child work with an attachment therapist and that R.M.S. continue to read up on parenting strategies in those areas where she sought improvement. A. Mutti reported that the goals of the counselling had been met by the end of the year, although she testified that R.M.S. would have to continue working on her parenting skills as D.F.S. became older and moved into adolescence. A.

Mutti testified that nothing arose at the end of the counselling that caused her any concerns about R.M.S.’s parenting. [ 72 ] October 2015 to present: There have been no reports of instability or issues with R.M.S.’s mental health since the involvement

with Project Parent ended. T. McGuinness, from November 2014 until November 2015, met or communicated regularly with R.M.S. She checked in with D.F.S. regularly when D.F.S. met with A. Mutti. She noted no pattern to indicate that R.M.S. was off her medications over the course of that year; she had not been concerned about R.M.S.’s mental health during that time. T. McGuinness fairly testified that R.M.S. worked cooperatively with her. She confirmed that all visits between R.M.S. and the Child were unsupervised. T. McGuinness conducted home visits and found that the residence met community standards.

Once she confirmed the condition of the home, T. McGuinness changed the visits from 2 hours in the community once per week to 4 hours to 6.5 hours. She permitted the visits to occur in R.M.S.’s residence. T. McGuinness testified that she had no concerns that there was inappropriate yelling or discipline during those visits. The last home visit by T. McGuinness occurred in, perhaps, the summer or September/October 2015, due to construction or renovations at R.M.S.’s residence. [ 73 ] T.

McGuinness testified that she retained the strong view that there was a strong likelihood that physical abuse against D.F.S. could occur again in the future. Her view was based on the pattern of conduct by R.M.S. with her own children, which T. McGuinness viewed as present with D.F.S. before she was removed in 2014. She was concerned that R.M.S. had not acknowledged the physical abuse regarding D.F.S. and that R.M.S.’s mental health could cycle downwards again. Given that R.M.S. had not been providing daily care for D.F.S., T.

McGuinness was concerned that the pattern would repeat itself if there was no structure in place. She agreed that if R.M.S. was able to maintain stable mental health, her concerns would be attenuated. [ 74 ] R.M.S. testified that she began to fully engage with Stepping Stones in the period since the Child’s removal. She participated (and continues to do so) in the one-on-one counselling with caseworkers and courses.

She notes that they offer courses regarding communication and computers, crafts, toastmasters, finance courses through VanCity, healthy cooking courses through the Diabetes Society, and a depression course.

For example, she has taken the finance courses, healthy cooking courses, and the depression courses. [ 75 ] R.M.S. testified about her early warning signs, which signal the onset of mental health issues: increased coffee and cigarette use, starting to isolate, losing sleep, changed eating habits, language changes, increased sugar use, too much energy, overspending, developing impossible plans, either overly clean or dirty house (extremes).

In her testimony, she identified the steps she has taken to manage her mental health issues: use of full spectrum lighting at home (which she uses to moderate her moods; this is a new development); proper eating and sleeping habits; daily medications; attending Stepping Stones and participating in counselling, programs, and social activities; daily walks; regular socializing with friends (whom she has discovered over the past year were also a strong support system for her with D.F.S.); part-time work at Stepping Stones (cleaning; this is a new development); relaxation and meditation daily; regular contact with her children; camping outdoors every 2 months, even in winter; spending more time outdoors; and using music to stabilize her mood.

She is continuing with her life therapy. R.M.S. indicated that her case worker at Stepping Stones calls her if R.M.S. has been absent for a couple of days; her friends also call her if they have not seen her by the end of the day. She has a camping friend who texts her first thing in the morning to remind her to take her medications. She named other friends who are prepared to assist her with respite care for D.F.S. if she was returned to R.M.S. [ 76 ] Medications: R.M.S. filed a Patient Medical Expense Report (Save on Foods Pharmacy) from January 1, 2014 to December 2, 2015.

There were gaps in the records, which appeared to show that prescriptions were not filled for January to March 2014, May 2014, November to Dec 2014; April 2015, July-August 2015, and November 2015. In her testimony, R.M.S. indicated that she sometimes filled the prescription at Shoppers Drug Mart or elsewhere, which did not appear to show on the medication report. She also testified that C.S. sometimes filled R.M.S.’s prescriptions for R.M.S. No reports were filed from Shoppers Drug Mart or other pharmacies.

While the absence of these other reports causes some concern for the Court, I am prepared to accept that R.M.S. remained relatively stable with her mental health from approximately April 2014 through present day (1 year 9 months). She testified later that she had not stopped her medication for more than a month since April 2014. [ 77 ] She was working closely with A. Mutti from October 2014 until October 2015. A. Mutti did not observe signs of overt mental health deterioration in R.M.S. or physical deterioration of her residence, which has been the case in the past (the two are linked).

R.M.S. repeatedly informed A. Mutti that she was staying on her medications and R.M.S. admitted that she had not always done so in the past. A. Mutti has not visited R.M.S.’s since, possibly, September 2015. Throughout her dealings with the Child, D.F.S. has indicated to A. Mutti that she preferred to live with her grandmother. [ 78 ] R.M.S. participated in the WRAP program (Wellness Recovery Action Plan), which lasted for 6 weeks at 2.5 hrs per day. She had taken this course twice before over the years. This time, she identified tools and goals for improved functioning.

During testimony, R.M.S. described her daily, weekly and monthly activities, many of which are also found in the report: improved eating and healthy habits, taking long walks or hiking and camping outside, taking her medication every day, spending time with her friends (and going to Stepping Stones), spending time with her health professionals (her doctor, Stepping Stones mental health therapist/counsellor), attending the library, coping strategies (contacting her friends, going to Stepping Stones, calling family, using light therapy in the home, continuing to talk to the staff at Stepping Stones.) [ 79 ] She identified her early warning signs: not keeping appointments, lack of sleep, forgetfulness, irritability, isolating herself or avoidance of others, over/under eating, increased negativity, weepiness, discouragement, avoiding daily maintenance, not keeping her living space clean, and not bathing every morning.

Underlying themes throughout her WRAP report and her testimony was R.M.S.’s focus on maintaining her mental health by connecting with her community and friends, and maintaining a strong connection with Stepping Stones for community as well as therapeutic support. She developed a plan to implement in case she decompensated and D.F.S. required care on an emergency basis. She also provided for personal respite care arrangements, naming in her report and testimony those she can rely upon for respite care.

THE ISSUES [ 80 ] The following legal issues arise in this proceeding: a. whether the Child is in need of protection pursuant to s. 40; b. if so, whether the Child should be placed in the Continuing Custody of the Director pursuant to s. 41(1)(

d) or whether the Child

should be returned to her grandmother under a 6-month supervision order; c. more specifically, whether R.M.S. has sufficiently improved her parenting skills (including her ability to discipline withoutviolence or inappropriate conduct); her mental health stability and support systems; and her living conditions such that her previouspattern of conduct is unlikely to reoccur; d. whether the Court can be assured that R.M.S.’s past conduct will not be repeated in the long-term, beyond a 6-month or otherdeterminative period such that she can provide a safe, sanitary and nurturing home for D.F.S.

LAW AND AUTHORITIES Underlying Principles [81] All parties agree that the Court is required to interpret and administer this Act in accordance with the following GuidingPrinciples in s. 2: Guiding Principles 2. This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations andin 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 childrenrests 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 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. [82] The paramount consideration for the Court is the best interests of the child. The relevant considerations to this matter arereferred to in s. 4: 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. [83] The best interests of the child, i.e. the safety and well-being of the child, are still balanced against the secondary but stillsubstantial interests of the parents: Director v. Kim H. 1999 BCPC 18 , 1999 BCPC 0018 at para. 9. The court does notdetermine if the Director’s assessment was “right”; the court is not in any way beholden to the Director, whose plan of care has noinherently greater value than the plan of the parents: Ibid at para. 10.

As stated by Smith, P.C.J., Ibid, at para. 10: It remains for the court to consider the relative merit of each [plan], and to reach its own independent determination based on all of theevidence. [84] In making these types of decisions, the Court is permitted to conduct the proceedings in a flexible and informal manner: s.66(b). [85] Before ordering that a child be placed in continuing care or returned to the custody of a person other than the Director, the Courtmay consider that person’s past conduct toward any child who is or was in that person’s care: s. 68(1).

Hearsay Evidence - Reliability [86] The paramount consideration remains the best interests of the child, which permits the Court to admit any hearsay evidence of

the child, if such evidence is considered reliable, without the need for the Child to testify: s. 67 of the Act. The Court may also admit anyhearsay evidence it considers reliable: s. 68(2)(a). Other forms of permissible evidence are: any oral or written statement or report theCourt considers relevant, including a transcript, exhibit, or finding in an earlier civil or criminal proceeding [s. 68(2)(b)].

The overridingevidentiary principle in any court matter is that all evidence should be relevant to the issues before the court and reliable. [87] The reliability of hearsay evidence should be considered in the context of all of the evidence: Re: J.(A.), [1998] B.C.J. No. 1888(Q.L.) at para. 39 (BCPC), affirmed in part (sub nom. J.(D.D.) v. British Columbia (Director of Child, Family and CommunityService), [1999] B.C.J. No. 1526 (Q.L.) (BCSC).

As the court states in Re: J.(A.), supra, at para. 39: If the court concludes that the hearsay evidence is not reliable, that evidence would not be considered when assessing whether thedirector has satisfied the burden applicable in civil proceedings. [88] In this hearing, the admission of the hearsay evidence is not contested. The Court must, however, determine what weight can beattributed to hearsay evidence disclosed in the documentary and witness evidence.

R.M.S. does dispute certain entries in some of theDirector’s reports and some statements attributed to others, including the Child. [89] The jurisprudence is replete with decisions that discuss the various factors which are used to assess the reliability of hearsayevidence for the purposes of admissibility. As admissibility is not an issue in this proceeding, the focus must be on the reliability of thehearsay evidence. Those factors that apply to hearsay admissibility are similar to those used in assessing the reliability of hearsayevidence.

Similarly, those indicia of reliability which apply to the evidence of children can be expanded to include other witnesses andforms of evidence. The indicia of reliability factors logically flow from common sense considerations. Any list is necessarily non-exhaustive. [90] Fisher, J. in D.A.M. v. D.M.T., [2013] B.C.J. No. 392 (Q.L.) (BCSC) at paras. 115-116, noted that hearsay evidence must becarefully scrutinized and identifies several indicia of reliability that may be assessed.

The assessment focuses on the original speaker orsource of the hearsay statement (the declarant) and the person or instrument conveying the hearsay statement to the court. The followingis a generalized

summary of those factors: a. the timing of the statement; b. whether the statement was made spontaneously; c. the demeanour, personality, intelligence and understanding of the child declarant; d. the presence or absence of a motive to fabricate or lie; e. whether there was corroboration by real evidence; f. consistency over time; g. whether the statement was in response to non-leading questions; h. the presence or absence of motive or bias of the person who reports the statement; i. the presence or absence of suggestion, manipulation, coaching, undue influence or improper influence; and j. whether the statement is equally consistent with another hypothesis or alternative explanation; [91] This Court would add the following logical factors: the circumstances under which the statement was made; whether thestatement was accurately recorded in the first instance; whether the statement was accurately conveyed to the court; whether thestatement is against the interests of the declarant; the memory and perception of the declarant or person conveying the statement to thecourt; the possibility of mistake or exaggeration; and whether the reporter of the statement is disinterested (i.e. the statement is not madein favour of that person’s interests); and whether there was harmony between the evidence of one witness and another.

Thesesummarized factors emerge from R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 at paras. 2, 53; R. v. Khan, (SCC), [1990] 2 S.C.R. 531 at paras. 30, 34; and J.F.K. v. J.D.F. (B.C.C.A.), [1988] B.C.J. No. 278 (Q.L.) at p. 8 (BCCA).

Section 40 - Protection [92]

Section 40 requires this Court to determine whether the child needs protection.

Section 40 must be interpreted in conjunctionwith s. 2 (Guiding Principles, see above), s. 4 (Best Interests of the Child, see above), and s. 13 (When Protection is Needed). [93]

Section 13 uses the term “has been or is likely to be” in combination with specified types of harm. This phrase is bothretroactive and prospective.

Section 13 represents a non-exhaustive list of circumstances when a child is deemed to be in need ofprotection: 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 thechild'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 orconsent 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 carewhen the agreement is no longer in force.

(1.1) For the purpose of subsection (1) (

b) and (

c) but without limiting the meaning of "sexually abused" or "sexually exploited", achild has been or is likely to be sexually abused or sexually exploited if the child has been, or is likely to be, (

a) encouraged or helped to engage in prostitution, or (

b) coerced or inveigled into engaging in prostitution.

(1.2) For the purpose of subsection (1) (

a) and (

c) but without limiting the circumstances that may increase the likelihood of physicalharm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domesticviolence by or towards a person with whom the child resides.

(2) For the purpose of subsection (1) (e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. [94] When the precise requirements of s. 13 cannot be met with sufficient certainty, s. 2 (Guiding Principles) can be invoked toensure the protection of a child: B.S. v. British Columbia (Director of Child, Family, and Community Services), (BCCA), [1998] B.C.J. No. 1085 (Q.L.) at paras. 19, 21, and 23 (BCCA). [95]

Section 40 requires the Court to determine whether the child “is in need of protection”: Protection Hearing 40(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 custodyunless 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 tohelp it determine which order should be made under

section 41. [96] The Court must adjudicate the reasons for the removal and the Director must justify the original removal: Re: S.(J.), 1998 WL172473 (BCPC) at para. 3 and 7, as cited in B.B. v. British Columbia (Director of Child, Family and Community Services), 2005BCCA 46 at paras. 23 and 24. The Court must consider whether the child was in need of protection at the time of removal: B.B. v.British Columbia, supra, at paras. 16 and 43.

If the Court determines that the child was not in need of protection at the time of removal,the child must be returned to the parent entitled to custody (unless the child has already been returned) and terminate any interim ordermade under ss. 33.2(2), 35(2), and 36(3). At this point, the Director would no longer have jurisdiction over the parties or the child. [97] If the Court determines that the child was in need of protection at the time of removal, the Court must continue on to determineif the child is currently, at the time of the Protection Hearing, in need of protection.

The Court notes that s. 40 uses the present tense:

“At the protection hearing the court must determine whether the child needs protection.” The provision does not say: “…whether the child needed protection”. Likewise, s. 13 (When Protection is Needed) stipulates: “if the child has been or is likely to be…” harmed in various specified ways. The s. 13 provisions are written in both the past and future tenses. [ 98 ] In B.B. v. British Columbia, supra, at para. 25, the Court of Appeal, refers to both time periods: at the time of removal and the time period “from” the time of removal.

The Court of Appeal also noted that the s. 40 protection assessment is closely linked with the disposition assessments under ss. 41 and 49: 25. Counsel for the Director does not take issue with the highlighted rule. Moreover, she agrees that the finding under s. 40 must be made from the date the children were removed from their parents' care . I agree with both propositions and thus, with the approach Rounthwaite P.C.J. took to the Director's application for continuing custody of C.R.

This approach has the important advantage of providing a baseline for the assessment of a child's needs and parents' capacities under s. 49, just as it does for one under s. 41. On applications under both sections, the circumstances that led to the child's removal are fundamental to the choice of the appropriate order. … [Emphasis added.] [ 99 ] In this case, this Court interprets the use of the term “from the date the children were removed from their parents’ care” as the time period after the removal. Such an

interpretation is supported by the requirement to interpret all provisions of the CFCSA in light of s. 2 (Guiding Principles) and s. 4 (Best Interests of the Child), which would necessarily require the Court to consider the circumstances relating to the safety and security of the child both at the time of removal and after the time of the removal. [ 100 ] If the child is not currently in need of protection at the time of the Protection Hearing, the child must be returned to the parent, as above. The jurisdiction of the Director ceases.

If the Court determines that the child is in need of protection at the time of the Protection Hearing, the Court must then move on to consider s. 41, which provides for the disposition or placement of the child given the current or ongoing need for protection: B.B. v.

British Columbia, supra, at para. 25. [ 101 ] There is much case law in British Columbia that allows the s. 40 Protection Hearing judge to examine, “…the circumstances prevailing at the time of removal and over the period extending from then to the time of the hearing,” in order to determine if the child is need of protection: B.C. (Dir. of C.F.C.S.) v. J.M. & A.L. 2012 BCPC 333 at para. 39 , in which Woods, P.C.J. cites the further decisions of Superintendent of Family and Child Service v. Gilmour , [1986] B.C.J. No. 1793 (May 14, 1986), Vancouver No. CC851987 (B.C. Prov.

Ct.), Director of Family and Child Service v. Williamson and Williamson (April 10, 2001), Port Coquitlam No. F3980 (B.C. Prov. Ct.) and Re: D.M.J. and R.J. , [1992] B.C.J. No. 724 (March 30, 1992), Prince George No. 21831 (B.C.S.C.).

Woods, P.C.J. also notes that, “ Evidence over that entire period will speak to, among other things, the possibility that the child will be at risk of future neglect or abuse based on the pattern revealed by evidence of the recent and not-so-recent past.” (para. 39) [ 102 ] For s. 40, the onus of proof to establish that a child is in need of protection rests with the party who asserts the need for protection. The standard of proof is on the balance of probabilities or, in other words, “The weight of the evidence must show that it is more probable than not that the assertion being made is correct”: B.S. v.

British Columbia, supra, at para. 26. The weight of the evidence must demonstrate that it was more probable than not that:

a) a past event occurred ; and

b) there is a risk of the future event. (The test does not involve demonstrating that the actual future event will occur on the balance of probabilities): paras. 27-28. The majority in the Court of Appeal explained further : 30. In assessing the risk of future harm, (which is called the threat of future harm in s. 2), there is room for a variable assessment depending on the nature of the threatened harm which is in contemplation.

A threat of harm through neglect of the child's hygiene might well have to be much more probable in order to meet the balance of probability test than a threat of serious permanent injury through physical or sexual abuse. Generally speaking, a risk sufficient to meet the test might well be described as a risk that constitutes "a real possibility".

Section 41 - Disposition of the Child [ 103 ]

Section 41 governs the disposition of the Child once a protection finding has been made: 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 littleprospect 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 thechild 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 ofcare. Content of Supervision Orders 41.1. The court may attach to a supervision order terms and conditions recommended by the director to implement the plan of care,including (

a) services for the child's parent or another person in the child's home, (

b) daycare or respite care, (

c) the director's right to visit the child, and (

d) the requirement that the director remove the child if a person does not comply with one or more specified terms or conditions ofthe order. [104] There appears to be a presumption in s. 41 that a (permanent) continuing custody order [s. 41(1)(d)] must not be ordered unlesscertain criteria are met.

In this case, the applicable provision is s. 41(2)(c): the nature and extent of the harm the child has suffered or thelikelihood 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 theparent. [105] The concept of a specified onus or burden of proof does not apply to the s. 41 assessment: B.B. v. British Columbia, supra, atpara. 35.

All parties to the proceedings bear the evidentiary burden of demonstrating the most appropriate care plan for a child: …The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden of demonstrating the mostappropriate care plan for a child. Once the Director has established on the balance of probabilities that a child is in need of protectionand the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it todetermine the appropriate care arrangement within the strictures imposed by the Act.

Until a continuing custody order is made, the dutyto determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless theyagree. No general rule should deflect the court's attention from the necessary inquiry into the child's needs and the parents' ability tomeet them, with such support as the community is able to provide. [106] This Court notes that the Court of Appeal at para. 45 used terms like, “no significant lik

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