The Director v. M.M.M. et al Date:, 2017 BCPC 411

Citation: The Director v. M.M.M. et al Date: 20171103 2017 BCPC 411 File No: F-3263 Registry: Burns Lake 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: T.F.M. , born [removed for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.M.M. and E.W.P. PARENTS AND: C.A. and G.K. GUARDIANS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS

Counsel for the Director: J. Yuen Appearing for the Parents: No one Appearing Appearing for the Guardians: No one Appearing Place of Hearing: Burns Lake , B.C. Date of Hearing: October 10, 2017 Date of Judgment: November 3, 2017 Introduction [ 1 ] This is the hearing of the Director’s application for a continuing custody order pursuant to s. 41(1)(

d) of the Child, Family and Community Services Act (“ CFCSA ”) with respect to the child T.F.M., born [removed for publication]. [ 2 ] The Ministry of Child and Family Development (“MCFD”) has been involved in T.F.M.’s life since she was an infant. Neither T.F.M.’s biological parents nor guardians are able to care for her. T.F.M.’s extremely high risk behaviour has damaged her relationship with her caregivers and challenged MCFD resources to the breaking point. Issues [ 3 ] The issues before the court in these proceedings are as follows: a.

Does the Director have to serve T.F.M.’s biological parents with notice of these proceedings? b. Is T.F.M. in need of protection? c. Should T.F.M. be placed in the continuing care of the Director?

Background Facts [ 4 ] T.F.M. is the biological daughter of M.M.M. and E.W.P. [ 5 ] M.M.M. is also the biological mother of: J.B.M., born [removed for publication]; K.M.M., born [removed for publication]; F.L.M., born [removed for publication]; C.M.M., born [removed for publication] and F.M.M., born [removed for publication] (collectively, the “Children”). [ 6 ] E.W.P. is the biological father of J.B.M., F.L.M., K.M.M., T.F.M. and C.M.M. M.

A. is the biological father of F.M.M., who is the sister to J.B.M., F.L.M., T.F.M., C.M.M. and K.M.M. [ 7 ] The Children are all members of the [removed for publication] Nation, as are their biological parents. [ 8 ] Neither M.M.M. nor E.W.P. has been T.F.M.’s primary caregiver for several years. In fact, E.W.P. was in jail off and on throughout T.F.M.’s formative years. [ 9 ] T.F.M. has had a long history with MCFD.

A review of the court file indicates T.F.M.’s involvement with MCFD began when she was 19 months old and has continued throughout her life: Date Nature of the MCFD’s Involvement [removed for publication] T.F.M. is born. June 10, 2001 to June13, 2001 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ) when she was 19 months old. September 21, 2001 to September 23, 2001 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ).

July 3, 2008 to August 1, 2008 T.F.M. was subject to an Extended Family Program, meaning she was being cared for by a relative rather than her parents and MCFD provided income assistance to the related caregiver. August 1, 2008 to November 1, 2008 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ). November 1, 2008 to February 1, 2009 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ). February 1, 2009 to July 1, 2009 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ).

July 1, 2009 to July 1, 2010 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ) July 1, 2010 to June 30, 2011 T.F.M. was subject of a Special Needs Agreement (non- protection) under s. 7(1) of the CFCSA. July 1, 2011 to October 3, 2011 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ).

October 28, 2011 to December 7, 2011 T.F.M. was subject of voluntary care agreement (s. 6 of the CFCSA ). February 17, 2012 to February 22, 2012 T.F.M. was removed from her parents’ care pursuant to s. 30 of the CFCSA. March 16, 2012 to April 27, 2012 On March 16, 2012, Judge Milne ordered pursuant to s. 35(2)(

a) and 42.1(6) of the CFCSA that the children will be in the interim custody of the Director. April 27, 2012 to July 24, 2012 On April 27, 2012, Judge Milne found the children in need of protection at the time of removal and ordered pursuant to s. 41(1)(

c) and reference to s. 60 of the CFCSA all the M. Children be placed in the temporary custody of the Director. July 24, 2012 to October 22, 2012 Judge Milne’s April 27, 2012 order placing T.F.M. in the temporary custody of the Director was extended, by consent, for a further three months (s. 44(3)(

b) and s. 60). October 29, 2012 to February 28, 2013 Judge Milne’s April 27, 2012 order placing T.F.M. in the temporary custody of the Director was extended, by consent, for a further four months (s. 44(3)(

b) and s. 60). On February 28, 2013 Judge Wright ordered pursuant to s. 4 with reference to s. 60 of the CFCSA , the maximum time the children may remain in the temporary care of the Director be extended to December 31, 2013. July 23, 2013 Judge Jackson ordered pursuant to s. 49 with reference to s. 60 of the CFCSA , the children remain in the temporary custody of the Director for a period of 6 months commencing August 28, 2013 and expiring February 28, 2014. Judge Jackson further ordered an extension of the maximum time the children may remain in the temporary custody of the Director to February 28, 2014.

April 22, 2014 Judge Jackson ordered pursuant to s. 45 with reference to s. 60 of the CFCSA , the maximum time the children may remain in the temporary care of the Director be extended to August 31, 2014. August 29, 2014 to February 28, 2015 T.F.M. was subject of a supervision order after a temporary custody order of the CFCSA (ss. 46 and 60 of the CFCSA ). October 16, 2014 Judge Keyes ordered pursuant to s. 45 with reference to s. 60 of the CFCSA , the maximum time the children may remain in the temporary care of the Director be extended to June 30, 2015.

May 28, 2015 T.F.M. was removed from her parents’ care under s. 30(1) (

a) of the CFCSA. July 31, 2015 Judge Stewart ordered T.F.M. placed in the interim care of the Director pursuant to s. 35.2(

a) of the CFCSA. January 29, 2016 Judge Birnie ordered, pursuant to s. 49(1)(

a) of the CFCSA , that C.M.M. and F.M.M. be placed in the continuing care of the Director and that M.M.M. have specified access. February 3, 2016 Judge Birnie ordered T.F.M. be placed in the custody of a person other than the parent, namely, C.A. and G.K., on a without prejudice basis, under the terms of the application on the January 27, 2016 Form 2, until February 10, 2016: (s. 41(1)(

b) CFCSA. February 10, 2016 Judge Brecknell ordered that Judge Birnie’s February 3, 2016 order placing T.F.M. in the custody of a person other than the parent, namely, C.A. and G.K., on a without prejudice basis, under the terms of the application on the January 27, 2016 Form 2, will be extended until the conclusion of a hearing on the merits of the matter pursuant to (s. 41(1)(

b) CFCSA. April 12, 2016 Judge Jackson ordered, pursuant to s. 41(1)(

b) of the CFCSA, that T.F.M. be placed in the custody of a person other than the parent, namely, C.A. and G.K., with the consent of the other person under the Director’s supervision for a period of 6 months under the terms of the application dated January 27, 2016. December 13, 2016 Judge Birnie ordered T.F.M. placed in the interim care of the Director under the supervision of the Director pursuant to s. 35(2)(

d) of the CFCSA . Date Nature of the MCFD’s Involvement

January 24, 2017 Judge Jackson ordered by consent: a. pursuant to s. 54.01 and with reference to s. 60 of the CFCSA, that custody of T.F.M. is permanently transferred to C.A. and G.K.; and b. service and notice of the application on M.M.M. and E.W.P. be dispensed with. July 27, 2017 T.F.M. was removed from the care of C.A. and G.K. August 15, 2017 Judge Jackson ordered that pursuant to s. 35(2)(

a) of the CFCSA that T.F.M. be in the interim custody of the Director. September 26, 2017 Judge Doulis made an order dispensing with the Director’s application on G.K. Date Nature of the MCFD’s Involvement Current Proceedings [ 10 ] On August 2, 2017, the Director filed a Form A Report to the Provincial Court of British Columbia summarizing the Director’s basis for removing T.F.M. from the care of her legal guardians on July 27, 2017. [ 11 ] On September 8, 2017, the Director filed a Form 2 Application for an order under s. 41(1)(

d) of the CFCSA that T.F.M. be placed in the continuing custody of the Director. In support of that application, the Director filed: a. a Court Plan of Care on September 8, 2017; b. an Affidavit of Social Worker, Kristin Peter, on September 25, 2017; c. a Form 9 Certificate of Service, with respect to T.F.M., on September 14, 2017; d. a Form 9 Certificate of Service, with respect to S.J., representative of the [removed for publication] Nation, on September 14, 2017; and e. a Form 9 Certificate of Service, with respect to C.A., on September 14, 2017. [ 12 ] T.F.M. is just shy of her 18 th birthday.

On July 27, 2017, T.F.M.’s most recent guardians, G.K. and C.A., notified MCFD they are unable to continue caring for T.F.M. because of her high risk and anti-social behaviours. Among other things, T.F.M. stole C.A.’s car and several hundred dollars. T.F.M. also brought into her guardians’ home a variety of unsavoury persons, including a convicted sex offender. [ 13 ] T.F.M. has a history of refusing to stay in any MCFD foster placements.

She engages in extremely high risk activities and recognizes no boundaries. [ 14 ] T.F.M. has been in conflict with the criminal justice system since she was old enough to be charged. She now has a lengthy youth criminal record for violent offences and for failing to comply with multiple court orders. Recently, T.F.M. was sentenced to a custody and supervision order for the maximum period of six months under the Youth Criminal Justice Act (“ YCJA ”) for failing to comply with youth sentences with probation terms. [ 15 ] On September 22, 2017, the Court convicted T.F.M. of assaulting three people.

She was sentenced to a six month Deferred Custody and Supervision order under Section 42(2)(

p) of the YCJA to be followed by a six month Intensive Support and Supervision program pursuant to s. 42(2)(l). Since then, T.F.M. has been at the [removed for publication] Residential Treatment Program in Kamloops, B.C. She is expected to remain there for the duration of her Deferred Custody and Supervision Order. Nature of these proceedings [ 16 ] The Director seeks a continuing custody order for T.F.M. pursuant s. 41(1)(

d) of the CFCSA . If the court places T.F.M. in the continuing custody of the Director, the Director becomes her sole guardian and may consent to her adoption: s. 50(1)(

a) CFCSA . The order continues until T.F.M.: (

a) reaches 19 years of age; (

b) is adopted; (

c) marries; or (

d) the court cancels the order or transfers custody (s. 53). Notice and Attendance [ 17 ] On September 8, 2017, Social Worker Keshia Davis personally served T.F.M.’s guardian, C.A., with a copy of the Director’s September 8, 2017 Application together with the September 8, 2017 Court Plan of Care. [ 18 ] On September 8, 2017, Tara Hall served T.F.M. with the Director’s September 8, 2017 Application and Court Plan of Care.

These documents were sent by facsimile to T.F.M. at the Burnaby Youth Custody Centre where she was in custody. [ 19 ] On September 8, 2017, Tara Hall served S.J., representative of the [removed for publication] Nation by facsimile with the Director’s September 8, 2017 Application and Court Plan of Care. [ 20 ] On September 26, 2017, the Court made an order dispensing with service of the Director’s September 8, 2017 Application on G.K. At the time, the court relied on the affidavit of K.P. filed September 25, 2017. G.K. is C.A.’s spouse and works in remote camps

with restricted access. The Director could not locate G.K. to serve him; however, was confident G.K. is aware of these proceedings through C.A. Issue#1: Does the Director have to serve T.F.M.’s biological parents with the notice of these proceedings? [ 21 ] The Director did not serve M.M.M. or E.W.P. n otice of the time, date and place of this continuing custody hearing or with its September 8, 2017 Application and Court Plan of Care . Although M.M.M. and E.W.P. are T.F.M.’s biological parents, they are no longer her legal guardians.

Moreover, they live an unstable and transient lifestyle and their whereabouts are unknown. [ 22 ] On October 10, 2017, at the hearing of the September 8, 2017 Application, Counsel for the Director sought the following: a. A declaration from the Director is not required to serve M.M.M. and E.W.P. with notice of these proceedings; b. If the court finds the Director is required to serve M.M.M. and E.W.P. with notice of these proceedings, then the Director seeks an order dispensing with service; and c.

If service is required, and the court declines to make an order dispensing with service, then the Director asks for an adjournment to serve M.M.M. and E.W.P. with notice of these proceedings and the next court date. [ 23 ] Counsel for the Director points out that T.F.M. and her siblings were removed from M.M.M. and E.W.P.’s care in February 2012. T.F.M. was subsequently in the Director’s care from the time of her removal until Judge Birnie transferred her custody to G.K. and C.A. on February 3, 2016. Until she was placed with G.K. and C.A., T.F.M. refused to remain in any MCFD foster home in which she was placed.

Instead, T.F.M. chose a feral and transient existence engaging in extremely high risk behaviours. These behaviours include (

a) participating in criminal activity; (

b) exposing herself to sexual exploitation; (

c) using street drugs; and (

d) engaging in self- harm; (

e) hitch hiking and (

f) couch surfing. [ 24 ] Throughout that time T.F.M. was in MCFD care, her biological parents, M.M.M. and E.W.P., have been unable to meet even their own needs.

They made no effort to address MCFD’s protection concerns as set out in Director’s August 2, 2017 Form A Report to Court: The Ministry of Child and Family Development has been involved with T.F.M.’s biological parents since 1997 due to ongoing domestic violence, drug and alcohol abuse, use of inappropriate caregivers, ongoing and chronic neglect of the children and lack of medical treatment for the children. [ 25 ] In February 2016, the MCFD found a placement for T.F.M. with C.A. and G.K.

T.F.M. seemed content in C.A. and G.K.’s home - so much so that on January 24, 2017, Judge Jackson ordered custody of T.F.M. be permanently transferred to C.A. and G.K. With that order M.M.M. and E.W.P. lost legal guardianship of T.F.M. and C.A. and G.K. became T.F.M.’s new legal guardians. [ 26 ] Unfortunately, T.F.M.’s relationship with C.A. and G.K. also unravelled. On July 27, 2017, MCFD removed T.F.M. from G.K. and C.A.’s care upon their request.

On August 2, 2017, the Director filed the requisite Form A Report to Court summarizing the reasons for T.F.M.’s removal. [ 27 ] On August 15, 2017, Judge Jackson ordered T.F.M. remain in the interim care of the Director. Even before the presentation hearing, on September 8, 2017, the Director filed its Form 2 Application for continuing custody of T.F.M. [ 28 ]

Section 38 of the CFCSA sets out the notice requirements. It states in part: Notice of protection hearing 38

(1) At least 10 days before the date set for a protection hearing, notice of the time, date and place of the hearing must be served as follows: (

a) on the child, if 12 years of age or over; (

b) on each parent; (

c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band; . . .

(2) The notice must specify the orders the Director intends to request and include a copy of any plan of care the Director intends to present to the court, unless the parent and any other person entitled to notice agree to wait until a later date for that information. [ 29 ] Counsel for the Director submits that in this case, it is not entirely clear who is a “parent” and entitled to notice of these proceedings.

It is uncertain whether M.M.M. and E.W.P. continue to be T.F.M.’s “parents” for the purposes of the CFCSA as a result of Judge Jackson’s January 24, 2017 order permanently transferring custody of T.F.M. to C.A. and G.K. pursuant to s. 54.01 of the CFCSA . [ 30 ] The Director points out that s. 1 of the CFCSA , defines “parent” as follows: "parent" includes (

a) a person to whom guardianship or custody of a child has been granted by a court of competent jurisdiction or by an agreement, and (

b) a person with whom a child resides and who stands in place of the child's parent or guardian,

but does not include a caregiver, prospective adoptive parent or Director; [31] Although it is clear that on January 24, 2017, C.A. and G.K. became T.F.M.’s legal guardians, it is not clear whether theydisplaced M.M.M. and E.W.P. as T.F.M.’s parents. The Director queries whether, as a result of Judge Jackson’s January 24, 2017 order,M.M.M. and E.W.P. ceased to be T.F.M.’s parents for all purposes. [32] The definition of “parent” under s. 1 of the CFCSA is inclusive.

Section 54.2, which sets out the effect of the permanenttransfer of custody, does not assist in determining the residual status of the T.F.M.’s biological parents. [33] Also relevant to this analysis is the definition of “parent” under s. 1 the Family Law Act, S.B.C. 2011, c. 25, which states"parent" means a parent under

Part 3. [34] I have reproduced ss. 23 and 26 of the FLA below for ease of reference.

Part 3, Division 2 - Division 2 — Determining Parentage Parentage to be determined by this

Part 23

(1) For all purposes of the law of British Columbia, (

a) a person is the child of his or her parents, (

b) a child's parent is the person determined under this Part to be the child's parent, and (

c) the relationship of parent and child and kindred relationships flowing from that relationship must be as determined under thisPart.

(2) For the purposes of an instrument or enactment that refers to a person, described in terms of his or her relationship to another personby birth, blood or marriage, the reference must be read as a reference to, and read to include, a person who comes within the descriptionbecause of the relationship of parent and child as determined under this Part. . . . Parentage if no assisted reproduction 26

(1) On the birth of a child not born as a result of assisted reproduction, the child's parents are the birth mother and the child'sbiological father.

(2) For the purposes of this section, a male person is presumed, unless the contrary is proved or subsection (3) applies, to be a child'sbiological father in any of the following circumstances: (

a) he was married to the child's birth mother on the day of the child's birth; (

b) he was married to the child's birth mother and, within 300 days before the child's birth, the marriage was ended (

i) by his death, (ii) by a judgment of divorce, or (iii) as referred to in

section 21; (

c) he married the child's birth mother after the child's birth and acknowledges that he is the father; (

d) he was living with the child's birth mother in a marriage-like relationship within 300 days before, or on the day of, the child'sbirth; (

e) he, along with the child's birth mother, has acknowledged that he is the child's father by having signed a statement under section3 of the Vital Statistics Act; (

f) he has acknowledged that he is the child's father by having signed an agreement under

section 20 of the Child Paternity andSupport Act, R.S.B.C. 1979, c. 49. [35] Sections 23 and 26 of the FLA establish that absent adoption and assisted reproduction, biological parents remain a child’sparents forever. This is gleaned from s. 23(1) which states, “For all purposes of the law of British Columbia.” [36] Judicial

interpretation of legislation begins with the modern rule of statutory

interpretation. The words of a statute must be readin their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the act, the object of the act, and theintention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. [37] In Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , the Supreme Court noted: [27] The preferred approach recognizes the important role that context must inevitably play when a court construes the written words ofa statute: as Professor John Willis incisively noted in his seminal

article "Statute

Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1,at p. 6, "words, like people, take their colour from their surroundings". This being the case, where the provision under consideration isfound in

an Act that is itself a component of a larger statutory scheme, the surroundings that colour the words and the scheme of the Act

are more expansive. In such an instance, the application of Driedger's principle gives rise to what was described in R. v.Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867, 2001 SCC 56 , at para. 52, as "the principle of

interpretation that presumes aharmony, coherence, and consistency between statutes dealing with the same subject matter". [38]

Section 12 of the

Interpretation Act, R.S.C. 1985, c. I-21 states that: Enactments deemed remedial 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects. [39] The Director concedes the FLA likely preserves M.M.M. and E.W.P.’s parental status notwithstanding their loss of parentingrights to and parenting responsibilities for T.F.M. under the CFCSA.

Reading CFCSA in harmony with the FLA militates toward an orderrequiring the Director serve M.M.M. and E.W.P. with notice of these proceedings and a copy of its September 8, 2017 Application andCourt Plan of Care. [40] Counsel for the Director submits the unintended consequence of the overarching language in s. 23 of the FLA is that theM.M.M. and E.W.P. could attend the hearing of these proceedings even though there is no order the court can make in their favour. [41] Counsel for the Director points to the s. 41.1 of the CFCSA which sets out the court’s jurisdiction at a protection hearing. Itstates: 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'sbest 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'ssupervision 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 theDirector'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. [42] There is no provision in s. 41.1 of the CFCSA allowing the court to return T.F.M. to the care of her biological parents. InT.F.M.’s case, the parent entitled to custody, is either C.A. or G.K. M.M.M. and E.W.P. have no lis in the proceedings before the court. Their participation in these proceedings would not benefit themselves or T.F.M.

It may only serve to revive the painful memory ofhaving lost their children to MCFD long ago. [43] The court record and the testimony of social worker Delena Carl indicate M.M.M. and E.W.P. have taken minimal interest inT.F.M.’s legal status and welfare since Judge Birnie’s January 29, 2016 order, placing C.M.M. and F.M.M. in the continuing custody ofthe Director pursuant to s. 49(10)(

a) of the CFCSA. Since that time, neither M.M.M. nor E.W.P. has attended court proceedingsinvolving T.F.M. Moreover, M.M.M. and E.W.P. are in no better position now to parent T.F.M. than they were in 2016. If anything,their capacity to parent has diminished.

Decision on Issue #1: [44] I find that M.M.M. and E.W.P. are still T.F.M.’s parents even though they are not her legal guardians. [45] I find the Director was required to serve M.M.M. and E.W.P. with notice of these continuing custody proceedings with respectto T.F.M., together with a copy of the September 8, 2017 Application and Court Plan of Care. [46] Under s. 69 of the CFCSA, the court is empowered to vary notice requirements or to make orders without notice. It states: 69

(1) The Supreme Court or the Provincial Court may (

a) shorten the time period for serving a notice under this Act or extend the period even though it has expired, or (

b) dispense with a requirement that notice of a proceeding or of all proceedings in relation to a child be served on a party or otherperson.

(2) The Supreme Court or the Provincial Court may make an order, including a protective intervention order or restraining order, withouta party or the person against whom the order is made having been served with notice of the application.

(3) The Supreme Court or Provincial Court may include in an order made in accordance with subsection (2) any terms relating to serviceand review of the order that the court considers just. [47] I find it is in T.F.M.’s best interests to dispense with service of notice of these proceedings and supporting documents onM.M.M. and E.W.P., and so order. In reaching this conclusion, I have considered: (

a) T.F.M. will be 18 in less in two weeks and makes her own decisions as to what contact and communication she has with herbiological parents; (

b) T.F.M. is in residential treatment until February 21, 2018, and then subject to a YCJA Intensive Supervision and Support Order

from August 21, 2018; (

c) M.M.M. and E.W.P. have not been involved in T.F.M.’s life for almost two years; (

d) M.M.M. and E.W.P.’s whereabouts are unknown. From what information MCFD does have, the MCFD social workers reasonably believe neither M.M.M. nor E.W.P. is able to parent or provide a home for T.F.M.; (

e) The court cannot make a CFCSA order returning T.F.M. to M.M.M. and E.W.P.’s care; (

f) It is unlikely M.M.M. and E.W.P.’s participation in these proceedings could assist T.F.M. in a meaningful way; and (

g) Adjourning these proceedings to allow the Director time to serve M.M.M. and E.W.P. with notice will unduly delay this process. In this regard, I am mindful of the guiding principles set out in s. 2(

g) of the CFCSA which state: “decisions relating to children should be made and implemented in a timely manner.” Evidence of the Director [ 48 ] The facts upon which the Director bases its application for a continuing custody order are set out in the Form A, Report to Court filed August 2, 2017, in which social worker and delegate Delena Carl (aka Delena Weibe) set out the circumstances which caused the Director to remove T.F.M. from C.A. and G.K.’s care. [ 49 ] Social Worker Carl testified at the October 10, 2017 hearing.

She has worked with MCFD as a social worker for four years and has been involved with T.F.M. for that entire time. [ 50 ] MCFD has been involved with T.F.M. since she was 19 months old. MCFD’s concerns about M.M.M. and E.W.P.’s parenting are longstanding. M.M.M. and E.W.P.’s ability to parent their children was undermined by rampant domestic violence and substance abuse. On March 16, 2012, Judge Milne ordered T.F.M. and her four siblings remain in the interim custody of the Director.

Eventually, M.M.M. and E.W.P. lost custody of all their children. [ 51 ] Social worker Carl has not seen M.M.M. or E.W.P. since January 2016. At that time, M.M.M. or E.W.P. lived in Burns Lake; however they had had no stable residence. Social worker Carl has information that M.M.M. and E.W.P. now live in Prince George couch surfing among friends or relatives. Sometimes M.M.M. stays at a women’s shelter. [ 52 ] C.A. and G.K. assumed custody of T.F.M. on February 3, 2016. While T.F.M. resided with C.A. and G.K., she had minimal contact with M.M.M. or E.W.P.

T.F.M. connected with her biological parents through social media. Occasionally, T.F.M. had incidental in-person contact while M.M.M. or E.W.P. while out and about in the community. [ 53 ] M.M.M. and E.W.P. have had only minimal contact with any of their children for some time. [ 54 ] Eventually C.A. and G.K.’s ability to parent T.F.M. was undermined by T.F.M.’s extreme high risk and ungovernable behaviours. [ 55 ] As to less disruptive measures than removal, MCFD has run out of options for T.F.M.

As social worker Carl states in the August 2, 2017 Form A Report to Court: The Director has attempted on several occasions many least intrusive measures throughout the Director’s involvement including Voluntary Care Agreements, supervision orders, providing financial support to family members and friends to care for T.F.M., direct support to M.M.M. and her daughters and working with the transition house in order to provide a safe place to stay. [ 56 ] At the time of her removal on July 27, 2017, T.F.M. was not residing in a Ministry approved foster home.

In the Director’s August 2, 2017 Report to Court, Social Worker Carl stated: T.F.M.’s behaviours are so high risk that the Director is taking a creative approach to working with her to ensure her safety. At this time T.F.M. is continuing to engage in high risk behaviours and has agreed to check in with social workers to advise the Director of her whereabouts. Legal Framework [ 57 ] I have considered the Child, Family and Community Service Act with particular attention being given to Sections 2 , 4 , 13 , 40 , 41 and 50 as set out below:

Section 2: [ 58 ] In making any decision under the CFCSA , the Court must consider the following guiding principles: 2. This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

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

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

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

(

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

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

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

g) decisions relating to children should be made and implemented in a timely manner. [ 59 ]

Section 4 references out the best interests of the child. It states: 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 the child’s best interests, including for example: (

a) the child’s safety; (

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

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

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

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

f) the child’s views; (

g) the effect on the child if there is delay in making a decision. [ 60 ]

Section 13 sets out when protection is needed.

Section 13(

l) states: 13(1) A child needs protection in the following circumstances: (

l) if the child is in the care of a Director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force. [ 61 ]

Section 40 sets out what is to occur at protection hearings: 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 custody unless the child has already been returned, and (

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

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

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

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

section 41. [ 62 ] The Director seeks a continuing custody order under

section s. 41(1)(d).

Section 41 states: Orders made at protection hearing 41

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

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

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

section 43; (

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

section 43; (

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

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

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

b) or (

c) the child (

a) be returned to the parent, and (

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

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

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

(

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

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

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under

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

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

section any terms or conditions recommended by the Director to implement a plan of care. [ 63 ]

Section 50 sets out the effect of a continuing custody order. It states: 50

(1) When an order is made placing a child in the continuing custody of a Director, (

a) the Director becomes the sole personal guardian of the child and may consent to the child's adoption, (

b) the Public Guardian and Trustee becomes the sole property guardian of the child, and (

c) the order does not affect the child's rights respecting inheritance or succession to property. Analysis [ 64 ] At issue is whether the best interests of T.F.M. require a continuing custody order. To determine this issue, I must consider those factors set out in s. 49(6) of the CFCSA . Factor (a): the past conduct of the parent towards any child who is or was in the parent's care [ 65 ] T.F.M.’s biological parents, M.M.M. and E.W.P., are unable to parent T.F.M. because of their own dysfunction.

T.F.M.’s legal guardians, C.A. and G.K., are unable or unwilling to parent T.F.M. because of T.F.M.’s unruly and extreme behaviours. Factor (b): the plan of care [ 66 ] MCFD’s overall plan of care for T.F.M. is to provide her with permanency, considering all permanency options available to MCFD in conjunction and collaboration with aboriginal agencies and the community. [ 67 ] T.F.M. will “age out” on her 19 th birthday on [removed for publication]. The Director’s long term plan is to keep T.F.M. safe and alive.

The greatest obstacle to this goal is T.F.M.’s substance abuse, which includes both drugs and alcohol, her criminal activities and difficult behaviours. Factor (c): the child's best interests [ 68 ] I will next analyse each of the factors in s. 4(1) of the CFCSA . Section 4(1)(a): the child’s safety [ 69 ] The guiding

section 2 principles make it clear that a child’s safety and well-being is the paramount consideration in child protection hearings. Principally, the preferred environment for a child is in the family home, provided the safety and well-being of the child can be met in that home with proper supports. MCFD has endeavoured to provide T.F.M. with those supports without success. [ 70 ] MCFD must now resort to creative measures to keep T.F.M. safe. Currently, T.F.M. is in the [removed for publication] Residential Treatment Centre in Kamloops, B.C.

If she remains there and addresses her substance abuse, the Director is hopeful T.F.M. will cooperate with MCFD social workers’ attempts to keep her safe and alive. Section 4(1)(b): the child’s physical and emotional needs and level of development [ 71 ] T.F.M. is not yet an adult. She has a penchant for engaging in extreme high risk behaviours and alienating her caregivers.

MCFD social workers are doing what they can to meet her physical and emotional needs, but T.F.M. needs to recover from her addictions and cooperate with MCFD’s efforts to help her. [ 72 ] In 2015, after an assessment, T.F.M. was diagnosed with Fetal Alcohol Spectrum Disorder.

MCFD hopes that the [removed for publication] Residential Treatment program will assist T.F.M. in learning to live a sober and healthy lifestyle. [ 73 ] In the September 8, 2017 Court Plan of Care the Director voiced its intention of supporting T.F.M.’s attending school as well as accessing health care as her needs arise. [ 74 ] T.F.M. needs a safe and stable environment for the sake of her physical and emotional development.

Section 4(1)(d): the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship [ 75 ] While she is engaging in high risk activities, T.F.M.’s guardians have adopted a “tough love” approach to T.F.M. C.A. and G.K. have expressed their love and deep sense of caring for T.F.M. They just reached a point where they could no longer manage her

complex needs and behaviours. If she makes healthy changes in her life, C.A. and G.K. may resume T.F.M.’s care.

By healthy changes they mean that T.F.M. will undertake and complete a residential treatment program and significantly moderate her current high risk behaviours. [ 76 ] Social Worker Carl says that should T.F.M. succeed in modifying her behaviour and C.A. and G.K. are willing to resume T.F.M.’s care, the Director would consider cancelling the continuing custody order. [ 77 ] In the September 8, 2017 Court Plan of Care the Director stated it was working collaboratively with T.F.M. to ensure she receives supervised visits with her younger siblings in foster care upon request. [ 78 ] T.F.M. has contact with her immediate and extended family members at her own initiative and discretion.

Section 4(1)(e): the child’s cultural, racial, linguistic and religious heritage [ 79 ] The Director has involved the [removed for publication] Nation to assist in finding a safe and stable placement for T.F.M. [ 80 ] The Director states in its Court Plan of Care that MCFD will work with the [removed for publication] Nation and consider their recommendation to ensure T.F.M. has access to aboriginal religious, culture and social activities. Section 4(1)(f): the child’s views [ 81 ] T.F.M. has been served with notice of these proceedings and a copy of the Director’s application.

T.F.M.’s social workers have talked to her about her residence, including her attendance at the [removed for publication] Residential Treatment facility. [ 82 ] T.F.M. has expressed a willingness to work with MCFD to find a placement which will be the right fit for her. Section 4(1)(g): the effect on the child if there is delay in making a decision [ 83 ] T.F.M. needs to have a safe and stable home upon completing her residential treatment program. The Director is legitimately concerned about T.F.M.’s self-destructive choices.

MCFD social workers have and will continue to do what they can to keep T.F.M. safe and provide her with the necessities of life. Issue #2: Is T.F.M. in need of protection? [ 84 ] Upon reviewing the court history and materials filed in these proceedings and upon hearing social worker Delena Carl, I find that T.F.M.’s current guardians, C.A. and G.K., are unable or unwilling to care for T.F.M. and are unable to make adequate provision for her care. Issue #3: Should T.F.M. be placed in the continuing care of the Director? [ 85 ] Section 41(1)(

d) of the CFCSA provides that if the court finds a child in need of protection at a protection hearing, the court may order the child be placed in the continuing custody of the Director in the circumstances that are set out in s. 41(2). One of the three circumstances set out in s. 41(2) is if a parent is unable or unwilling to resume custody of the child. This is the circumstances in this case. [ 86 ] I conclude it is in T.F.M.’s best interest she be placed in the continuing custody of the Director, and so order.

Access [ 87 ] The Director has not precluded the possibility that T.F.M. be returned to C.A. and G.K.’s care sometime in the future. As counsel for the Director has aptly stated, T.F.M. is 17 and makes her on decisions as to who she will see and when. [ 88 ] I have not been asked to make an order for access pursuant to s. 56(3) of the CFCSA , and decline to do so.

Summary [ 89 ] In

summary, I find that T.F.M. was in need of protection at the time she was removed from C.A. and G.K.’s care on July 27, 2017. T.F.M.’s legal guardians are unable or unwilling to resume custody of T.F.M. Accordingly, I order that T.F.M. , born [removed for publication], be placed in the continuing custody of the Director pursuant to section 41(1)(

d) of the CFCSA . “Judith Doulis” __________________________ J. T. Doulis Provincial Court Judge