Director v. B. and B. Date:, 2011 BCPC 72

Citation: Director v. B. and B. Date: 20110302 2011 BCPC 0072 File No: F10073 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: K.B., born [DOB] B.B., born [DOB] B.T.B., born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: Z.B. and P.B. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE CHIEF JUDGE CRABTREE Counsel for the Director: Finn Jenson, Q.C. Counsel for the Parents: D.H. Christie Place of Hearing: Chilliwack , B.C.

Dates of Hearing: January 13, 14, 15, February 2, 3, 4, 5, 8, 9, 11, 12, 22, 23, 25, 26 August 9, 10, 11, 12, 13, September 21, 30, October 6, November 8, 2010 Written Submissions Filed: November 8, 2010 Date of Judgment: March 2, 2011 A corrigendum was released by the Court on March 29, 2011; the corrections have been made to the text and the Corrigendum is appended to this document. Introduction [ 1 ] This case involves consideration of what happened to an infant in the first six to eight weeks of her life. Baby B. suffered injuries which have required significant medical intervention and ongoing treatment.

The primary issue for determination is the cause of the injuries suffered by the infant. In this regard the Court has heard a significant body of medical evidence in an effort to resolve this question. [ 2 ] The proceedings commenced with the apprehension of the children following baby B.’s admission to the British Columbia Children's Hospital on October 22, 2007. The Presentation hearing pursuant to s. 35 of the Children, Family and Community Services Act (the “Act”) was held December 14, 2007. The matter was set for hearing twice but each time the matter was adjourned by the parties.

The trial commenced on January 14, 2010 and exceeded the original time set aside to hear the matter. As a result continuation dates were scheduled through to the fall of 2010. The matter culminated with the filing of the parents’ reply to submissions on November 8, 2010. [ 3 ] The Director has applied pursuant to s. 41(1)(

d) that the three children, K.B., B.B. and baby B., be placed in the continuing care of the Province. Relevant Legislation

[ 4 ] The provisions of the Act relevant to this application include: 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. Best Interests 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.

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. Orders Made at Protection Hearings 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. [ 5 ] Section 41(1) sets out the orders that the Court can make at a Protection hearing if the children are in need of protection, which includes placing the children in the continuing care of the Director.

However, a continuing custody order must not be made at this stage of the process unless the harm the children have suffered or are likely to suffer is such that there is little prospect that it would be in the children’s best interest to be returned to the parent. [ 6 ] Counsel for the Director submits that in this particular case the three infant children are in need of protection and that in the circumstances of this particular case they should be placed in the continuing care of the Director.

Counsel for the Director submits that baby B. suffered either a non accidental injury or unexplained injuries of significance while in the care of her parents. In failing to discharge their duties, the parents have placed the children at risk of further physical harm and as a result they are in need of protection.

The Director then submits that based on the lack of taking steps to remedy the situation giving rise to the finding, and the lack of evidence before the Court, the children should be placed in the continuing custody of the Director. [ 7 ] The parents submit that baby B.’s injuries were as a result of the child B.B. falling on his sister and his head striking hers. This was the cause of all the injuries except the metaphyseal fracture which was caused in the course of baby B. undergoing medical procedures at the MSA Hospital in Abbotsford, B.C.

Accordingly, the children should be returned to the care of their parents. [ 8 ] An application pursuant to s. 41 contemplates a 2-stage process: a. In the first stage the Court must be satisfied that the children are in need of protection; and b. In the event that the Court finds the children in need of protection, the second stage is to determine whether they should be placed in the continuing care of the Director. Stage One [ 9 ] The first stage of the application focuses on the issue of whether or not the children are in need of protection.

It is the Director’s position that at the time of the removal on October 22, 2007, the children were in need of protection. [ 10 ] The central issue to resolve at this stage is what happened to baby B.? There is little issue with the assertion that baby B. suffered injuries which occurred while in the parents’ care. The circumstances surrounding how baby B. incurred the injuries are the central focus of this proceeding. [ 11 ]

Section 13 of the Act outlines the basis on which a protection finding can be made. Section 13(1) provides: 13

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

a) if the child has been, or is likely to be, physically harmed by the child's parent; (

b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child's parent is unwilling or unable to protect the child; (

d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent; (

e) if the child is emotionally harmed by the parent's conduct; (

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 or consent 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 care when the agreement is no longer in force.

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

b) and (

c) and section 14 (1) (

a) but without limiting the meaning of "sexually abused" or "sexually exploited", a child 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.

[ 12 ] The Director submits that the children are likely to be harmed as a result of the injuries suffered by the infant child. In other words, the Director submits that baby B. suffered from unexplained injuries while in the care of her parents. Given the unexplained nature of the injuries this puts all three children at risk that they are likely to be physically harmed by the parents, through their failure to protect the children or through neglect. As a result they are in need of protection. Chronology [ 13 ] Mr. B. is 35 years of age. Mrs. B. is 38 years of age. Mr. and Mrs.

B. have been married for approximately nine years and have three children: K.B., born [DOB]; B.B., born [DOB]; and B.T.B., born [DOB]. [ 14 ] In early 2005 Mr. B. suffered a fairly significant work related injury that forced him to be off work for a number of months. Mrs. B. indicated that the residual effect of the accident was that Mr. B. suffered from migraine headaches. He had difficulty with noise and his balance. She indicated that he had a problem with the sound of children crying and he would at times put on ear muffs in an effort to block the noise.

As well, he would go down to the basement in an effort to avoid the noise. [ 15 ] Due to Mr. B. being off work, the family finances were “tight” following the accident. [ 16 ] Mrs. B. had what could be described as high risk pregnancies; the child K.B. was born approximately 6 weeks premature and the child B.B. was born very premature at 25 weeks. The child B.B. was hospitalized for approximately 10 weeks and discharged on September 6, 2005. While he was in hospital he had a number of medical problems. [ 17 ] On December 31, 2005, the child B.B. suffered from what Mrs. B. described as an apnoeic attack.

The child was placed in the baby bassinette while Mrs. B. stepped into the bathroom. She came out of the bathroom a short time later and observed Mr. B. with the child in the bedroom behind the bathroom door. According to Mrs. B. the child B.B. was not breathing. The child resumed breathing and was taken to the doctor the next day. [ 18 ] For the next two weeks the parents took turns watching the child to ensure that the problem did not reoccur. [ 19 ] The B.s went to the food bank in Langley, B.C. on the morning of January 13, 2006.

The two children, K.B. and B.B., were in their car seats and remained in the vehicle while Mrs. B. went into the food bank. She was in the food bank for approximately 45 to 60 minutes. When she returned, the child B.B. was crying; in fact it was her understanding (from her husband) that the child B.B. had been crying for most of the time she had been away from the car. [ 20 ] It was noted that the child B.B.’s crying was different than his normal crying sounds. [ 21 ] The family returned home, at which point they discovered that the child B.B.’s right arm appeared to be limp.

As a result, they went and had the child examined at the Langley Memorial Hospital later that same morning. The child was x-rayed and was observed to have a traverse fracture and two old fractures to the right arm. The breaks, according to the limited assessment of Dr. Hlady, were thought to be suspicious and indicative of physical abuse. [ 22 ] As a result of the findings, Dr. Hlady notified the Ministry. Social worker Gail McQueen was assigned the file and commenced an investigation.

The RCMP was contacted and a criminal investigation was initiated. [ 23 ] As a result of these developments, a safety plan was put in place by the social worker. Mrs. B. would remain in the home with the child K.B. The child B.B. was admitted to the hospital and upon his discharge would return to live with his mother. Mrs. B.’s mother would assist Mrs. B. in the care of the children. For the time being Mr. B. would relocate to his in-laws’ basement suite and have no contact with the children and not attend the residence. [ 24 ] Following his interview with the RCMP, Mr.

B. was charged in connection with the injuries to the child B.B. [ 25 ] Between January 14 and February 9, there was considerable medical investigation undertaken with respect to the fractures suffered by the child B.B. as well as an examination into the child K.B.’s well-being. The examination and assessment included the participation of a number of health care professionals. [ 26 ] After viewing additional x-rays and consulting with her colleague, Dr. Hlady modified her initial view.

She opined in a letter dated February 15, 2006 (Exhibit 44) that the fractures are almost certainly related to his extreme prematurity. [ 27 ] Dr. Whitfield, a neonatologist, opined in a letter dated February 7, 2006 (Exhibit 2) that the fractures suffered by the child B.B. are related to osteopenia of prematurity. [ 28 ] Based on the medical results received, the Ministry completed the investigation and concluded there was no further need for Ministry involvement.

This was confirmed in the letter dated February 14, 2006, (Exhibit 1). [ 29 ] As a result the Ministry closed their file and the criminal matter ended. Mr. B. returned to the family home in Langley, B.C. and continued working in the Surrey area. [ 30 ] The B.s moved to Hope, B.C. in August 2006. Mr. B. returned to work shortly before the move and was employed by a company in Aldergrove. The move was brought about, according to Mrs. B., by their desire to acquire a one-level home with land. The Town of Hope was an attractive area in that housing was more affordable, Mr.

B. could continue to commute to work and Mrs. B. would also be able to teach piano. They moved into the house and this is where the family resided through to the time that baby B. was apprehended. [ 31 ] Upon moving to Hope, the family became involved in a local church which they attended regularly. Mr. B. became a member of the church board soon after the move. This was a position he held until his resignation in August 2007. The B.s met a number of people

on their move to Hope; a number of the acquaintances were people involved in the church, including Mr. and Mrs. Hoffman, the pastor of the church and his wife. They socialized together between fall 2006 and spring 2007. [ 32 ] In October 2006 Mrs. B. became pregnant with baby B. Her pregnancy was a difficult one. [ 33 ] Due to the previous premature birth of the child B.B. at 25 weeks, healthcare providers expressed concern over the pregnancy. At 12 weeks, Mrs. B. received a cervical stitch.

She was directed to rest for a period of four months from February to May 2007. [ 34 ] This was a somewhat stressful period for the B.s. Mrs. B. remained at home with Mr. B., caring for the children during the day. Mr. B. would travel back and forth to Aldergrove to work. Mrs. B.’s mobility was curtailed due to the concerns over the pregnancy.

At the same time, the two young children, (K.B., now age 2 ½ and B.B., age 2) placed significant demands on the parents in terms of the care and attention they required. [ 35 ] During this time, the Hoffmans provided some assistance by dropping over to the home, bringing food and socializing with the family. [ 36 ] Mr. B.’s employment was subsequently terminated due to a lack of work and closing down the night shift. As a result, the family income was reduced to UIC benefits and the small amount of earnings Mrs. B. saved when she was able to teach piano. [ 37 ] According to Mrs.

Hoffman, she felt that the two families were pretty close by the end of 2006. The relationship continued, but in the months leading up to the birth of baby B., there was less and less contact with the B.’s. Mrs. Hoffman said she felt the B. family was becoming isolated. [ 38 ] At some point in time there was what can be described as a falling out between the B.s and the Hoffmans over a disagreement regarding Mrs. B. working for Mrs. Hoffman, teaching music at the studio that Mrs. Hoffman was opening up. Mrs. Hoffman indicated that Mrs.

B. had previously committed to teaching music in her studio, and then decided not to about 2 weeks before Mrs. Hoffman’s business was set to open. Mr. B. resigned from the church board and the two families did not see each other or communicate as frequently as they had previously. [ 39 ] In the last three months prior to baby B.’s birth, Mrs. B.’s situation did not improve; the pregnancy continued to be a difficult one. During this period of time, she rested and spent more time in bed. She rarely went outside. [ 40 ] Mrs.

B. took no supplements during the pregnancy due to the B.s’ limited financial situation; she was unable to afford them. [ 41 ] Baby B. B. was born [DOB]. She was born premature at 34 weeks gestation. Baby B. remained in the hospital for the first two weeks. In the hospital, there was a concern over her lack of feeding and her loss of weight. As a result, she was fed formula. [ 42 ] Baby B. was released from hospital on August 17, 2007. The first two weeks at home, she appeared to be progressing normally. There was always a concern about baby B.’s need to gain weight but she appeared to be doing reasonably well.

During that period she was seen by public health and family health care providers and no concerns were noted. [ 43 ] There were no reported difficulties in the first two weeks of September. Both parents were at home caring for the three children. [ 44 ] Mr. Hoffman indicated that following baby B.’s birth the B. family had become more remote in his view, and there was less and less contact with the family. [ 45 ] In the later part of the month of September, baby B. developed medical issues. [ 46 ] On September 23, shortly before dinner, Mrs.

B. finished breast feeding baby B. and placed her on a blanket on the living room floor. She was laid down on a carpeted area below an alcove which provided an opening between the living room and the kitchen. According to Mrs. B., her husband was in the kitchen cooking the evening meal and watching over baby B. Mrs. B. returned to the bathroom adjoining the master bedroom to express breast milk. The child K.B. and the child B.B. were on the main level of the residence playing. [ 47 ] Baby B. had been lying on her tummy on the carpet for about 15 minutes when Mrs.

B. came out of the bathroom and reached the bedroom door. At this moment she observed the child B.B. stumble and fall on top of baby B.. She observed that the child B.B.’s head was on top of baby B.’s head. Mrs. B. went over to where the two children were located and pulled the child B.B. off baby B. and picked her up. Baby B. whimpered but was not crying. Mrs. B. checked baby B. and the child B.B. and did not note any bruising or sign of injury on either of them. [ 48 ] Later the same evening, Mrs. B. thought baby B. was not feeding as well as she had been previously. Over the next several days, Mrs.

B. noted that baby B. continued to eat less. [ 49 ] On September 26, 2007, shortly after breast feeding, baby B. was again placed on the living room floor in a similar fashion as had been done on the earlier occasion. Mrs. B. returned to the bedroom to express breast milk. About 15 minutes later, she came back into the living room and observed Mr. B. holding baby B. with his finger in her mouth as if he was checking for something lodged in her mouth. [ 50 ] She noted the child had vomited and she was gasping for air.

It was apparent to her that baby B. was not doing well and both she and her husband became frantic. Mr. B. was slapping baby B.’s back and attempting CPR on her. [ 51 ] Mr. and Mrs. B. gathered up the two boys. Mr. B. held baby B., jumped down the stairs leading from the front door to the walkway and went to the family vehicle. The boys were put into the family vehicle. Mr. B. passed baby B. to her mother, who was seated in the vehicle, and he drove them all to the Hope Hospital located about 10 blocks away.

[ 52 ] At the hospital, baby B. was seen by Dr. Fourie. The child was given oxygen, observed for about one hour and discharged. The B.s returned home. [ 53 ] A few hours later, at approximately 1:00 am the next morning, the B.s returned to the hospital in Hope, B.C. The parents had observed that baby B. was not feeding and was unable to move her limbs. [ 54 ] The child was transferred, by the parents, to the MSA Hospital located in Abbotsford, B.C. Baby B. was admitted to the MSA Hospital. She was seen by Dr. Sorial, a pediatrician. She was found to be anemic; she had very low hemoglobin of 77.

Her head circumference was larger than usual. She was watched for a period of time and then discharged. The doctors there believed she may have been suffering from a reflux disorder. [ 55 ] On September 30 th , the parents took baby B. to the emergency department at the hospital in Hope, B.C. as they continued to be concerned about her ongoing vomiting and the fact there was something unusual about the way she cried. The doctor was of the view the child was constipated. [ 56 ] Baby B. was seen for a follow up consultation with Dr.

Sorial on October 3, 2007 at which time it was noted her weight had dropped since her admission on September 27 th , from 3.3 to 3.1 kilograms. [ 57 ] While the foregoing events were taking place, the Hope office of the Ministry of Children and Family received a call on October 1, 2007 relating to a concern over the welfare of the B. children. The call was from the Hoffmans who had become concerned that the family had become withdrawn and that the children looked underdeveloped and had recently been taken to the hospital in Hope. Mr. Gulbot, a social worker and team leader for Hope, took the call.

Upon receiving the information and completing the preliminary in- office assessment, he developed an action plan, which included conducting a home visit. [ 58 ] Mr. Gulbot and Ms. Adams, a social worker with the Hope office, attended the B. residence on the same date.

They inspected the home and had a discussion with the parents, who provided information as to the ongoing supports in place for the children, particularly relating to the child B.B. and baby B.’s premature births. [ 59 ] During the consultation there was a discussion pertaining to the visit to the Hope hospital the preceding Wednesday, September 26 when baby B. had stopped breathing. [ 60 ] Follow-up calls were made to the health care professionals who were involved in the children’s care including the family doctor, public health nurse and support staff working at Hope Family Place. [ 61 ] In light of the initial concerns raised, the results of the interviews, the willingness of the parents to engage in programs and the available supports the decision was made to develop a collaborative plan to identify risks and to build up supports for the family rather than commence an investigation. [ 62 ] As a precautionary matter, the Ministry requested an assessment of the children be conducted by the children’s family physician.

This was completed on October 13, 2007 and no medical concerns were identified. [ 63 ] As part of the plan, Ms. White from Hope Community Services was assigned to assist in developing the supports which may be beneficial to the family. Other than the feedback received from the family physician and Ms. White, there were no new calls or concerns regarding the family following the home visit until Mr. Gulbot received a call from Ms. Green, a social worker at BC Children’s Hospital. [ 64 ] By October 6 th , Mrs. B. was concerned over baby B.’s medical issues.

She was taken to the Fraser Canyon emergency department in Hope with a history of nausea and vomiting over nine days. She was transferred to the Chilliwack Hospital and subsequently to the MSA Hospital. During baby B.’s hospitalization from October 6 to 9 th , a number of tests were conducted, including a lumbar puncture, and x-rays were taken. Mrs. B. noted the difficulty that the nursing staff had in placing the infant in the appropriate position for x-rays to be taken and the lumbar puncture to be administered. [ 65 ] In the course of this procedure there was blood noted.

When analyzed, this was determined to be blood which had been in the cerebrospinal fluid for some time as opposed to fresh blood caused by the procedure to complete the lumbar puncture. This fact would subsequently be relevant in determining the age of the bleeding in the skull. A number of other tests were conducted with negative results. The doctor was concerned over the larger than normal head circumference of B. and ordered a CT scan. Due to the unavailability of staff to complete the CT scan, it was deferred.

Baby B. was discharged and returned home after several days. [ 66 ] On October 16, 2007, baby B. was seen for a follow up consultation with Dr. Ebesh who noted she had an enlarged head. As a consequence, an ultrasound and CT scan were arranged. [ 67 ] On October 18, 2007, baby B. saw Dr. Ebesh and a CT scan was conducted at the MSA Hospital. A large fluid collection was observed to be located in her skull, and the B.s were advised to take the child to Children’s Hospital. On arrival at the emergency department of Children’s Hospital, baby B. was seen by Dr. Cochrane, a neurosurgeon. Later she was seen by Dr.

Colbourne, a pediatrician and the child protection doctor on call that week. [ 68 ] Children’s Hospital Child Protection Team is a multidisciplinary team comprised of pediatricians, social workers, nurses, administrative assistants, psychologists and psychiatrists. The team takes referrals from all over the province relating to concerns of child maltreatment including physical abuse, sexual abuse and neglect. [ 69 ] Upon being consulted, Dr. Colbourne met baby B. and the parents in the emergency department.

She obtained a history, examined the child, and outlined the various investigations that needed to be done to determine the extent of the infant’s injuries. During the initial discussion the doctor learned that some time towards mid to late September there was an episode where baby B.’s brother had

fallen on her but that she seemed all right. In addition, Dr. Colbourne spoke to Dr. Ebesh and Dr. Sorial to obtain details of their involvement with the child. [ 70 ] Baby B. was admitted to the hospital and stayed there from October 19 to 25, 2007. In addition to various procedures and assessments undertaken, a shunt was inserted in order to drain fluids which had accumulated in the subdural area. This took place on October 19, 2007. [ 71 ] The children were removed on October 22, 2007. Baby B. was in Children’s Hospital and social workers went to the hospital on the direction of Mr. Gulbot to remove her.

The parents were there and were advised of this. Social workers Humeny and Gulbot attended the maternal grandparents’ residence in Surrey where the boys had been staying and advised they were being removed from the parents’ care. [ 72 ] The removal of the children by the Director was based upon the views expressed by the doctors at Children’s Hospital: Dr. Poskitt (radiologist), Dr. Gardiner (pediatric ophthalmologist), and Dr.

Colbourne (pediatrician). [ 73 ] The decision was made to leave the children K.B. and B.B. in the care of the grandparents, as this was deemed the least intrusive measure or course of action. Baby B. was discharged from Children’s Hospital on October 25, 2007 at which point she was placed in a foster home. [ 74 ] A Report to Court was filed at the Presentation hearing which was heard on December 14, 2007.

At this time an Interim Order was made by placing the children in the interim care of the Director, (see Exhibit 93.) [ 75 ] Over the course of the next few months, the children lived separately: the two boys with the grandparents and baby B. in a foster home. The parents were active in the children’s lives though limited by the Court order in place. The order specified supervised access, and it was the Director who arranged supervision services. [ 76 ] There were attempts to resolve the matter in whole or in part through mediation. The first such session was held March 7, 2008, but a resolution was not achieved.

A second mediation session was held May 16, 2008. [ 77 ] There is an issue as to whether the May 16 th session produced a resolution to some of the outstanding issues. The parties met on this date for a further mediation meeting. The parties left the meeting having produced a document which set out terms on which the two older children would be returned to the parents’ care. The agreement provides for a partial resolution of the matter. The agreement provided for the return of the two older children to the parents’ care under a supervision order on various terms and conditions.

These included a term that the parents would allow the social worker to inquire about the children and to have access to them. The agreement also provided that “the parties are to meet again in mediation on July 16 th , 2008…” [ 78 ] The agreement goes on to state “this document contains the whole agreement made between the parties” and that it will be filed with the Court.

The agreement appears to be signed by a number of people including the two social workers having conduct of the file, and the parents. [ 79 ] In May 2008, the two older children, who were the subject of this arrangement, were living with their maternal grandparents, as were their parents. There was no implementation plan referred to in the agreement and when they left the meeting Mrs.

B. testified that it was her understanding, based on the discussions at the meeting, that the two older children were now in the parents’ care and the parents could act as they wished with regards to the children, subject to the terms which had been agreed to. [ 80 ] Shortly following the mediation session, a news story appeared on a television newscast that showed an interview with Mr. and Mrs. B. and the children. The interview was conducted at the residence of the maternal grandparents. This was observed by Mr. Humeny who advised Mr. Gulbot. From Mr. Humeny’s perspective this was a problem.

He testified that as far as he was concerned, it demonstrated the parents had no intention of working with the Director, and the children’s privacy was breached. As the children were in the Director’s care, this raised a concern. In addition, since the grandparents had the children in their care at the time of the interview, it raised a question in the social worker’s mind whether they were exercising appropriate control in the residence. [ 81 ] Mr.

Gulbot, the supervisor, expressed similar concerns. [ 82 ] It is clear that following the broadcast, the relationship between the Ministry and the parents deteriorated. [ 83 ] Following the broadcast, attempts were made by the social worker to discuss the situation. Calls made to the grandparents’ home were not returned. [ 84 ] On June 12 th , social workers Gulbot and Humeny and a police officer attended the residence of the grandparents unannounced.

They arrived in the course of a birthday celebration organized for one of the boys. [ 85 ] The Ministry removed the two boys from the residence and placed them in the care of a foster home in the Agassiz, B.C. area. The two boys were in the foster home from June 2008 to January 2009. During this time, the parents exercised supervised access to the extent they were permitted. [ 86 ] During this period, baby B. continued to reside in a different foster home. [ 87 ] In January 2009 the children were reunited in one foster placement, operated by Tracy.

Having all three children located in this resource was a temporary placement. This resource did not have the capacity to care for all three children on a long-term basis. As well, it was the Ministry’s position to locate the children in a resource which was closer to where the parents reside. By this time, the parents had moved from Hope to Surrey. [ 88 ] Accordingly, once a foster resource was located in closer proximity to where the parents resided, the two boys were relocated

there and baby B. joined her brothers in October 2009. The three children have been together in this home since that time. The children have done well in the placement. [ 89 ] While in the Ministry’s care, the children’s medical needs have been addressed and monitored: a. The shunt which was originally placed during baby B.’s initial stay at Children’s Hospital in October 2007 was removed; b. Baby B. is involved in the Children’s Hospital Infant Outpatient program. She is receiving physiotherapy and has regular contact with the pediatrician. c. The child K.B. has no identifiable special needs or concerns; d.

The child B.B. participates in the infant development program, physiotherapy, and speech therapy. Medical Evidence [ 90 ] A number of Doctors testified at trial and a number of reports were filed. The Director relies on the expert evidence of Dr. Sargent, Dr. Gardiner, Dr. Colbourne and Dr. Alexander. The parents rely on the expert evidence of Dr. Plunkett and Dr. Barnes as well as the opinions expressed in writing filed on behalf of Dr. Gardner, Dr. Galaznick, Dr. Butt, Dr. Monson, Dr. Innis, Dr. Van Ee, and Dr. Stephens. Dr. Sargent [ 91 ] Dr. Poskitt was the consulting radiologist in October 2001. Dr.

Poskitt retired and was not available to testify at the hearing. As a result, arrangements were made for Dr. Sargent to review the images and to testify at the trial. Dr. Sargent is the head of radiology at Children’s Hospital. In preparation for undertaking the review and providing his opinion, Dr. Sargent had a conversation with Dr. Colbourne, at which time he was provided with brief information pertaining to the request. [ 92 ] The initial request for Dr. Sargent’s participation was made after Dr. Colbourne had completed her testimony on February 4, 2010. Dr. Sargent prepared a written

summary of his findings dated February 17, 2010 (Exhibit 82). [ 93 ] Dr. Sargent’s findings are as follows: a. Metaphyseal fracture of the proximal left femur; b. A right parietal skull fracture; c. Subdural collection; d. Possibility of a brain injury. [ 94 ] Dr. Sargent is unable to say with certainty how many, if more than one, traumatic events caused the injuries. In part this is because the age of the femoral fracture and the subdural haemorrhage overlap. Dr. Sargent found no evidence that the child suffered from congenital rickets. Dr. Barnes [ 95 ] Dr.

Barnes is the Chief of Pediatric neuroradiology at the Lucile Salter Packard Children’s Hospital, Stanford University Medical Centre in Palo Alto, California. [ 96 ] Dr. Barnes reviewed a number of documents and images in preparing his opinion, which was summarized in a written report dated July 15, 2008. [ 97 ] Dr. Barnes also found: a. a large right parietal skull fracture; b. very large chronic subdural collections; [ 98 ] These findings are entirely consistent in his view with the history of impact of head trauma (and associated unilateral retinal haemorrhage). During his testimony, Dr.

Barnes agreed with the suggestion that it would require a significant force, particularly impact to cause the skull fracture. Later, this was modified and he could not state the degree of force required. [ 99 ] Dr. Barnes disagreed with Dr. Sargent as to whether baby B. sustained a metaphyseal fracture of the proximal left femur. He noted a number of features which strongly indicate the presence of a metabolic or dysplastic bone condition, congenital rickets. [ 100 ] Dr. Barnes acknowledges that there is a possible injury to the brain. [ 101 ] Dr.

Barnes held the view that it was not possible to date the fluid collection. He said it could be recent or it could be old. He stated that, based on the medical information available to him, the fluid collection could date from pre-birth, birth, or some time following the birth. [ 102 ] Dr. Barnes is of the view that baby B. suffered from a vitamin D deficiency and had congenital rickets. [ 103 ] Congenital rickets is a disease affecting infants less than 6 months of age which is due to vitamin D deficiency and is defined as

an interruption in the development and mineralization of the growth plate of bone. Dr. Barnes stated that congenital rickets is a “bone fragility disorder” and infants can sustain fractures from minor traumatic episodes “that we wouldn’t even consider as trauma”. An insufficiency/deficiency of vitamin D levels in the blood does not constitute rickets, but it creates susceptibility to the condition. In his view, congenital rickets could not be eliminated as a possible cause without conducting such a test. [ 104 ] Dr.

Barnes notes that vitamin D deficiency rickets is persistent in Canada, particularly among children who reside in the north and who are breastfeed without appropriate vitamin supplementation. In this case, Mrs. B. was advised by a family physician to provide vitamin D supplements to baby B., which she testified she did do. Dr.

Barnes notes that the recommended dosage was one-half of the Canadian guideline amounts, which caused him some concern. [ 105 ] Upon examination of the various images made available to him, he found that the skeletal findings strongly indicate the presence of a metabolic and dysplastic bone condition, congenital rickets. [ 106 ] This assessment is based on the following: a. There was under-ossification, which was described as the situation where the face and skull bones have not formed adequate bone to be apparent on skull films. b. Marked anterior rib flaring; c. Coarse trabecular pattern of the long bones; d.

Cortical tunneling; e. Abnormal cupping. [ 107 ] In reference to the left proximal femur abnormality and the skull fracture Dr. Barnes stated: These are the only ones that I would be suspicious of being obviously a fracture due to trauma with the …with also the consideration that we may be seeing two areas of fracture from trauma that are the superimposed upon bones that are not developed normally that is why we would work up…do the work-up for a bone fragility disorder. [ 108 ] As noted above much of Dr. Barnes’s view rests on his opinion that baby B. suffered from congenital rickets. Dr.

Sargent disagreed with the assessment. [ 109 ] In Dr. Barnes’s view, this issue could be easily resolved by completing a vitamin D deficiency test. He noted that there is no substitute for completing this test. On the other hand Dr. Colbourne noted that such a test was not necessary because tests for calcium, phosphate, alkaline and phosphatase and a bone scan were completed. She was satisfied with the results and stated this provides a more reliable indicator of bone fragility than a vitamin D test. Dr. Barnes did not comment on the entire range of tests that were undertaken to assess bone fragility which Dr.

Colbourne ordered. Dr. Barnes did note that congenital rickets is a bone fragility disorder, and a test for vitamin D deficiency will only determine whether the precondition for this condition exists. Based on this, the assessment conducted by Dr. Colbourne provides a reliable indicator whether or not baby B. suffered from a bone fragility disorder. [ 110 ] Both Dr. Sargent and Dr. Barnes acknowledged that the

interpretation of skeletal images is highly subjective. This was brought to light when various images were referred to during cross-examination. The doctors endeavored to demonstrate their findings by pointing to various markings on the films. To the untrained eye, it was at times difficult to see the specific marking that was being described or referred to. In some respect, this would have been an occasion where having the two doctors attend and give evidence at the same time would have been beneficial.

This would have assisted in highlighting the differences and points of contention in their opinions. [ 111 ] I also note that Dr. Barnes did not have all the images to review prior to expressing his opinion. In the course of his testimony he acknowledged that the additional x-ray and the CT scan would have assisted in the formulation of his opinion. [ 112 ] In the final analysis there was little disagreement or difference in the opinions of Dr. Sargent and Dr. Barnes but for the issue of whether baby B. suffered from congenital rickets.

This is of course important given the fractures to the proximal femur and the skull. [ 113 ] Based on the results obtained from the tests undertaken by Dr. Colbourne, I accept the view of Dr. Sargent, that baby B. did not suffer from congenital rickets. [ 114 ] Dr. Barnes accepts the view that glutaric aciduria was eliminated as a cause for the injuries. He agreed there were no specific findings related to hypoxia. Finally, Dr. Barnes stated that trauma was a cause of the fracture and that child birth is one mechanism for causing the trauma.

He did not expand on this or suggest that this was a cause in this case. [ 115 ] I find that the subdural haemorrhage was not caused by a mechanism relating to birth. In light of the comments in the

article “Prevalence and evolution of inter-intra cranial haemorrhage in asymptomatic term infants,” American Journal of Neuroradiology, a subdural haemorrhage after one month of age is unlikely to be birth-related. This is also consistent with the infant’s head circumference being within the normal range earlier in September and increased by early October. Dr. Gardiner [ 116 ] Dr. Gardiner is a pediatric ophthalmologist who has worked at BC Children’s Hospital for approximately 10 years in this specialty.

She has extensive clinical experience in the field, currently seeing approximately 4,000 to 5,000 children each year. She is one of three such specialists in this field in the Province of British Columbia. [ 117 ] Dr. Gardiner examined the infant on a number of occasions relating to the initial diagnosis and ongoing treatment of baby B..

Her opinion is based upon the first two examinations. On the first occasion, the doctor conducted an examination of the infant’s eyes for vision and external abnormality. There was a concern that baby B.’s vision was limited, that the eyes were not perfectly aligned and the left eye was watery. The eyes were then examined with the aid of an ophthalmoloscope which permits a view of the retina. No abnormalities were observed in the right eye.

In the left eye, four haemorrhages were observed in different layers of the retina. [ 118 ] Following the initial examination the second consultation was arranged to permit a more detailed evaluation of the child’s eyes. The examination was conducted while baby B. was under anesthesia and it involved a more detailed examination of the eye and layers of the retina. This examination permitted the rotation of the eyeball and examination of the periphery of the retina. [ 119 ] The right eye was found to be normal. In the left eye, Dr. Gardiner observed numerous haemorrhages.

The doctor’s diagnosis was significant retinal haemorrhaging from the posterior (center part of the back of the eye) pole to the periphery in multiple layers of the retina. Dr. Gardiner classified the retinal haemorrhaging in this case as severe given the number of haemorrhages and their location. The doctor had not seen this type of case where there had been a blow to the head without an acceleration/deceleration type of injury. [ 120 ] Dr.

Gardiner opined that, taking into account the subdural haemorrhages with the pattern of retinal haemorrhages, and aware of the long bone fracture, it made her “suspicious of a severe injury, a considerable acceleration/deceleration injury plus or minus impact”. [ 121 ] Dr. Gardiner acknowledged that there is a debate as to whether retinal haemorrhages could be caused by impact alone or whether this type of injury required an acceleration/deceleration mechanism. She subscribes to the position that there needs to be an acceleration/deceleration component to the injury in this case.

It is also her view that the constellation of injuries is suggestive of a non- accidental type of cause. Dr. Gardner [ 122 ] Dr. Gardner is a retired ophthalmologist. He has, as he indicates, an interest in shaken baby syndrome and has published in the area. He reviewed a number of records relating to baby B. including the mother’s pregnancy records, the child’s birth and outpatient records and 31 RETCAM photographs of the child’s eyes. [ 123 ] Dr. Gardner was not called. His opinion was set out in a letter dated December 3, 2008.

No issue was taken with respect to the admission of the letter opinion and it was not challenged but for the comments of Dr. Gardiner in the course of her testimony. [ 124 ] He also indicated that he had taken some additional history relating to the child B.B.’s fall and had reviewed a video of him running. Neither of the latter two documents was referred to at trial. [ 125 ] Dr. Gardner was provided information upon which he based his opinion. Information provided was that a two year old fell while running with his head striking baby B.’s head. [ 126 ] In short, Dr.

Gardner concludes that the head injury is consistent with the fall by the brother onto the infant. [ 127 ] Dr. Gardner then reviews the 31 RETCAM photographs and concludes that “all the eye findings in this case are consistent with the history as given by the parents and the medical conditions identified in the clinical chart without need of an abusive event”. I assume the doctor is referring to the clinical records relating to the left eye. Dr. Gardner did not appear to be questioning the eye findings (except for the use of the descriptor “fading”). In his report, Dr.

Gardner raises the question as to whether the haemorrhages should be reviewed. He does not contradict the basis on which Dr. Gardiner forms her opinion nor does he take issue with her finding that what she observed was a severe retinal haemorrhage. [ 128 ] Dr. Gardiner has extensive experience in a very specialized area of medicine (pediatric ophthalmology). Dr. Gardner is a retired ophthalmogist but, when practicing, did not have the degree of specialty that Dr. Gardiner holds. [ 129 ] Dr. Gardiner acknowledges that her role is to both treat and protect children.

As well, in her view she is representing the child. This perception explains her comment when she stated that when you have a brain haemorrhage, brain injury and retinal haemorrhaging and long bone fractures you have to think it was a non-accidental injury until proven otherwise. In light of her view, the Court must guard against any unintended bias or shading of her views. [ 130 ] Dr. Gardner does not disagree with the finding of retinal haemorrhages. The issue is the cause of the injury. The shortcomings of Dr. Gardner’s view lie in the fact that he relies on information that is not before the Court.

He makes reference to additional information including the video, without setting it out in his opinion. He makes no reference to the medical pathway to his conclusion and there is no ability to assess the basis on which it occurs. As a result, Dr. Gardner’s opinion is a general statement that in some cases, a short fall could cause a skull fracture and retinal haemorrhages without particularizing how it could be so in this case. Dr. Gardner’s opinion also ventures into the area of speculation with respect to his comments relating to the causes of other injuries, which is clearly outside of his expertise.

It was unusual for an ophthalmologist to provide the opinion that “it is also possible that the brother’s fall would drive the left hip into the relatively hard floor and cause the hip problem”. [ 131 ] In assessing the evidence of this particular aspect of the case I remind myself of the caution that I expressed earlier that the desire to protect children could unintentionally “shade” one’s evidence. I accept Dr. Gardiner’s diagnosis that baby B. suffered from severe retinal haemorrhages.

She agreed with the general proposition that they could have been caused by “traumatic head injury of considerable force” but stated that that was not what happened here. In her view the cause was an acceleration/deceleration type of force or mechanism. [ 132 ] It is not clear whether Dr. Gardiner was aware at the point she formulated her opinion that baby B. had suffered a skull fracture. Dr. Gardiner’s view that the cause included an acceleration/deceleration force was in part formed with an awareness of all the injuries diagnosed and the mechanisms which could cause them.

This consideration of these factors takes Dr. Gardiner beyond the area of expertise for which she was qualified to give expert evidence and impacts upon her final conclusion as to the cause of the injury. Dr. Gardiner’s view is that baby B. suffered severe retinal haemorrhaging extending out to the periphery of the left eye. I do not accept her

view that the injury was caused by shaking or an acceleration/deceleration force. Dr. Colbourne [ 133 ] Dr. Colbourne is a pediatrician with a subspecialty in pediatric emergency medicine . She is a pediatric emergency physician at Children's Hospital and an associate clinical professor in pediatric emergency medicine at the University of British Columbia. In addition, she is a member of the Child Protection Team at Children's Hospital. [ 134 ] Dr. Colbourne's involvement in this matter came as a result of a request for a consult by the neurosurgical team at Children's Hospital. Dr.

Colbourne was consulted in her capacity as the Child Protection doctor on duty at the hospital at the time. [ 135 ] Dr. Colbourne provided an initial opinion based on the examination of baby B.. In correspondence to the social worker dated October 31, 2007, she described the injuries suffered by baby B. to be: a. Intracranial injury; b. Retinal haemorrhages; c. Parietal left femoral metaphyseal fracture. [ 136 ] The doctor was of the view that the cause of the injuries was related to a shaking incident.

While the fracture was clearly visible on the x-ray images and available for her review, there was no reference to it. Dr. Colbourne expressed the opinion that the only explanation for this combination of injuries would be a severe shaking type injury. [ 137 ] At trial, Dr. Colbourne modified her opinion. She noted that the child had a skull fracture in addition to the other injuries noted earlier. She testified there were different causes for the injuries.

A combination of blunt force trauma to the head and indirect forces in a shaking kind of manner caused the bleeding into the brain and the bleeding in the eyes. In addition, probably an indirect force of traction to the leg caused the break at the proximal femur, likely yanking or pulling. [ 138 ] Dr. Colbourne explained that, while aware of the fracture, she forgot to make reference to it in the first report. If this is the case, I do not understand Dr. Colbourne’s comment in her first report where she stated, “the only explanation for this possible combination of injuries is shaking”.

At trial however, the Doctor agrees the cause of the skull fracture would have been a blunt force and that same force could contribute to other injuries. The doctor agrees with the proposition that a toddler falling on a infant child could possibly cause a skull fracture but would not likely cause the degree of subdural haemorrhage observed and would not cause the retinal haemorrhages. [ 139 ] With regard to the metaphyseal fracture, at trial she stated that the injury is caused by a yanking or pulling mechanism. In her earlier view she indicated that all injuries were as a result of the shaking mechanism.

In addition she noted that this was the first time she had seen this kind of injury at the proximal femur. [ 140 ] With respect to the timing of the injuries, Dr. Colbourne opined that they likely occurred some time toward the end of September, when the infant became symptomatic. Based on the infant's first presentation with the symptoms on September 26 at the Canyon hospital, the low hemoglobin count on September 27 th and the blood noted in the subarachnoid space and the femoral fracture on October 6 th , she believed the injuries probably occurred some time around the end of September.

In her view, she felt they may have happened on a number of days over a 10-day timeline. [ 141 ] Dr. Colbourne indicated that there can be other non-abusive causes of subdural haemorrhages which are connected to congenital problems and disease, all of which were eliminated. I accept Dr. Colbourne’s opinion that the skull fracture and the left proximal femur fracture were associated with trauma of some significance. I do not accept that the injuries were caused by shaking or an acceleration/deceleration mechanism.

It is certainly possible that they could have been, but I am unable to conclude that this was the probable cause of the injuries. Dr. Alexander [ 142 ] Dr. Alexander is a doctor licensed in the state of Florida and has been a pediatrician since 1984. He is presently a professor at the University of Florida in Jacksonville in the Department of Pediatrics. He is involved in patient care and is the medical director in charge of 24 child protection medical teams for the Children’s Medical Services in the Department of Health in the state of Florida.

He has previously been qualified as an expert in child abuse with an emphasis on pediatrics in the United States. [ 143 ] Dr. Alexander’s opinion was expressed in a letter dated January 9, 2010. The opinion was formulated prior to an examination of the x-rays or other films obtained at Children’s Hospital when the child was first admitted. [ 144 ] In the report, Dr. Alexander was of the opinion that baby B. was the victim of multiple life-threatening physical abuses. The doctor relies on clinical records provided by Children’s Hospital, particularly the consultative report of Dr. Colbourne, and a letter from Dr.

Gardiner, and he concludes that the injuries were as follows: a. Findings are indicative of abusive head trauma; b. Retinal haemorrhages suggests later shaking; c. Femoral fracture would be a more recent injury; and d. Skull fracture would be a newer impact injury of the skull than the subdural haemorrhaging.

[ 145 ] At trial, he modified his opinion, stating that the head trauma consists of a parietal fracture and subdural haemorrhaging. This event occurs earlier in time. The retinal haemorrhaging occurs after this, and the femoral fracture is the most recent injury. He states that all are life-threatening injuries. In cross-examination, his opinion is further modified, stating that there are two or three acts of abuse over two or three occasions. [ 146 ] The mechanism that would result in this type of right parietal bone fracture was a blunt force impact. He indicated the force would have to be “pretty severe”.

In his clinical experience the type of force necessary to cause this type of injury in an infant includes: a. Car crash; b. Large or very large falls, described as falls from multi-story heights; or c. Child abuse. [ 147 ] Dr. Alexander indicated that he would see approximately 50 cases of this type of injury annually. [ 148 ] Dr. Alexander, relying on Dr. Gardiner’s assessment of the retinal haemorrhages, is of the view that intracranial pressure or blunt force trauma would not produce the number or the extent of the retinal haemorrhages out to the periphery. Dr.

Alexander’s “first thought” would be a shaking mechanism or severe bleeding disorder. [ 149 ] The metaphyseal fracture, in his view, was caused by pulling or twisting forces. [ 150 ] The bilateral subdural haemorrhaging can be caused by shaking or impact injuries. In his view, the skull fracture is associated with the subdural haemorrhages. [ 151 ] Dr. Alexander is a leading proponent of the “shaken-baby” theory in the United States. He is on the Advisory Committee to the National Centre for Shaken Baby and has spoken extensively in this particular area over the past decade.

He spoke with great conviction with respect to this particular the view. While he acknowledged that there was considerable debate with respect to the mechanism of shaking of young infants and its’ diagnosis, the debate was a legal one not a medical one. The evidence at this trial would suggest a contrary position. [ 152 ] Dr. Alexander provided little, if any, explanation as to how he formulated his views that the injuries led to the conclusion that they were due to abuse. He termed all the injuries as life-threatening events but provided no explanation as to how or why this was the case. [ 153 ] Dr.

Alexander’s evidence as to when the injuries were sustained is at odds with the evidence of Dr. Sargent. [ 154 ] Dr. Alexander was unwilling to examine alternative hypotheses for the cause of the injury or injuries. He was somewhat dismissive of the other experts called to express an opinion, on the basis that they were not experts in the area of child abuse. [ 155 ] His initial views were based on the review of a limited number of the clinical records, primarily the consultation report of Dr. Colbourne and a letter of Dr. Gardiner, as well as some records obtained from the Children’s Hospital.

He had no opportunity to review any of the images or the balance of the clinical records from the various hospitals and health care providers that the child attended prior to her admission to Children’s Hospital. [ 156 ] For the foregoing reasons, I place little weight on the opinions expressed by Dr. Alexander in this case Dr. Plunkett [ 157 ] Dr. Plunkett is a forensic pathologist. Forensic pathology is the specialty of pathology concerned with injury mechanisms or injury mechanics and contribution of injury to organ dysfunction and death.

He was the Minnesota Regional Coroner for approximately 24 years prior to retirement in 2005. In the late 1990s, he developed an interest in the area of what is referred to as Shaken Baby Syndrome and the cause of such injury.

He came to the view that by the late 1990s or 2000: …almost everything taught in medical school and in formal post-graduate medicine or medical education and published in the medical literature regarding infant injury was wrong. [ 158 ] The doctor is of the general view that there is no evidence that traumatic brain injury which he defines as subdural bleeding, retinal haemorrhage or brain swelling, can be caused by shaking an infant. [ 159 ] In this case, Dr. Plunkett states that baby B. had an event that is consistent with her brother striking her head with his.

The event he is referring to is the subdural haemorrhage. This is based on his earlier work and observations that a short fall can, on occasion, cause significant injury. He acknowledges however that it is unusual for a three week old baby to develop subdural bleeding as a result of such an impact. [ 160 ] He concludes this based on the information that he was provided which include the following: a. The child B.B. is running at 9 feet per second and then falling; b. He had been running across the floor; c. He struck baby B.’s head with an impact. [ 161 ] Dr.

Plunkett further opines that the retinal haemorrhaging is caused by an increase in the intracranial pressure which causes the veins to collapse and blood in the capillaries to back up, thereby causing the haemorrhages.

[162] Dr. Plunkett states that short falls may cause an unexpected serious head trauma, but he acknowledges that such occurrences arerare. [163] In this case, the factual assumptions on which the doctor formulates his opinion have not been established. There was noevidence that the child was running at 9 feet per second, nor was there evidence that baby B.’s head was struck with an impact. In regardto the opinion that the intracranial pressure caused the retinal haemorrhages, Dr.

Gardiner’s evidence, based on her examinations of theeye, found no evidence that lead her to conclude there was an increase in intracranial pressure, or occlusion of the retinal veins by clottedblood or structural occlusion. She detailed the findings which lead to her conclusion. [164] Given the lack of evidentiary foundation for Dr. Plunkett’s opinion in relation to the impact and the force of the impact, and lackof ophthalmological findings, I am unable to accept his opinion. The opinion of Dr. Butt and Dr.

Monson are also based on the samefactual foundation; that the child B.B. was running, stumbled and his head struck the head of baby B. Dr. Galaznik also basis hisopinion on a crush injury. I am unable to accept their opinions based on the lack of an evidentiary foundation. [165] With respect to the remaining opinions filed by way of medical-legal reports, I make the following comments. Dr. Stephens, aforensic pathologist, identified in his report a vitamin D deficiency of the mother a number of months after the event. Dr.

Gardinerindicated a vitamin D level of only 49 which she describes as being in the low/normal range. Again this is a reference to the mother’svitamin D level and there was no indication as to when the result was obtained. Dr. Innes, a pathologist, makes reference to a vitamin C,D and K deficiency and the affect that this may have. There is no evidence of such deficiencies in this case. Are the Children in Need of Protection – the Test [166] A case dealing with unexplained injuries is British Columbia (Superintendent of Family and Child Services) v. G(C) [1989]B.C.J. No. 1577 (B.C.C.A.).

The case involved an appeal from a decision at a Protection hearing in which evidence was presented thattwo twin babies, age 7 months at the time of the hearing, and a five and a half year old half sister were found not to be in need ofprotection. The twins had suffered a number of injuries when they were 4 to 6 weeks old, including a cranial fracture and 14 fracturedribs in one, and 6 broken ribs in the other. The parents were unable to explain the cause of the twins’ fractured ribs, althoughexplanations were advanced at the hearing. The father offered an explanation for the cranial fracture.

The doctor who testified was ofthe view that the injury was not accidental and the infant was not able to injure himself in this way. [167] The Court held: In approaching the resolution of this matter in that way the hearing judge misdirected himself. To begin with he was not conducting atrial which might lead to a finding of guilt of one or other of the parents with respect to the injuries suffered by the twins. Yet heconsidered that that was the issue before him and having heard the parents testify he was reluctant to find that either of them had abusedthe twins and caused the injuries which they had suffered.

But that was not the nature of the inquiry to be conducted on the hearing,rather the hearing judge was to consider the evidence led on the hearing and decide on the basis of that evidence whether having regardto the safety and well being of these children they should remain in the custody of their parents or whether they should be temporarilyplaced in the custody of the Superintendent. When the facts disclosed by the evidence are considered, namely that each of the children suffered extensive rib fractures, that in theopinion of Dr.

Hlady those injuries were not accidental and the parents who had had the custody and care of these children gave nosatisfactory explanation as to how those injuries had been sustained, the only conclusion open to the hearing judge on that evidence wasthat the safety and well being of the children required that they be placed in the custody temporarily of the Superintendent. [168] The case of C.G., supra, stands for the proposition that the role of the trial judge is not to assign blame or make a finding of whothe abuser was.

The focus is on assessing whether the children should remain in the custody of their parents, having regard to theirsafety and well being. [169] As was noted in B.S. v. British Columbia (Director of Child, Family and Community Services) (1998), 48 B.C.L.R. (3d) 106(C.A.), s. 13 of the Act sets out when a child will be considered in need of protection.

Section 13 is non-exhaustive and the provisions ofs. 2 of the Act may be invoked to ensure protection of the child when the precise requirements of s. 13(1) cannot be met with sufficientcertainty. [170] In D.M.G. v. British Columbia (Director of Family and Child Services) 2007 BCSC 461 , [2007] B.C.J.

No. 682,Russell J. at paragraph 97 states: Thus, a child is in need of protection if the need of protection from abuse, neglect, harm or threat of harm is proven to the requisitestandard, even if it cannot be proven who perpetuated the harm with sufficient certainty to meet the precise requirements of one of theparagraphs of subsection 13(1). [171] A helpful discussion of the requisite standard of proof to be met by the Director is provided in the B.S. decision at paragraph 27– 31: When the assertion being made is about a past event then the actual occurrence of that event must be shown by the weight of theevidence to have been more probable than not.

That is the case with past abuse, neglect, or harm to a child. But where the assertion being made is that there is a risk that an event will occur in the future, then it is the risk of the future event andnot the future event itself that must be shown by the weight of the evidence to be more probable than not. That is the case withconsideration of a threat of future harm. The result is that in considering past abuse the degree of certainty that it has occurred will be more than is required in consideringwhether abuse will occur in the future.

A ten percent risk of future abuse may meet the test of the risk being shown to exist on thebalance of probabilities, whereas a ten percent assignment of the probability that the abuse had occurred in the past would not meet the

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

I have received a good deal of stimulation on this subject from the decision of the House of Lords in In Re H. and Others, [1996] A.C.563 ...

However, I wish to say that I would adopt the views expressed by all five law lords that the word "likely" has a primary meaningof "more probable than not", but a recognized secondary meaning of "a real possibility", and that the secondary meaning captures theintent of Parliament in the use of the word "likely" in relation to the possibility of a child suffering harm in the future. [Emphasis added.] [172] The test for the Director to meet therefore is that there is a real possibility that the child may suffer harm. Further, as JusticeProudfoot of the B.C. Court of Appeal stated in Supt.

Of Fam. and Child Service v. M.(B) (BC SC), 28 RFL (2d) 278 at287: While I say that the test to be applied is, on the balance of probabilities, as to what is in the best interests of the child, no such test existswhen we deal with the element of the risk of injury. I am satisfied that a much lower test would be applicable when we are dealing withthat aspect. Analysis The Evidence of Mrs. B. [173] Mrs. B. is clearly an intelligent and articulate person. I find her to be industrious in light of what she has done in order to arrangeher affairs to maintain the access

schedule with the children, work in an effort to establish a new residence closer to where the childrenare currently residing and to organize matters related to the litigation. [174] Her evidence focused on three main areas: first, the circumstances leading up to the birth of baby B.; second, the events duringthe first 2 and 1/2 months following the child’s birth; and third, what has occurred since the children were removed. [175] A critical portion of the evidence focuses on the events surrounding September 23, 2007. However, her evidence, in general,was problematic in some respects.

She would minimize events if it showed her in a better light. For example, she minimized the supportprovided in Hope by Mr. and Mrs. Hoffman. A second example was her explanation as to why her husband resigned from the churchboard. She claimed it was as a result of a philosophical difference which was expressed in his letter of resignation. This assertion wascontradicted by a review of the letter. [176] On other occasions she would have a tendency to overstate matters.

Asked at one point whether the return of the three childrenwhile pregnant with her fourth child would be a stressful situation, her response was “absolutely not”. The response ignores the presentcircumstance with two children having varying degrees of special needs, her past difficulties during pregnancy and premature births, andthe pending arrival of a newborn. This circumstance could not be anything but stressful. [177] She recognized the importance of the need for having relevant documents readily available at trial.

She had organized asignificant number of documents and was well acquainted with them to aid in cross examination of the Director’s witnesses. However,during her cross-examination she made reference several times to relevant information that would be in her personal notes, but whenpressed, admitted she had not brought parts of the notes to the trial.

These references were to the lack of breast milk consumed following September 23rd and the vitamin D supplements, two relevant areas of evidence in the context of this case. [178] Specifically with respect to the account of what happened on September 23, 2007, there are a number of concerns. At trial inexamination in chief, the mother testified that she observed the child B.B. run around the corner, stumble and fall on to baby B.. [179] She stated: “I saw his head on top of hers. I cannot say where his head actually struck, which point. She was lying on her stomach.

Her legs weretucked underneath her slightly and her head was to the side. She was lying on the right side. The left side was up.” [180] I note the parietal skull fracture was on the right side not the left side of the skull. [181] There were inconsistencies between this account and descriptions given at the Presentation hearing and on other occasions priorto the trial. [182] At trial she testified that the father was watching baby B. and was preparing dinner in the kitchen. She described him as goingback and forth. She stated “he would not have left her alone”.

At the Presentation hearing she said he was preparing dinner. [183] Not only are the two accounts somewhat different, Mrs. B. would have no knowledge of whether the father was “back and forth”as she described because she was not present. [184] At trial, she testified the child B.B. came around the corner. She states that she does not remember when she first sees him,stating, “I don’t remember clearly”. At the Presentation hearing she said she saw her son one foot away from the infant.

[ 185 ] At trial in her evidence in chief, the mother stated the child B.B. was running. In cross examination she said he walked fast, a stumbling run [ 186 ] Given the location of the infant on the floor in the living room and the child B.B. coming around the corner, Mrs. B. would not have any meaningful opportunity to observe how quickly the child was proceeding. [ 187 ] The mother testified the child B.B. stumbled and fell.

She did not recall how the child B.B. landed and she did not see contact because it happened so fast. [ 188 ] As to the location of the two children after the fall, in her evidence in chief she said she “saw his head on top of hers”. At the Presentation hearing she testified at one point that the heads were “inline” with each other and, at another point she said the heads were beside each other. [ 189 ] At Children’s Hospital, she advised Dr. Colbourne that the child B.B. had fallen on baby B.. In a subsequent statement sent to Dr.

Colbourne, she explained “our son fell on her from a run with his head making forceful contact as she lay on her tummy resting”. [ 190 ] When pressed at trial as to the position of the two heads after the fall she stated “it would’ve been on top”. [ 191 ] In the clinical records of the MSA Hospital during a consult with Dr. Anquist on October 6, 2007, there is the following reference: “two and a half weeks ago, the older brother stumbled over her but she did not seem to be hurt”. Mrs.

B. acknowledged speaking to the doctor and providing the information to him. [ 192 ] She testified that she first described the incident on September 26 th and then on the 27 th to Dr. Sorial. She acknowledges there is no note in Dr. Sorial’s report. [ 193 ] In

summary , there are a number of inconsistencies in the account of what happened and when it happened. [ 194 ] Mrs. B.’s testimony on the pivotal point of the incident of contact between the two children is inconsistent. She provides a different account at trial than on earlier occasions and the description of the location of the two children following the fall becomes more descriptive over time, not less so. Her opportunity to observe was limited. [ 195 ] There were no injuries observed on either baby B. or her older brother as a result of the September 23, 2007 incident. [ 196 ] Mrs.

B.’s testified the child was placed in the same location in the living room three days later, after breast feeding. Baby B. was then left on her own as Mrs. B. returned to another room, to express breast milk. This would appear somewhat unusual if an event of any significance occurred on that date. At trial it was suggested that doing so would be risky. Mrs. B. stated that “if it had occurred to me, again, I wouldn’t have put her there”. The response reflects the fact that this was not a significant event. [ 197 ] This response should also be compared in the context of Mrs.

B.’s response of the September 23, 2007 incident – “it did not seem like a non event when I was watching it”. It is difficult to reconcile this response to Mrs. B.’s actions on September 26, 2007. [ 198 ] In my view, Mrs. B.’s explanation at trial is a reconstruction of events in an effort to explain a traumatic event which happened to her daughter. Such an approach is not uncommon in an effort to put the “best” explanation forward. I am unable place to any weight on the explanation of what the witness describes as having taken place on September 23, 2007.

Any contact between the children on this occasion, was of such a trivial nature as to be of no consequence at all. The Failure of the Father to Testify [ 199 ] The father was present throughout the proceeding but did not testify. In submissions, counsel indicated that the mother’s testimony had gone too long and he was closing the parents’ case following the testimony of the mother. Originally the trial plan had called for the father to testify. [ 200 ] Since birth, the infant was in the care of the mother, the father or both parents.

The mother testified as to what occurred when she had the child in her care as well as to her observations as to what the father did and the assistance he rendered in caring for the children. However, there were times when the father was with and cared for baby B. on his own. [ 201 ] There are two known instances where the father was alone with or in the vicinity of baby B. The first was on September 23, 2007, when he was watching over the evening meal and baby B., who was in the living room. The second was on September 26, 2007, when baby B. (according to Mrs. B.) vomited and stopped breathing.

On this occasion the mother left the child 15 minutes earlier and gone to the bedroom to express breast milk. She returned to observe the father holding the infant with his fingers in the infant’s mouth apparently checking her mouth for any obstructions. [ 202 ] In regard to the first incident, what did the father see leading up to or immediately following the fall?

What effects were observed to either child? [ 203 ] In regard to the second incident, why and what led up to the father picking up baby B.? [ 204 ] Failure to call a party in a civil proceeding was considered in The Law of Evidence in Canada , Second Edition (John Sopinka, Sidney N. Lederman and Alan W. Bryant, Butterworths: Markham Ontario, 1999) .

The ability to draw an adverse inference from the failure of a party to testify is addressed at page 297: §6.321 In civil cases, an unfavorable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a

material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admissionthat the evidence of the absent witness wo

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