Director v. E.C. and S.A. Date:, 2016 BCPC 111

Citation: Director v. E.C. and S.A. Date: 20160502 2016 BCPC 0111 File No: F11674 Registry: Duncan 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: [omitted for publication], born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: E.C. and S.A. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Director: T.J. Senko Counsel for E.C.: Robert Ramsay

Counsel for S.A. : C. Churcher Place of Hearing: Duncan , B.C. Dates of Hearing: March 24, April 29, 2016 Date of Judgment: May 2, 2016 The Issue [ 1 ] Ms. C and Mr. A are the parents of four children, ages 12, 10, 8 and 7. All are members of the [omitted for publication] First Nation. Child protection services are provided to the [omitted for publication] First Nation by [omitted for publication] Child & Family Services (“the Agency”), exercising delegated authority under

section 92 of the Child, Family & Community Service Act RSBC 1996, c 46 (“the CFCSA ”). The Agency applies for a supervision order under

section 29.1 of the CFCSA . In particular, the Agency applies for an order that Mr. A not reside in or visit the family home, and that Mr. A’s parenting time be supervised by a person approved by the Agency. [ 2 ] I presided at a presentation hearing, under sections 33.1 - 35 of the CFCSA , on March 24 and April 29, 2016. At the conclusion of the presentation hearing, I am required by section 35(2) of the CFCSA to make one of four interim orders: (

i) that the children be placed in the custody of the Agency; (ii) that the children be placed in the custody of someone else under the supervision of the Agency; (iii) that the children remain in the custody of Ms. C without supervision by the Agency; or (iv) that the children remain in the custody of Ms. C under the supervision of the Agency. The Agency seeks the latter order. [ 3 ]

Section 33.2(2) of the CFCSA provides: If satisfied that there are reasonable grounds to support the director's concerns regarding the child, the court must make at the conclusion of the presentation hearing an interim order that the director supervise the child's care. In light of the authorities mentioned below, that provision must be construed to mean “if satisfied upon the evidence that there are reasonable grounds”.

Legal Principles [ 4 ] I am guided by the following statements of legal principle (underlining added): Informally, some judges have compared the Director's onus of proof on a presentation hearing to the Crown's burden on a bail hearing on a criminal matter. Others have referred to the standard for committal at a preliminary inquiry, which is the same test for a trial judge withdrawing a case from a jury. A justice at a preliminary inquiry is required to commit an accused for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

Is there any evidence upon which a reasonable jury properly instructed could convict? … I think this test comes closest to the Director's onus to provide evidence in support of his application … In my view, I am required to grant an order for interim custody to the Director where there is admissible evidence at the presentation hearing which, if believed by the protection hearing judge could lead to a finding that J.M.T. is in need of protection. Put another way, is there any evidence upon which the protection hearing judge could conclude that J.M.T. is in need of protection?

If there is an absence of evidence at the presentation hearing which could support a protection finding, only then is the presentation hearing judge entitled to return the child to the parent unsupervised. T (K.M.) v. T (J.D.) [1999] BCJ No 822 (paragraphs 14 – 19 ) A presentation hearing is a

summary process; it is not designed to allow all parties to give evidence or to facilitate evidentiary findings based on credibility. It must be emphasized that this is only an interim order with respect to the care of the child pending a comprehensive hearing to assess whether the child is in need of protection. Re B(S) [1998] BCJ No 2553 (paragraph 17 ) [T]he Court must consider those grounds set out in

section 13 of the Act upon which the Ministry relies to justify the removal. However, in my respectful view, this does not mean that the judge before whom the presentation hearing is held is limited to a consideration of only evidence that relates to those grounds and may not consider other, relevant evidence. In my view, since the paramount concern is the protection of the child, then, if the evidence adduced at the hearing discloses other grounds sufficient to justify a removal, a judge must take that evidence into consideration.

Re M [1998] BCJ No 2204 (paragraph 19 ) In applying those principles, it is important to consider section 68(2) of the CFCSA : In a proceeding under this Act, the court may admit as evidence

(

a) any hearsay evidence that the court considers reliable, or (

b) any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding. The Evidence [ 5 ] On November 30, 2015, the RCMP telephoned the Agency to express their concern that Mr. A was living in the family home and that there was a risk of family violence. Ms. F, a social worker employed by the Agency, was assigned to the case. Ms. F met separately with Ms. C and Mr. A. She informed Ms. C that, in Ms. F’s view, adequate grounds existed for the Agency to remove the children from the home unless Ms.

C agreed to a safety plan, including terms requiring that Mr. A remove himself from the family home and that Mr. A’s parenting time be supervised by a person approved by the Agency. Faced with the prospect that her children would be removed from her care, Ms. C agreed, and signed the safety plan. Mr. A moved out of the family home on December 4, 2015. He has seen the children, under the supervision of a person appointed by the Agency, on seven occasions since December 4, 2015. Those visits have been relatively brief. [ 6 ] The Agency’s application is founded upon allegations that Mr.

A committed acts of family violence on three separate occasions. It is alleged that he assaulted Ms. C in 2010 and that he caused property damage in the family home in May, 2015 and in June, 2015. The Agency submits that those three incidents, when considered in the context of Mr. A’s criminal history (discussed below) are sufficient to support a conclusion that the children are in need of protection from Mr. A. [ 7 ] During her evidence at the presentation hearing, Ms. C acknowledged that, in June, 2015, she told the police that Mr. A had assaulted her in 2010, but said that the report was false.

She denies that Mr. A assaulted her. [ 8 ] There were tendered in evidence at this presentation hearing two letters provided by the Officer in Charge at the North Cowichan RCMP detachment. Those letters set out: (

i) summaries of police encounter reports in relation to Mr. A and Ms. C; and (ii) a

summary of Mr. A’s criminal record. It is apparent that the Officer in Charge prepared the letters by consulting RCMP files, and that those files would be admissible as business records under

section 33 of the Evidence Act RSBC 1996, c 24 . However: (

i) no attempt was made at the presentation hearing to prove the conditions precedent to admissibility set out in

section 33; and (ii) the source documents were not tendered in evidence. If objection had been taken on either of those grounds, I would have been obliged to consider whether the letters should be received under the authority of section 68(2) of the CFCSA . Ms. Churcher relieved me of that difficulty by tendering the admission, for the purpose of the presentation hearing only, that the facts stated in the letters are correct. [ 9 ] The RCMP letters contain the following entry in relation to the allegation that Mr.

A caused damage to property in June, 2015: At 20:25 hours on 2015-06-30, [omitted for publication] Detachment received a report from [Ms. C] that her ex-husband, [Mr. A], had broken into her residence and damaged some furniture and that [he] had assaulted her in the past. This file is presently under investigation. That entry is the only reference in the police letters to an allegation that Mr. A assaulted Ms. C (at any time). A victim’s statement to the police is not evidence upon which an accused person could be committed for trial, unless the victim adopts or repeats the statement at a preliminary enquiry.

For that reason, there is no admissible evidence at this presentation hearing to support the allegation that Mr. A assaulted Ms. C. [ 10 ] The RCMP letters contain the following entry in relation to the allegation that Mr. A caused damage to property in May, 2015: At 09:08 hours on 2015-05-20, [omitted for publication] Detachment received a report from [Ms. C] that she had been away for the week and when she returned she found her house had been trashed. Several items in her kitchen had been damaged. An officer spoke to [Ms. C]. [Ms. C] felt that because nothing had been taken that her husband, [Mr.

A], was probably one of the persons that had caused the damage. [Ms. C] reported speaking to [Mr. A] who denied the allegations. [Ms. C] wished the incident reported for information purposes only. The officer did not speak to [Mr. A]. The police file was concluded. [ 11 ] In her evidence at this presentation hearing, Ms. C said that she was not at home on either of the two occasions upon which property damage occurred (in May and June, 2015). Accordingly, she says, she does not know who caused the damage. There is no admissible evidence at this presentation hearing that it was Mr. A. [ 12 ] Mr.

A acknowledges that he and Ms. C separated in April, 2015, and that he returned to the family home in June to retrieve some personal belongings. He admits that one of those was a television set which he dropped, accidentally, and damaged while trying to remove it, but denies causing any other property damage.

There is no admissible evidence to contradict him. [ 13 ] For the reasons given in paragraphs 8 - 11, the order sought by the Agency cannot be justified on the grounds advanced by the Agency. [ 14 ] The judgment in Re M , quoted in paragraph 3, requires me to consider whether the order can be justified on other grounds. [ 15 ] The RCMP letters disclose that, in the period 1993 - 2006, Mr.

A had three convictions for assault, two for theft, two for breach of probation orders, one for assault causing bodily harm, one for mischief, one for possession of a weapon, one for resisting a police officer and one for impaired driving. The RCMP letters provide no particulars of those offences. Mr. A appears to have no convictions in the past 10 years. [ 16 ] The RCMP letters contain many references to police encounters with Mr. A, beginning in 2004, which did not lead to criminal charges. Most of those encounters resulted from complaints that Mr. A had committed acts of violence while intoxicated.

In the interest of brevity, I will quote only those which are relevant to the application before the court, and, of those, only those which occurred after January 1, 2013. Those are:

On 2013-01-06, [omitted for publication] Detachment received a report of a disturbance from a female which occurred last night at a residence on [omitted for publication] Street. The female advised [Mr. A] had kicked her in the foot because she was no longer dating his brother. The female advised [Mr. A] was quite intoxicated. Several other males immediately escorted [Mr. A] out of the residence. The female stated she did not wish to pursue charges. The file was concluded. On 2013-06-27 at 19:43 hours, [omitted for publication] Detachment received a report of an assault on [omitted for publication] Road.

Officers attended and found an intoxicated male with his left eye swollen shut and his lips bleeding. The male advised he didn’t know what happened and then later stated [Mr. A] had assaulted him. Patrols were made and [Mr. A] was located a short distance away with blood on his shirt and shorts. [Mr. A] was intoxicated and denied assaulting the male. [Mr. A] was arrested and escorted to cells. The next day the male advised he did not want to pursue charges. The file was concluded. On 2013-07-07 at 16:32 hours, [omitted for publication] Detachment received a report of an assault from a female.

The female advised she got into an argument with [Mr. A]. There was a brief struggle and the female received a scratch and her shirt was torn. The female did not want to pursue charges and requested counselling through the [omitted for publication] [First Nation]. [Mr. A] was contacted and agreed to attend counselling. The file was concluded. On 2013-09-06 at 16:50 hours, [omitted for publication] Detachment received a request for assistance from a Ministry of Children & Families worker. The worker advised she had attended a residence on [omitted for publication] Road, when an intoxicated [Mr. A] confronted her.

The worker advised she felt intimidated by [Mr. A]. Officers attended and [Mr. A] returned to his own home. The worker was able to complete her visit with the intended family. The file was concluded. At 12:55 hours on 2014-04-11, [omitted for publication] Detachment received a report from a female caller reporting [Mr. A] was intoxicated and refusing to leave. Officers attended the residence and determined [Mr. A] had already left. The police file was concluded. At 19:45 hours on 2014-06-25, an officer from [omitted for publication] Detachment came across [Mr. A] passed out on the ground. [Mr.

A] was intoxicated and was arrested for Cause Disturbance and held in cells. When sober, [Mr. A] was released without charges. At 23:00 hours on 2014-10-03, [omitted for publication] Detachment received a report of a disturbance. A female reported being threatened by an intoxicated [Mr.A]. Officers attended and spoke to the female caller who reported running across [Mr. A]. An argument ensued in which she and [Mr. A] exchanged “vulgar” words. [Mr. A] was sent home. No further issues arose. The police file was concluded.

At 13:07 hours on 2014-11-26, [omitted for publication] Detachment received a report of a disturbance. An officer attended and was directed to a local business. The officer observed a male passed out on a stool. [Mr. A] was disoriented, his speech was slurred, eyes were glossy and he smelled heavily of liquor. The officer arrested [Mr. A] for Cause Disturbance. [Mr. A] became belligerent. [Mr. A] was held in cells until sober, then released without charges. The police file was concluded. At 10:58 hours on 2015-03-18, [omitted for publication] Detachment received a report of an assault.

An officer spoke to a male who alleged he had been assaulted a week prior by [Mr. A]. The male reported that after drinking with [Mr. A], A kicked him in the ribs and the leg which resulted in the male sustaining a cracked rib. The officer spoke to [Mr. A] who adamantly denied the alleged assault. The officer attempted to contact the male for further details, and after numerous attempts, the officer concluded the police file. [ 17 ] It will be observed that the most recent of those encounters occurred about 13 months ago. Mr.

A says that he no longer behaves in the way described in the police letters, and that alcohol is no longer a problem for him. In the course of the past year, he has taken on a responsible role in the spiritual, religious and cultural life of his First Nation. As a result, he says, he is a changed man. That may be so. I hope that it is. However, relapse is, sadly, common among those who have abused alcohol as Mr. A has done. Analysis [ 18 ] As the judge presiding at a presentation hearing, it is not my function to decide whether the children of Mr. A and Ms. C are in need of protection.

I am only to decide whether there is evidence upon which the judge presiding at a protection hearing could conclude that they are. If the evidence at the presentation hearing is capable of supporting that conclusion, I must not allow the children to remain in Ms. C’s care without a supervision order: T(K.M.) v. T(J.D.) at paragraph 19. [ 19 ] It is apparent that, at least until March, 2015, Mr. A was frequently intoxicated, and that he has a propensity for violence when intoxicated.

It is likely that he returned to the family home in an intoxicated condition on those occasions on which the police released him without charges. It would not be unreasonable to conclude that his children were at risk, and in need of protection, on those occasions. [ 20 ] The question whether Mr. A has so changed his lifestyle as to obviate the risk made manifest by his past behaviour is one for the judge at the protection hearing.

As was pointed out in Re B(S) , it is not the function of a judge at a presentation hearing to assess credibility or weigh evidence. [ 21 ] In the result, I am obliged by the statute to make an order that, if the children are to remain in the care of Ms. C, they must do so under the supervision of the Agency. [ 22 ] The central question on this application is the terms of the supervision order. The Agency seeks an order that Mr. A be forbidden to attend at the family home and that his visits with the children be supervised by a person approved by the Agency. Mr. A and Ms.

C ask that I impose terms which would allow him to live in the family home and to have unsupervised parenting time with the children. In support of that request, they offered in evidence letters from each of the children, expressing their distress at their separation from Mr. A, and asking that he be allowed to return to the family home. I am concerned about those letters in three different ways: a. Whenever the children are old enough to express themselves, I think it important that children’s voices be heard in relation to issues

of parenting time. However, care must be taken to ensure that the children are given an opportunity to speak in a way which does notexpose them to further trauma and offers some assurance that what they say reflects their views, rather than those of others. Letters to thecourt, prepared at the request and under the supervision of a parent, are unsatisfactory for either purpose. A child asked by a parent towrite such a letter will inevitably feel pressured to please that parent. For a child whose world has already been disrupted, that pressurecan be very traumatic.

There is no way for a judge to assess whether the letter accurately reflects the child’s true feelings. In cases ofthis kind, the appropriate course would be to arrange an interview of the child, either by the judge or by someone appointed by the courtfor the purpose. b. It is likely that Mr. A is an important attachment figure for the children. He has seen the children seven times in the five monthssince he left the family home. Regardless of his virtues or deficiencies as a parent, that separation is likely to have been traumatic forthem.

If steps can be taken to facilitate visits in such a way as to ensure the safety of the children, that should be done. c. The process of attachment by young children is instinctive, not rational. Children do not choose attachment figures. Rather, theattachment arises from the circumstances. For that reason, children are quite capable of attaching strongly to people with whom they arenot safe. The existence of strong attachments is not a reason to ignore safety concerns. The objective must be to minimize the emotional harm resulting from the children’s separation from Mr.

A in a manner which keeps thechildren safe. [23] Four aspects of the evidence encourage me to think that the risk to the children can be adequately managed without excludingMr. A from the family home: a. all of the reports of violent behaviour on the part of Mr. A are associated with alcohol consumption; b. although Mr. A has a long history of violent and drunken behaviour outside the home, there is no evidence that he has everharmed any of the children; c. Ms. Churcher, on behalf of Mr. A, consents to an order that Mr. A submit to random urine tests for drugs and alcohol; d. Ms. Churcher, on behalf of Mr.

A, consents to a common-law peace bond to enforce the terms of the supervision order. I had some initial doubts about a common law peace bond, because I am reluctant to criminalize addictive behaviour. However, I thinkit a necessary feature of this case because it will provide the police with immediate and unchallengeable grounds to arrest Mr. A if heviolates the terms of the bond, and so will enable them to remove him from the home immediately if he poses a danger to the children:R. v. Mussoni (ON SC), [2009] OJ No. 1161; 243 CCC (3d) 17 at paragraphs 20 – 29; R. v.

Palosaari [2012] BCJNo. 723; 2009 BCPC 99. [24] I think that the following supervision terms will strike an appropriate balance between securing the children’s safety andallowing them parenting time with Mr. A, which may be important to their emotional health: a. Mr. A and Ms. C will allow representatives of the Agency to enter and search their home, on demand and without delay, at anytime of the day or night. b. Mr. A and Ms. C will allow representatives of the Agency to interview the children in private on demand. c. Mr. A and Ms.

C will attend, participate in and successfully complete any counselling programs to which either or both of themare referred by the Agency. d. Neither Mr. A nor Ms. C will possess or consume any alcohol or any controlled substance, as defined by the Controlled Drugs& Substances Act, except in accordance with the terms of a valid medical prescription. e. Mr. A will telephone a representative nominated by the Agency every day at a time designated by that representative. If sorequested by that representative, Mr.

A will attend at a time and place specified by that representative to provide a urine sample for drugand alcohol testing. f. Mr. A and Ms. C will not allow any alcohol to be kept or consumed in their home. g. Mr. A will not return to the family home, or have unsupervised contact with the children, until he has executed and delivered tothe Agency a common-law peace bond, in the amount of $500, under which he undertakes to keep the peace and be of good behaviourand to comply strictly with terms a – f.

For the reasons given in paragraph 25, below, the term of the peace bond will be 3 months,commencing May 3, 2016. h. The Agency will be at liberty to provide a copy of the peace bond to the RCMP. i. The Agency may remove the children in the event of any breach of terms a – g. [25] I have limited the duration of the peace bond because I am gravely concerned by the lapse of time between December 4, 2015,when Mr. A was constrained to leave the family home, and April 29, 2016, when the presentation hearing was completed. Section33.1(1) of the CFCSA provides: No later than 10 days after the date of applying under

section 29.1 for a supervision order, the director must attend court for apresentation hearing unless the court is notified that the director does not intend to proceed with the application. In this case, the Agency filed its application under

section 29.1 on December 11, 2015. The presentation hearing did not begin in anymeaningful way until March 24, 2016, one hundred and four days later. A presentation hearing is an interim measure, designed to assess

whether there is any basis for a belief that the children are in need of protection and to impose interim protective measures, which are to remain in place only until the risk to the children can be assessed at a protection hearing. In many cases, it would be unreasonable to expect the parties to conduct a presentation hearing within 10 days of filing an application under

section 29.1 . For that reason, it is common for the parties to appear in court within the 10 days permitted by the statute and to seek an adjournment to allow them to prepare. I do not criticize that practice in general. However, the length of delay in this case is unacceptable. I have not been told, and probably should not be told, the reasons for the delay in this case, but it seems an appropriate question for the attention of the Representative for Children & Youth. I have limited the term of Mr.

A’s peace bond to three months because it will provide an incentive to the Agency to complete the protection hearing within that time. The judge presiding at the protection hearing will be better informed than I am, and will have the power to impose further conditions on the parties as she thinks right. May 2, 2016 ______________________________________ T. Gouge, PCJ