Director v. S.S. and C.V. Date:, 2014 BCPC 398

Citation: Director v. S.S. and C.V. Date: 20140728 2014 BCPC 0398 File No: F13114 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: A. E. M. S. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S. S. and C. V. PARENTS CFCSA MATTER RESTRICTION ON ACCESS s. 3.2 Provincial Court Act REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. OULTON

Counsel for the Director: K. Hedman Counsel for S.S.: S. Trimble Counsel for C.V.: S. Foo Place of Hearing: Abbotsford, B.C. Dates of Hearing: Aug. 9, Oct. 7, 8, 2013; Jan. 10, June 2, July 8, 9, 10, 15, 2014 Date of Judgment: July 28, 2014 [1] The Director applies for a continuing custody order under s. 49(5) or (4) of the Child, Family and Community Service Act,R.S.B.C. 1996, c. 46 ("CFCSA") for AEMV, also known as AEMS, born [omitted for publication], currently age six. [2] AEMS has been in care since August 13th, 2011.

The child's mother, SS, opposes the Director's application and seeks a lastchance order under s. 49(7) and s. 49(8) of the Act. [3] The child's father by adoption, CV, supports the mother's request for a last chance order. He will consent to a protectiveintervention order under s. 28 disallowing him contact with AEMS. [4] Evidence in this case was heard on nine days over the course of 11 months.

The Director called ten witnesses including foursocial workers who have had conduct of this file between 2009 and 2014, five police officers who have responded to the residence of themother and adoptive father, and the current foster parent, RP, who has taken care of AEMS since December 5th, 2011. [5] The mother testified and called her counsellor, Irene Peterson, and her former family outreach worker, Hayley Davies.

Theadoptive father did not testify and called no evidence. [6] To avoid another adjournment for submissions and decision when the evidence finished July 10th, 2014, and with theassistance of the judicial case manager and the cooperation of counsel, court lists were modified to accommodate counsels' submissionsJuly 15th and today's decision on July 28th, 2014. [7] Because of the position of the adoptive father, CV, I will focus my decision on the best interests of AEMS only as regards apossible return to her mother. [8] The issues to be determined are: 1.

Was AEMS in need of protection at the time of her removal on August 13th, 2011? 2. If I do find that AEMS was in need of protection at that time, before making a continuing custody order I must consider thefollowing under s. 49(6): (

a) the past conduct of the mother towards any child who is or was in her care; (

b) the plan of care; and (

c) the child's best interests. [9] I may only order that the child be placed in the continuing custody of the Director if there is no significant likelihood that thecircumstances that led to the child's removal will improve within a reasonable time or that the mother will be able to meet the child'sneeds. [10] In my analysis of the law and the facts in this case, I am guided by Madam Justice Huddart's decision for the B.C. Court ofAppeal and, in particular, comments she made in B.B. v. British Columbia (Director of Child, Family and Community Services, 2005BCCA 46: [34] This Court noted in J.(L.) v.

British Columbia (Director of Child, Family & Community Services) (2000), 78 B.C.L.R. (3d) 233,2000 BCCA 446 at paras. 26, 28 and 34 that, despite the unavoidable adversarial quality to protection proceedings, the "thrust of the Actis to provide solutions for unsatisfactory home situations including supervisory orders and the provision of support services to assist theparents" (para. 28). To that end, proceedings must be as flexible and informal as is consistent with fairness. The primary goal is to reacha consensual resolution.

Absent such a resolution, "a court will be obliged to make the order or orders it thinks fit based on the state ofthe current evidence before it" (para. 26). The scheme of the Act envisages "an evolving process whereby a court is enabled, on the bestevidence currently available, to decide what should be done concerning the custody and care of children" (para. 34). To like effect is thediscussion of Ontario's comparable legislation in Catholic Children's Aid Society of Metropolitan Toronto v.

C.M., (SCC), [1994] 2 S.C.R. 165; 113 D.L.R. (4th) 321 at 395 per L'Heureux-Dubé J. [11] With that understanding of the disposition aspect of a protection proceeding, any discussion of onus or burden of proof ismisplaced. This aspect of the proceeding should not begin with the general rule that a party will be unsuccessful unless he or shesatisfies the specific burden of proof. The parties, whether the Director, the parents, or an interested third person, all bear the evidentiaryburden of demonstrating the most appropriate care plan for a child.

[12] Once the Director has established, on a balance of probabilities, that a child is in need of protection and the Court has made thatdetermination, whether on an application under s. 41 or s. 49, the Court must assess the evidence before it to determine the appropriatecare arrangement within the strictures imposed by the Act. [13] Until a continuing custody order is made, the duty to determine what care arrangement is most appropriate for a child lies withthe Court, not with the Director or the parent unless they agree.

No general rule should deflect the Court's attention from the necessaryenquiry into the child's needs and the parents' ability to meet them with such support as the community is able to provide. [14] As McLachlin J. (as she then was) wrote of an enquiry into the best interests of the child directed by the Divorce Act, R.S.C.1985, c. 3 (2nd Supp.), so here, the enquiry into the appropriate disposition after finding a child in need of protection should not beundertaken with a mindset that defaults in favour of a pre-ordained outcome absent persuasion to the contrary: Gordon v.

Goertz, , 1996 SCC 196, [1996] 2 S.C.R. 27 at para. 44. [15] I have considered the evidence given on the nine days of this hearing. I have carefully reviewed the evidence of each witnessalthough I will not mention each one by name. From that evidence and from the exhibits filed, I make the following findings of fact. [16] By way of background, I will first set out a brief timeline and the relevant portions of the Mediation Agreement the Directorentered into with the parents on November 23rd, 2012. The Brief Timeline [17] On May 20th, 2009, the parents entered into a Voluntary Care Agreement with the Ministry.

AEMS was in care and returned toher parents July 7th, 2009. The file social worker was Charlaine Robinson from August 2009 to September 2010. [18] On September 21st, 2009, AEMS was removed for two reasons: the home was not compliant with community standards andbreaches of terms of supervision which I will detail more below as this is a brief timeline. [19] The social worker assigned to the file (from September 2010 to May 18th, 2012) was Melissa Andrews. [20] On September 14th, 2010, AEMS was returned to her parents. [21] On August 13th, 2011, AEMS was removed.

From August 13th to December 5th, 2011, AEMS had a placement with the Afoster family. [22] On October 5th, 2011, there was a domestic incident between CV and SS. [23] From December 5th, 2011, to the present, AEMS has been placed with the RP foster family. The file social worker has beenMandeep Gill from May 18th, 2012, to the present. [24] On June 1st, 2012, there was a domestic incident. [25] On November 23rd, 2012, there was a Mediation Agreement with the plan to return AEMS to her parents under a supervisionorder by mid-February 2013.

The relevant portions of that Mediation Agreement including the following terms: 1. The Director has applied for a three-month temporary custody order pursuant to s. 41(1)(

c) and s. 60 of the CFCSA with respectto the child. The parties have agreed to the temporary custody order effective December 4th, 2012, and expiring February 19th, 2013. (The Mediation Agreement actually had 2012 instead but it was agreed in court this was an error). The Director has agreed that if themother meets the terms and conditions outlined below in this Agreement, the child will be returned to the mother on or before February19th, 2013, under the terms of a six-month supervision order, pursuant to s. 46 of the CFCSA. 2. The parties have agreed to the following plan: (

a) The mother agrees to continue to attend and engage in personal counselling with Abbotsford Community Services. She furtheragrees to engage and participate in co-parent communication counselling with the father in order to develop a parenting plan once thecounselling is established through Abbotsford Community Services or Family Justice Services. (

b) The mother agrees to continue to abstain from illicit drugs and she agrees to submit to a hair test for alcohol use on November23rd, 2012. The Director agrees to follow the lab guidelines for the hair test and to provide the lab with information pertaining to themother's health conditions that could possibly distort the results. In the event that the hair test result shows a high level of alcohol use,the Director agrees to refer the mother for an assessment of her alcohol use and treatment options.

The Director agrees that as long as themother engages in the assessment and follows the recommendations of the alcohol and drug counsellor, that the plan to return the childto the mother under a supervision order upon the expiry of the temporary custody order will not be changed. If the hair test shows a highlevel of alcohol use, the mother agrees to abstain from alcohol and take a second hair test if requested by the Director. (

c) The mother agrees to submit to random alcohol urine screening tests as requested by the Director. (

d) The mother agrees to work with Hayley Davie, outreach worker, who will provide parenting support in assisting the mother toprepare for the return of the child. (

e) The mother agrees that in the event that the father shows up at her residence uninvited or without the approval of the Directorwhen she has care of the child, that she will ask him to leave and if he refuses, she will call 9-1-1. If she takes this action, the Directoragrees that the mother has taken the necessary steps to protect the child. . . .

(

i) The father agrees to communicate directly with the social worker regarding his progress rather than depending on the mother to pass messages to the social worker for him. (

j) The Director agrees that the father's progress in meeting the terms outlined in (f), (g), (

h) and (

i) will not affect the plan to return the child to the mother under the terms of the supervision order. [ 26 ] On December 30th, 2012, there was a domestic incident. [ 27 ] On January 4th, 2013, a scheduled hearing date was cancelled in light of the Mediation Agreement. [ 28 ] On February 13th, 2013, the Director applied for a continuing custody order for AEMS. [ 29 ] On February 27th, 2013, there was a domestic incident. [ 30 ] On June 3rd, 2013, SS moved from the H Street address.

This move had been social worker Mandeep Gill's suggestion. [ 31 ] On August 9th, 2013, the nine-day continuing custody order application began. [ 32 ] On April 17th, 2014, the police stopped CV driving SS's car. SS was not in the car. [ 33 ] On May 17th, 2014, CV was found SS's apartment in breach of his terms of probation not to be at her residence. Was AEMS in need of protection on August 13th, 2011? [ 34 ] Ron Elryck, after hours social worker on August 13th, 2011, was called to the SS/CV residence on that Saturday evening around 9:30 p.m. by Constable Boonstra of the Abbotsford Police Department.

Neighbours had called 9-1-1 and reported a loud disturbance. When Constable Boonstra attended, Mr. CV was leaving the residence and SS was inside with her daughter. She was yelling that she had to take care of her daughter before talking to the police. Both parents were inebriated. [ 35 ] SS had bandaged AEMS's foot, and when she entered the residence, Constable Boonstra put AEMS in bed. AEMS had a puncture wound on the top of her left foot. [ 36 ] When Mr. Elryck arrived, SS had been arrested for disturbing the peace and was gone, but CV remained, very drunk but lucid.

The house was clean, but there was broken glass in the kitchen. [ 37 ] Mr. Elryck assessed the scene and consulted with his supervisor who advised him to remove the child. Mr. CV was upset but understood. AEMS was taken to the hospital where the puncture wound on her foot was glued. Mr. Elryck asked AEMS what happened to her foot and she replied, "Daddy threw a glass at my foot." Mr. Elryck reached Ms. SS and she was upset and wanted a neighbour to look after AEMS.

She wanted to know how to get AEMS returned to her and she was advised to call the District Office. [ 38 ] On August 13th, 2011, I conclude on a balance of probabilities that AEMS was in need of protection when she was removed from her parents' care. Both her parents were intoxicated, her father had thrown a glass and it had cut her foot, and her mother had been arrested for disturbing the peace.

Past Conduct of SS to D and AEMS [ 39 ] As I have said, Mandeep Gill is the social worker who has had conduct of this file since May 18th, 2012. [ 40 ] When she testified, she advised that SS was in care herself from November 8th, 1987 to June 11th, 1993, from the age of 13 to 19. Ms. SS testified that she put herself in care. Her son, D, was born [omitted for publication], while she was in care, a month before her 18th birthday. [ 41 ] D was first brought into care November 18th, 1992, because SS's boyfriend at the time, FC, had broken her nose and had threatened the child.

D was returned under a supervision order which ended June 10th, 1993. A one week Voluntary Care Agreement was entered into later in June due to continued violence in the home. [ 42 ] D was removed on September 19th, 1993, when he sustained a burn on his back believed to be a non-accidental injury. D was returned in January 1995. He was removed March 26th, 1996. In the weeks prior to that removal, he was seen by local police wandering the streets alone on three occasions. [ 43 ] Substance abuse, specifically cocaine and heroin and possibly alcohol, were a concern for SS at that time. Ms.

SS made unsuccessful attempts at treatment with a view to having D returned, however, she signed a consent to a continuing custody order on June 3rd, 1998, for D, when she was 23 years old. Ms. SS was in a relationship with Mr. CV at this time. SS remained in contact with her son but the Director's file was closed. [ 44 ] Ms. SS testified that D remained in foster care from the age of six until he was 12. He then ran away from his foster home and returned to live with her. [ 45 ] Ms. SS currently has a relationship with D and she has had a room in her house for him in the past.

When she testified, she mentioned that he had legal troubles and if he was going to smoke marihuana in her home, he was not welcome. [ 46 ] The Director's file was re-opened on March 25th, 2008, shortly after AEMS was born. A caller said that he was not sure, but he thought CV was using drugs. The Director called SS and she advised that CV was not living in her home. The file was closed. [ 47 ] Although the file was closed, this was inconsistent with SS's evidence in this hearing that CV came to visit her when AEMS was

about a month old and never left. [ 48 ] On November 28th, 2008, a caller reported that SS had hired a prostitute to come into her home. CV and SS were living together then. The house was found to be appropriate, there were no signs of drug or alcohol abuse, AEMS was in the home sleeping, and the file was closed again. CV and SS denied they had a verbal dispute. [ 49 ] On January 11th, 2009, there was a 9-1-1 call from the SS-CV residence. CV had reported a break and enter to the house, which was in disarray when police attended.

It later emerged that he had made a false report of a break and enter after damaging the house himself, because he wanted insurance to pay for the damage he had caused. When this took place, SS had taken AEMS to a hotel. [ 50 ] Police contacted the Ministry who referred the couple to counselling services.

They expressed remorse and said they knew it was not good for AEMS to be exposed to this, but the parents did not follow through with accessing any of these services. [ 51 ] On April 9th, 2009, a caller to the Ministry reported a rumour that both CV and SS were using drugs. [ 52 ] On May 15th, 2009, SS relapsed, using heroin and confirmed that that was true.

Both parents were using drugs and a screen taken May 25th, 2009, showed SS positive for cocaine and methadone and CV positive for benzodiazepine and methadone. [ 53 ] The Voluntary Care Agreement that I previously noted was entered into on the 20th of May, 2009, and was set to go to the 20th of August, 2009, to allow the family to access services. The parents made good progress, however, and accessed services, and AEMS was returned early under an interim supervision order on July 7th, 2009. [ 54 ] In August 2009, the Director obtained a three-month supervision order.

Social Worker Charlaine Robinson took over the file and she had it, as I have said, from August 2009 to September 2010. [ 55 ] On September 1st, 2009, AEMS was removed. The reasons for removal included that SS and CV were breaching terms of the supervision order: AEMS had missed two to three weeks of daycare, there were concerns about the state of the home, concerns about drug and alcohol use, and there was marihuana found on a plate in the kitchen, and two marihuana plants in a locked shed out back. [ 56 ] AEMS was returned to her parents in September of 2010.

She was away that time for a year from the age of one and a-half to two and a-half. [ 57 ] Eleven months later, August 13th, 2011, the current removal took place. [ 58 ] Since birth AEMS has been in her mother's care a total of 28 months. She has been in the RP foster home for 32 months. Together, those constitute five years or 60 months of AEMS's life. She has been with other caregivers for the balance.

She is 77 months old now so the remaining 17 months were with other caregivers. [ 59 ] Despite references to timeliness being important in s. 37(2) and (4) of the Act , busy court dockets have meant lengthy waits to have this important matter decided. However, the time required to process a case cannot be the justification for continuing to separate a family according to Re: C.S.S. , [1998] B.C.J. No. 2969 (QL)(Prov. Ct.) . The Director's Plan of Care [ 60 ] It is clear that AEMS has done well and thrived in the able care of RP and her husband B since December 5th, 2011.

AEMS's first placement, from August to December 2011, was less happy. There were language difficulties with the foster family, whose first language was not English. There were perhaps cultural difficulties or differences as well. In that placement, an allegation also arose that was investigated and not founded. [ 61 ] The Director's plan of care for AEMS is to have AEMS adopted. Mrs. RP, however, does not wish to adopt AEMS. She testified she would be interested in a long-term foster placement. AEMS is six and a-half years old.

The Director's plan, if a continuing custody order were granted, would signify a major change in her young life after two and a–half years of relative stability. [ 62 ] While the Director argues that in its view a permanent adoption is in the long-term best interests of AEMS, the significant short- term implications of this proposal are troubling. Constancy and continuity of care for AEMS are not in the short term plan of care that the Director proposes. [ 63 ] There is a penumbra of uncertainty over the proposed plan of care for AEMS. No firm timeline is suggested for how long the proposed adoption would take.

It is also unclear what the implications of the transition to adoption, or an eventual adoption, would be for AEMS's connection to her birth family. [ 64 ] The Director provided case law to the effect that access to the birth family is the exception rather than the rule after a continuing custody order is granted.

This is to provide the fewest impediments to a successful adoption and secure attachment on both sides for both the child and the adoptive family. [ 65 ] Further, while the Director would support an openness agreement between an adoptive family and AEMS's birth family, counsel for the Director fairly pointed out that she could not guarantee that this would in fact take place, and she noted as well that openness agreements, when they do exist, are not legally enforceable. [ 66 ] Possibly cutting all ties with her mother at the same time as removing her from the stable environment she has thrived in for the last two and a-half years, is a course of action that I do see as emotionally harmful to a little girl who does have a solid bond with her mother, her mother's extended family, and her foster parents, RP and BP.

The Child's Best Interests

[ 67 ] The best interests of AEMS is at once the most important consideration and the most difficult to discern with certainty. [ 68 ] The guiding principles of the Child, Family and Community Services Act provide in s. 2 that: 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) [Does not apply] (

g) decisions relating to children should be made and implemented in a timely manner. [ 69 ]

Section 4 of the Act entitled "Best interests of child" requires that: 4. … 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. [ 70 ] The Director concedes there are no issues with Ms. SS's parenting of AEMS when mother and daughter are alone. Any witness who was in a position to comment affirmed the bond that exists between Ms. SS and her daughter; in this regard, I consider the evidence of all the social workers, the foster mother, and Hayley Davie. [ 71 ] In my review of the numerous supervised visits between Ms.

SS and her daughter, there was an exchange between SS and her daughter that happened on March 15th, 2012, which impressed me in my assessment of the quality of the relationship between Ms. SS and AEMS. [ 72 ] The visit was recorded by family outreach worker, Hayley Davie, who was a witness for the mother in the hearing. AEMS had turned four months before and she had been in foster care for seven months, three months at the time with RP. At 9:00 a.m., AEMS arrives and greets SS at the door. AEMS hesitates as she goes to hug the foster parent goodbye. The foster mom and SS let AEMS know she can hug the foster mom.

AEMS does this and foster mom leaves. SS tells AEMS that "It's okay to love us both" and "If you want to love RP and hug her, it's okay. Mommy wants you to love and be loved." AEMS hugs SS and SS tells her again, "You have enough love for both of us." [ 73 ] This exchange told me, by what SS did, that she loves her daughter and is capable of putting her daughter's needs before her own. [ 74 ] I have read all the access reports in Exhibit 4 and Exhibit 7 that recorded visits between mother and daughter between March 2012 and April 2013. There is the occasional appearance of the adoptive father.

Exhibit 8 recorded visits between May and December 2009 and I reviewed those as well. Most of the visits are SS and AEMS. Overall, I noted SS's consistency, tenderness, and sense of play with her daughter. [ 75 ] I observed the same distinct change of demeanour when Ms. SS testified. She saw pictures of her daughter taken over time since AEMS was a baby.

As she described the pictures, her tone softened, her pride was apparent and her sincerity was palpable, particularly when looking at her recent dance competition photo where she told me AEMS won a silver medal, and an older photo of toddler AEMS on a horse. [ 76 ] Ms. SS's general demeanour when she testified was, as her counsellor Irene Peterson observed about her demeanour in general, very emotional and she was also quick to interrupt and evince frustration. This was also intermittently apparent in the courtroom although Ms. SS always apologized for her outbursts. Ms.

SS is loud, which she admits, and she could be a difficult witness in cross- examination. I noted that but also placed it in the context of what the subject matter of these proceedings was. [ 77 ] The contrast with her observed and her recorded demeanour when she interacts with her daughter or is speaking about her in

court was stark. Ms. SS has no mental health issues. Her counsellor, Irene Peterson, tested her for depression and concluded she was not depressed. Ms. Peterson noted that Ms. SS does have ongoing anxiety about the loss of her daughter. [ 78 ] Ms. SS has some serious health concerns: polycystic kidney disease and endocarditis, a heart condition, but she advised and a letter from Dr. Keith, cardiologist, dated August 26th, 2010, attests that these concerns would not compromise her ability to care for her child.

To the extent that these health concerns might impede her occasionally, she expressed a willingness to find ways to get assistance. [ 79 ] SS has regularly attended visits with her daughter. Since December 30th, 2012, these have been supervised visits, two times a week. [ 80 ] The Director pointed out that she missed 11 visits in the 35 weeks between September 2013 and May 2014 for a medical issue she had with swollen and painful feet which she says is now resolved although not diagnosed.

When she was going to miss a visit, she called to advise that she could not attend. [ 81 ] I want to make a brief comment about two areas of evidence -- the evidence of Dr. Korpach and Ms. SS's mother. [ 82 ] Dr. Korpach did not testify. She interviewed AEMS in March 2012 in connection with the allegation brought by the A family. Her focus was with respect to that allegation. AEMS had turned four years old a few weeks before and had lived in three different homes over the preceding seven months. Because Dr. Korpach was not called as a witness, she was not cross-examined.

The face page of her report states: This consultation addresses specific issues related to the child in question. It addresses specific referral questions related to child maltreatment and is not a comprehensive child assessment. Recommendations are made concerning treatment needs of the child primarily. The report does not address legal issues such as custody or access or parental capacity. [ 83 ] I do not place a great deal of weight on this report given the context in which it arose and the absence of cross-examination. [ 84 ] SS's mother did not testify.

In cross-examination of SS, counsel for the Director suggested that Ms. SS was aware that her mother did not support the return of AEMS to her care, to which Ms. SS replied, "That's news to me." [ 85 ] Presuming a good faith basis to the question, I enquired about it when all the evidence had been presented. On the day of submissions, the Director provided an email from Ms. SS's mother that was appended to an affidavit of the file's social worker, Ms. Gill. I attach little weight to this email as what she wrote in it required clarification in my view.

She was not under oath, and she was not subject to cross-examination. Is there no significant likelihood that the circumstances which led to the child's removal will improve within a reasonable period of time? [ 86 ] When AEMS was removed in August of 2011, the Director had concerns in two areas: substance abuse and domestic violence. These are both important and valid concerns and the presence of either in parents or in a home is not in the best interests of any child.

Substance Abuse [ 87 ] The Director no longer has concerns that SS is abusing drugs or alcohol. [ 88 ] On November 23rd, 2012, SS had a hair test, the results of which were received in January of 2013 and they indicated strong evidence of frequent excessive alcohol consumption over several months prior to the hair sample. [ 89 ] Since then, Ms. SS requested that alcohol be added to her regular urine screening test and there has been no alcohol detected in those regular urine screening tests. She offered to the Director to take another hair test but the Director has not requested that she do so.

The Director advised that they considered it earlier in 2014, but that they did not request that Ms. SS provide another hair sample. [ 90 ] Historically, Ms. SS entered into a Voluntary Care Agreement for AEMS in May 2009 when she had relapsed and was using drugs. CV [ 91 ] Since AEMS's removal, CV has not made the consistent efforts required to have contact or parenting time with AEMS. He last saw AEMS in December of 2012. [ 92 ] Counsel for the Director notes in her written submissions that his last contact of substance was in June 2012.

His contact with file social worker, Mandeep Gill, has also been sporadic. [ 93 ] His violence to SS has resulted in two arrests, December 30th, 2012, and February 27th, 2013, a peace bond resulting from the December 30th incident, and a 90-day jail sentence from the February 2013 incident and a two-year probation order from that same incident which binds him until May 2015. [ 94 ] A complicating factor has been that since AEMS's birth, her biological father, who is not CV and who has played no active role in AEMS's life, has made his presence known by calling the Ministry to report his concerns.

There is currently pending litigation in Supreme Court involving SS, CV, and AEMS's biological father. Domestic Violence – Relationship with CV [ 95 ] Ms. SS minimizes, at times, the length of her relationship with CV, and also the extent of his violent nature.

[ 96 ] From my careful review of the material filed and the evidence I heard, Mr. CV has been in Ms. SS's life since 1994. He was present at supervised visits with D in 1994. Although his issues with substance abuse, alcohol, and his criminal record were noted at that time, there is no mention of domestic violence between SS and CV in the years 1994 to 1998. [ 97 ] There are ten police encounters with SS and CV at their home between January 2009 and February 27th, 2013. In three of them, October 6th, 2011, December 30th, 2012, and February 27th, 2013, he was violent to her.

On October 6th, 2011, the police report states that Ms. SS said the argument began with CV yelling at her that she had given $700.00 to her lawyer to try and get their daughter back instead of spending the money to get his vehicle out of the impound lot from a recent impaired driving charge. She was arrested on that date because CV had scratches on his face. [ 98 ] The social worker, Melissa Andrews, testified that Ms. SS told her CV had assaulted her on that occasion by punching her in the face and then dragging her down the stairs by her hair.

SS admitted being dragged down the stairs by her hair. [ 99 ] On June 1st, 2012, CV called 9-1-1. He said he had broken a glass and that SS had cut her foot on it. She said that while trying to move a fish tank together with him, it had dropped and a piece of it had cut her foot. Both parties had been drinking on that occasion. SS attended the hospital to have the cut on her foot attended to. [ 100 ] On December 30th, 2012, there was an incident where SS returned home to find herself locked out of her house and CV inside. Eventually, both parties were inside, both had been drinking, matters escalated, and Mr.

CV pushed SS. She called the police. While she was speaking with 9-1-1 on the phone, CV in the background was heard to be saying that he had a gun and he would shoot the police if they attended. Many police officers attended to this call and that was the incident that resulted in a peace bond for CV and on that date, December 30th, 2012, he was arrested. [ 101 ] On February 27th, 2013, CV threw boiling water on SS. She had burns to her face, neck and right shoulder.

She was intoxicated at the time as was CV. [ 102 ] On March 3rd, 2013, the Abbotsford Police Department added her name to their Domestic Violence Unit list. [ 103 ] These three incidents, in particular, and the frequent contact with the police, in general, that surrounded them, are of concern to the Director, and they are of concern to the Court. [ 104 ] While it appears from the record that for a long time the Director was not prescriptive about whether SS should remain in her relationship with CV, the December 30th, 2012, incident signalled a change in the Director's approach. [ 105 ] Before that date, AEMS was being returned to her mother on or before February 19th, 2013.

CV and SS were to co-parent according to the terms of that Mediation Agreement. [ 106 ] After that date, and before the February 27th, 2013, incident, SS's visits with AEMS became supervised and the Director filed for a continuing custody order. [ 107 ] Having considered all the evidence in this hearing, I agree with the position that the Director has implicitly taken.

The essence of the Director's protection concern for AEMS is that SS will be unable or unwilling to bar CV from her life, and by consequence from her daughter's life, should AEMS be returned to her. [ 108 ] It is clear that the violence of CV to SS escalated over time. It is imperative that Ms. SS cut all her ties with CV as his presence in her life has been a major contributing cause to the loss of her daughter. AEMS is not safe and will certainly be traumatized if she witnesses or overhears domestic violence. The Recent Incident of May 17th, 2014 [ 109 ] CV was stopped driving SS's car on April 17th, 2014.

The Domestic Violence Unit had flagged the situation on March 13th, 2013, and they were concerned the parties might be together again. [ 110 ] Detective Murray was at SS's apartment building on May 17th, 2014. He described standing at SS's apartment door and hearing SS say, "Why can't you help me, C?" This was a breach of CV's probation order not to be at her residence. However, the probation order itself is a modified no contact order and Condition 10 reads: 10.

You shall not attend at the residence of SS as may be known to you, except you may attend SS's on two occasions – between 9:00 a.m. and 6:00 p.m. on or before June 2nd, 2013, to assist in packing up the residence. [ 111 ] That was the condition that CV was breaching by being there. [ 112 ] Condition 11 reads: 11. You shall immediately leave the presence of SS at her request or upon the request of a peace officer or your probation officer and thereafter you shall not communicate with SS or return to SS's presence without the prior written permission of your probation officer. [ 113 ] Condition 12: 12.

You shall not be in the presence of SS if you or SS are consuming alcohol or if you have consumed alcohol within the preceding 24 hours and thereafter you shall not communicate with SS or return to SS's presence without the prior written permission of your probation officer. [ 114 ] There was no report of violence in relation to the May 17th, 2014, incident of CV towards SS and neither party was noted to be intoxicated by police officers who dealt with them.

[115] SS, when she testified, said it was a poor choice on her part to have allowed CV to enter her home. Her explanation was that shewas planning on moving again, she still had some of his tools, and she wanted him to come and collect them so that she did not have topack up and move them again. Counselling [116] Since October 2009, SS has actively sought and attended counselling to address her substance abuse issues. Lydia KirkMcDonald (now Anderson) was her substance abuse counsellor until very recently. [117] Ms. SS attended on a regular basis and found the counselling helpful.

She will now attend with someone else named -- shethinks -- Leslie. [118] Since May of 2013, she has actively sought and attended counselling to address trauma arising from domestic violence. AfterCV threw boiling water on her in February of 2013, in May of 2013 she received 24 sessions with trauma therapist, Irene Peterson. Whenthose 24 sessions were completed, she applied for and was granted a further 24 sessions in May of 2014. [119] In addition to the sessions with Irene Peterson, she attended a trauma group that lasted for ten weeks, with each session beingtwo hours long, in the fall of 2013.

She has asked to attend again and Ms. Peterson advises that she will assist to facilitate that secondattendance. Ms. Peterson says that SS is not in denial about being a victim of domestic violence. [120] The Director points out that Ms. SS has taken counselling before. When the choice to stay or leave her relationship was one thatwas left to Ms. SS, much of the former counselling was couples or relationship counselling. [121] The counselling with Irene Peterson is different in its focus.

It is individual counselling aimed at developing insight andaddressing the poor choices that have kept SS in an abusive relationship with CV to the detriment of her child and herself. [122] This individual counselling since 2013, and the trauma group since September 2013, have been a positive change in Ms. SSsince her daughter was removed. Ms. Peterson testified that SS's prospects of success at avoiding domestic violence in the future haveincreased because of this counselling. The Mother's Plan of Care [123] Ms.

SS would not cut off her mother as the maternal grandmother to AEMS as that relationship has been a positive andbeneficial one for AEMS. She is also willing to maintain contact with RP as she recognizes that that has also been a positive bond forher daughter. [124] When she testified, Ms. SS said RP said she would provide babysitting or respite care if AEMS were returned to her. TheDirector advised in submissions that RP denied her willingness to do this, but did wish to maintain a connection with AEMS if the childleft her care. [125] Ms. SS said she would keep CV away from her daughter.

She said she would maintain the extracurricular activities that AEMSenjoys and excels in. She says she has not had a drink since August 2013, and she added alcohol to her regular urine screening test. TheDirector, as I have noted, considered but did not ask Ms. SS for another hair test although she offered to provide one. [126] The Director noted that SS appears isolated without social support. Ms. SS says that she has made some friends in her traumagroup and some of them reside at Christine Lam. [127] The Director noted in written submissions that AEMS has become accustomed to a lifestyle that Ms.

SS could not possiblyprovide. [128] The spirit of the Act is to preserve family ties where appropriate with support where available. In British Columbia (Director ofFamily and Child Services) v. K.M., 2000 BCPC 63 , [2000] B.C.J. No. 1723 (Prov. Ct.) the Court noted the intent of thelegislature is to keep families together where this is possible. Even children who are in need of protection should be returned to theirparents where it is safe to do so.

The fact others may provide better care for a child does not provide a basis for a continuing custodyorder where the parents can provide adequate care given the proper resources and service. [129] Turning to the documents that were just filed this morning. [130] It is troubling that CV, 12 days before, advised the Court through his counsel that he would consent to a protective interventionorder and then apparently filled out an application seeking to terminate the no contact portion of his probation order. [131] I asked Ms.

SS to testify regarding this because it goes to the essence of the Director's concern for AEMS in the future. What itunderscores is the Director's concern -- which is shared by the Court -- that SS must categorically and clearly end CV's involvement inher life in any way. [132] When she testified, Ms. SS said she was not aware that Mr. CV had filled out this application. This application purports to bespeaking for her. I note that I am told that it is the social worker's understanding that this application was filed, and Ms. Gill furtheradvised that it was dealt with in court on July 16th, 2014, the day after Mr.

CV's counsel advised that he was consenting to a protectiveintervention order. If that is the case, it is troubling, but it is also an application filled out by CV. [133] With respect to the other evidence that was brought before me today, it was filed by counsel for Ms. SS and it details effortsmade by SS to obtain secure housing in March of 2013 through either MCC Rental Assistance at a co-op or at a program offered atChristine Lam. It shows her intention during that time period to secure a residence for herself. Conclusion

[ 134 ] The plan of care proposed by SS, to maintain AEMS's bonds with all the people who have been positive influences in her life, is a plan that is in her best interests and accords with s. 2(

e) of the Act : "kinship ties and a child's attachment to the extended family should be preserved if possible." [ 135 ] SS is AEMS's mother and the "family is the preferred environment for the care and upbringing of a child," according to s. 2(b). There is a clear bond between the two and a relationship of quality. To return AEMS to SS will affirm the importance of continuity in AEMS's care. SS loves her daughter. She must from now on consistently act with this love by protecting her daughter from the abuse, harm or threat of harm that CV represents.

Without CV in their lives, AEMS will be protected from abuse, neglect, harm, or threat of harm as she is entitled to be: s. 2(a). [ 136 ] I find Ms. SS is willing and able to meet AEMS's needs, and to provide a safe and nurturing environment, with the appropriate support. I cannot say there is no significant likelihood that the circumstances which led to AEMS's removal will not improve in a reasonable time, given the changes that have already taken place: 1. The Director has no concern about her drug or alcohol use. 2. She moved in June 2013 at the suggestion of social worker, Mandeep Gill. 3.

She no longer lives with CV. 4. Her lease expired in June 2014 and she has not renewed it. She has applied, as of July 10th, 2014, to Christine Lam, a transitional residence which allows stays of up to two years. It is a residence which does not allow men. Irene Peterson said she would do what she could to facilitate Ms. SS's acceptance there. 5.

She has begun, and plans to continue, counselling which is focussed on understanding and leaving an abusive relationship rather than counselling focussed on preserving that same relationship. [ 137 ] I order that AEMS be returned to SS under s. 49(7) of the CFCSA under the supervision of the Director for six months under s. 49(8), upon the expiry of the temporary custody order July 31st, 2014. [ 138 ] My intention for this supervision order is to acknowledge that, given the mother has only had supervised visits for the last 18 months, a gradual transition back to her mother's care is in AEMS's best interests. [ 139 ] I expect the Director will cooperate with the foster parents and the mother to facilitate this transition and ensure that it is as smooth as possible for AEMS and will invite submissions from counsel as to the appropriate final terms to this supervision order. [ 140 ] My suggestion for the supervision order is as follows and I will provide this and then we will take the morning break: 1.

The mother will continue to take counselling to the satisfaction of the Director. 2. The Director will have the right to visit and speak with AEMS privately. 3. The mother will abstain from the consumption of alcohol or non-prescription drugs. 4. The mother will not allow CV into her home. 5. The mother will not allow CV to have contact or communication with AEMS. 6. The mother will attend all scheduled appointments with the Ministry social worker, counsellors, doctors and any other support services professionals. 7. The mother will submit to hair tests for the purpose of drug and alcohol testing. 8.

The mother will inform the Director of any change of address or phone number prior to the change. 9. The mother will cooperate with the Director and engage in all support services recommended by the Director. 10. The mother will allow the Director or his agent to visit the home at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the child. Failure to comply with one or more terms of the supervision order may result in the removal of the child. 11.

There will be a protective intervention order under s. 28(3) of the Act prohibiting CV from having any contact directly or indirectly with AEMV, also known as AEMS, for six months which is the maximum time allowable under the Act . 12. If the Director wishes a police assistance clause with this order I will add that, but it is something that I leave for counsel's consideration. [ 141 ] I will seize myself of any future proceedings in this matter, given that I have heard the nine days of evidence, and am now, I think, in the best position to deal with any further proceedings in this matter. [ 142 ] MS.

HEDMAN : A point of clarification, Your Honour, before we take a quick break. When was Your Honour proposing that supervision order take effect? [ 143 ] THE COURT : Well, I am inviting submissions from counsel with respect to that. I know the temporary custody order expires July 31st, 2014 –

[ 144 ] MS . HEDMAN: Yes. [ 145 ] THE COURT : -- but as I have said, I am mindful of the fact that this would be a big transition, for AEMS in particular, and as I said however that transition can be managed to make it as smooth and peaceful for AEMS is my focus and that is where I would invite submissions as to how that could be best accomplished. [ 146 ] MS . HEDMAN: Thank you. [ 147 ] THE COURT : We will take the morning break now. (PROCEEDINGS ADJOURNED FOR MORNING RECESS) (PROCEEDINGS RECONVENED) [SUBMISSIONS AND DISCUSSION] [ 148 ] THE COURT: All right.

We have stayed a little late through the lunch hour and because you have enough consensus that we think I could make this order now, or would you like to come back at 1:30? [ 149 ] MS. HEDMAN: I believe Your Honour can make the order now. I think we have time. [ 150 ] MS. TRIMBLE: Yes. [ 151 ] THE COURT: All right. So with respect to the terms of the eventual supervision order, Ms. Hedman and Ms. Trimble, did you have any submissions on that because I did read that into the record but... [ 152 ] MS.

HEDMAN: No, those were fine and if you want to add that she remain in the Abbotsford area for the term of the supervision, that is fine. [ 153 ] THE COURT: Yes. Okay. So there will be a temporary custody order in favour of the Director – [ 154 ] MS. HEDMAN: No, I think we are extending the temporary order. [ 155 ] THE COURT: Thank you. I extend the temporary custody order under s. 45(1.1) to September 28th, 2014. Following the temporary custody order – is there, Ms. Hedman do you need to (indiscernible) – [ 156 ] MS.

HEDMAN: No. [ 157 ] THE COURT: Following the temporary custody order, there will be a supervision order under s. 46 of the Act to take effect on or before September 28th or would the – would it be more – [ 158 ] MS. HEDMAN: I think it has to have a firm date, Your Honour. [ 159 ] THE COURT: All right. Six month supervision order to begin September 29th, 2014. The terms of the supervision order will be as stated previously with the addition of the term that SS will remain in Abbotsford for the period of the supervision order. [ 160 ] MS.

HEDMAN: And then Your Honour previously made the protective intervention order pursuant to s. 28 and – [ 161 ] THE COURT: Yes, 28(3) and there was a – [ 162 ] MS. HEDMAN: I was going to ask that Your Honour consider adding a peace officer assist clause to assist the enforcement of that order. [ 163 ] THE COURT : Yes and that is what I anticipated the Director would want and I will add the peace officer enforcement clause to the protective intervention order under s. 28(4) – I believe – I do not have the Act in front of me right now, but the peace officer intervention clause. [ 164 ] MS .

HEDMAN: Neither do I. [ 165 ] THE COURT : With respect to the protective intervention order, my reading of the

section is that it says "against a child". The other terms of the supervision order that require that Ms. SS does not allow CV into her home, does not allow contact or communication between CV and AEMS, provided it is complied with – does the Director have any submissions about the wording, or wanting to change how? [ 166 ] MS . HEDMAN: No, Your Honour. [ 167 ] THE COURT : Thank you very much to counsel. [ 168 ] MS. TRIMBLE : Thank you, Your Honour. [ 169 ] THE COURT : No, thank you both counsel for your very helpful submissions throughout. (ORAL REASONS FOR JUDGMENT CONCLUDED)