E.D.M.E. v. J.E.H. Date:, 2012 BCPC 549

Citation: E.D.M.E. v. J.E.H. Date: 20120525 2012 BCPC 0549 File No: F17702 Registry: Surrey 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: N.Z.E. , born May 22, 2001 BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: E.D.M.E. GUARDIANS File No: F32163 Registry: Surrey AND IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: J.E.H. APPLICANT AND: E.D.M.E. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. E. ROUNTHWAITE

Counsel for the Director: N. Rence Counsel for the Parent: D. O’Donnell (for the Mother, E.D.M.E.) Appearing in person: J.E.H. (Father) Place of Hearing: Surrey , B.C. Dates of Hearing: April 30, May 1, 2, 3, 2012 Date of Judgment: May 24, 2012 [ 1 ] The Director of Child, Family and Community Service (“the Director”) has applied under s. 49(5) of the Child, Family and Community Service Act (“ CFCSA ”) for an order that NZE, born May 22, 2001, be placed in the continuing custody of the Director.

NZE’s parents, EDME (“the mother”) and JEH (“the father”), both oppose a continuing custody order and seek custody of NZE under the Family Relations Act (“ FRA ”). The Director opposes their applications, and if granted continuing custody plans to keep NZE in his current foster home until he turns 19. [ 2 ] In the hearing of these applications, the parties agreed that the Director would present evidence first, followed by the father, and then by the mother.

In these Reasons I will first outline the applicable law, then summarize the circumstances that gave rise to NZE’s removal from his mother’s custody in 2009, then deal with each parent’s FRA application for custody, and then deal with the Director’s application for a continuing custody order.

Law [ 3 ] Section 49(5) of the CFCSA permits me to order that NZE be placed in the continuing custody of the Director if there is no significant likelihood that the circumstances that led to his removal will improve within a reasonable time, or that his mother, the parent from whom he was removed, will be able to meet his needs.

Section 49(6) requires me to consider the mother’s past conduct towards any child in her care, the Director’s plan of care, and NZE’s best interests. [ 4 ] According to s. 49(7), if I do not make a continuing custody order I must either order that NZE be returned to his mother’s custody, or that he remain in the temporary custody of the Director or the father for up to 6 months. Finally, if NZE is placed with either parent, I may order that the Director supervise his care for up to 6 months under s. 49(8). [ 5 ]

Section 2 of the CFCSA makes NZE’s safety and well-being my paramount considerations in accordance with these 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. [ 6 ] When deciding the issue of custody under the FRA , I must give paramount consideration to NZE’s best interests, including these factors set out in s. 24(1): (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. [ 7 ] While hearsay evidence is admissible in this hearing, it has many potential weaknesses. Written hearsay is entitled to no more

weight than spoken hearsay, and both must be assessed very carefully. Circumstances That led to NZE’s Removal [ 8 ] On October 4, 2010, after an eight day hearing, the Honourable Judge Raven dealt with a previous application by the Director for a continuing custody order for NZE and his sister T by granting custody of T to her father, JB, and making a six month temporary custody order for NZE “so both of his parents can continue to improve their circumstances with a view to playing a significant role in NZE’s upbringing in the foreseeable future” ( Director of CFCS and EDME, JEH v. EDME, and JRB v.

EDME, October 4, 2010, BCPC, Surrey Registry, #F17702 at para 92 ; found in Ex. 1, Tab 2). [ 9 ] The circumstances that led to NZE’s removal from his mother’s care on July 16, 2009, are set out in detail in Judge Raven’s Reasons for Judgment at paragraphs 11 through 43. I will summarize them as follows. [ 10 ] The mother has a permanent intellectual impairment, Fetal Alcohol Effect (“FAE”), that affects her ability to care for children, as well as mood and personality problems that are ameliorated by consistent use of prescribed medications.

She requires significant, long term support to compensate for her intellectual limitations. Over the years, her mental health has deteriorated from time to time, negatively affecting her ability to parent. [ 11 ] The mother’s history with the Director dates back to 1994. She has had recurring problems with hoarding behavior that has made her homes unsanitary and unsafe. It has created fire hazards and prevented her children from sleeping in their rooms because they were crammed so full of hoarded objects. Physical neglect of her children and the use of physical discipline have also been recurring problems.

At times resources offered by the Director and the mother’s efforts have yielded improvements, but these have proven only temporary. [ 12 ] The mother’s two older children, born in 1991 and 1993, were removed from her custody in 1996 and their fathers obtained custody of them after she was found to have physically abused the older child and attributed illnesses to her that could not be objectively verified. Following the removal of her third child, T, two days after her birth, a temporary custody order was made in November 2000.

When NZE was born on May 22, 2001, and T was returned in August 2001, supervision orders were made concerning both children. [ 13 ] The mother began seeing a psychiatrist, Dr. Melck, in 1998 and he continues to treat her with Zoloft for depression and Dexedrine for ADHD. In 1999 he diagnosed her with an adjustment order with depressed mood and symptoms of a borderline personality disorder and recommended cognitive behavioural therapy.

At that time he provided an opinion that the mother could care for T with appropriate medications and support services. [ 14 ] In 2004 the Director investigated concerns of neglect and hoarding making the home inhabitable. The mother was not working co-operatively with the Director to address the children’s reported developmental delays. The Director provided intensive in-home support and offered the mother a long term parenting program. The home where the mother lived with both children was a fire hazard, and it was condemned in December 2004.

The mother then moved into a trailer owned by her mother, PR. [ 15 ] In August 2005 NZE told a social worker his mother was spanking him and throwing him in his room. His front teeth were decayed. The mother refused to meet with a social worker or see her doctor and she would not take the children to daycare.

After being removed on August 19, 2005, the children were in the temporary custody of the Director for 11 months and returned to their mother under a supervision order that lasted from July 2006 until July 2007. [ 16 ] Between 2007 and 2009, the mother stopped taking prescribed medications and her mental health deteriorated again. In the spring of 2009, the Director received a complaint about the condition of the mother’s residence, her physical discipline and neglect of the children.

A supervision order without removal was made on April 23, 2009, after the family was found to be living in hazardous, unhygienic and unsafe conditions in the trailer, in which there was so much clutter the children couldn’t sleep in their bedrooms and there were only small paths between piles of boxes. There was also moldy food in the refrigerator and rodent droppings in the cupboard. NZE had missed 29 and T 24 days of school that year, and they reported that their mother spanked them and yanked their arms; they often slept in their clothes and rarely brushed their teeth.

When the mother co-operated with the Director in moving with the children to a transition house and agreed to clean and clear her trailer, the supervision order was made with terms including a requirement to keep the Director informed of any move. [ 17 ] However, the mother did not comply with the terms of the supervision order and the children were removed again on July 16, 2009. The children had lived in 9 different residences or camps between March 6 and July 16, 2009.

The mother had not obtained psychiatric help; she moved the children without notifying the Director; and she ignored or rejected the services provided to her, including help with cleaning her home and getting rid of the overwhelming clutter. In May 2009, for example, she became upset when a support worker told her she would be getting help to clean her home and possibly donate un-needed and unused items. [ 18 ] When Dr.

Melck testified in 2010, he did not disagree with other expert opinions that the mother has FAE, which can cause difficulty with communication and judgment, social problems, and trouble distinguishing fantasy from reality; and that she exhibited a significant personality disturbance with paranoid features. He reported that she was very angry, had a low frustration tolerance, and is extremely reactive in her relationship with the Director, although he did not find this surprising given her psychiatric disorder and the fact that she has been in conflict with the Director for many years.

He recommended a specific cognitive behavioral therapy to improve her organizational skills and procrastination and allow her to “de-clutter” her home and “hopefully maintain it de-cluttered”. [ 19 ] After the 2009 removal, both NZE and T were placed with the family of NZE’s godfather as a restricted foster home. T moved to the home of her father, Mr. B, and his common law spouse, CM, following Judge Raven’s decision in October 2010. When the godfather’s family was no longer able to care for NZE, he too moved to the home of Mr. B (“the foster father”) and Ms.

CM (“the foster mother”) on about June 30, 2012. [ 20 ] Judge Raven found that the mother’s breaches of the April 23, 2009, supervision order placed the children in need of protection from neglect and risk of emotional and physical harm at the time of the July 16, 2009, removal.

The Child [ 21 ] NZE will be eleven years old later this month. He is now in Grade Five, and living with the foster parents, his half sister, T, aged twelve, the foster mother’s two sons aged fifteen and twelve, the foster father’s three sons aged fourteen, six, and four, and the foster mother’s mother. He is an outgoing, loving, high energy, inquisitive, sometimes argumentative and intractable child who loves science, Boys and Girls Club, and Scouts.

Although his mother believes he suffers from asthma, an allergy to cottonwood trees, and a heart murmur, he has not had any physical health problems while in foster care. He was recently diagnosed as ADHD and has begun prescribed medication that is having a positive effect. [ 22 ] While with his mother and for his first year in foster care, NZE attended a less structured school where children learned from field trips and related research and activities. In Grade Four he moved to a more structured school.

NZE has tested in the 99 percentile for verbal reasoning but his writing skills were low and he does not like to do writing assignments. The foster mother, who stays at home with the children, has worked closely with his teachers and with NZE to improve his “written output” and NZE has improved the level of his work by a grade, now performing at a Grade Five level. He has said he would like to be a marine biologist, and got 86% in his last science test. [ 23 ] NZE has required consistent discipline to ensure he does his homework.

The foster parents use a combination of positive and negative consequences for all the children: homework must be done before children attend activities like Scouts, and they may lose access to “screens” (computer, television, videogames) if they don’t do homework. His behavior can be challenging because he can be oppositional, insisting on doing what he wants.

The Director has recently provided NZE with two support workers (a Children’s Foundation Child and Youth worker and a Child and Youth Mental Health Clinician) to help with his social adjustment. [ 24 ] NZE has had regular weekly supervised visits with his mother, and unsupervised weekly visits with his father that are now consistent although there were significant gaps in the past.

He and his sister visit their maternal grandmother on Vancouver Island during school holidays and NZE talks to her weekly by telephone. [ 25 ] He has said that he would like to see his father more often, and would like to see his mother every other week, with freedom to cancel a visit when he wishes. Recently he has said he doesn’t want unsupervised visits with his mother. He has also consistently said to his father, foster mother and social worker that he wants to remain with the foster family, and if that is not possible, to live with his father.

He told social worker Kirstin Taylor that his third choice would be to live anywhere but with his mother, and that if a judge ordered him to live with his mother he would duct tape himself to the wall. [ 26 ] Although NZE’s social worker’s electronic signature identifies her as being with Aboriginal Child and Family Services and he has visited with his mother at an aboriginal centre, there was no evidence about whether he has aboriginal heritage, and none of the parties mentioned his cultural heritage as a factor or concern. The Father’s Application for Custody [ 27 ] The father is 38 years old.

He has four older daughters, three of whom have special needs and are in the continuing custody of the Director. He has not seen his fourth daughter since three days after her birth. He ceased contact with his three older daughters in June 2010 (or possibly 2011) but intends to contact their social worker(

s) to resume visits. [ 28 ] Before NZE’s birth the mother told him she had miscarried, so he did not know of NZE’s existence until contacted by a social worker in 2005. He did not get involved in NZE’s life at that time. He was contacted again by a social worker in August 2009.

Then living in Kamloops, he first saw NZE in December 2009, and began visiting him about every six weeks and making weekly phone calls until August 2010. [ 29 ] At the time of the hearing in 2010 the father was living in Kamloops, working stocking shelves for Walmart, and in a common law relationship with a woman who testified in that hearing, saying she wanted NZE to live with them. During the following months, their relationship deteriorated, the woman was unwilling to move to the lower mainland, and the father was unable to work due to an injured shoulder.

In August 2010, he stopped initiating contact with NZE until after social worker Julie Fielden telephoned to prompt him to visit and call his son. Visits resumed in about January 2011, occurring about every six weeks. [ 30 ] In May 2011, the foster father contacted the father because NZE wanted his father to be with him on his birthday. When the father said he would not be able to come due to the cost, the foster father offered to pay for the father’s gas and provide a place to stay.

During a week long stay in the lower mainland, after seeing NZE’s happiness about his father being there for his birthday, the father decided to end his common law relationship and move to the lower mainland to be closer to NZE. He began weekly visits with NZE that continued through July 2011. [ 31 ] However, the father encountered upsetting problems in the summer of 2011 with a one-time friend who did not pay him for work done and stole money and belongings from him.

As a result the father was “messed up”, in a poor frame of mind, snapping at everyone, and he did not feel able to be with NZE in the way he wanted and NZE deserved. Unfortunately he ceased all contact with NZE from August through December 2011, except for a phone call in November. NZE was affected by this abandonment: he began to call the foster father “Daddy” and to act out more. In December 2011, the father straightened out his priorities and resumed contact with his son, and for the four months since then he has maintained consistent visits that NZE really enjoys.

He is slowly rebuilding NZE’s trust, and now intends to maintain positive involvement in his son’s life no matter who is granted custody. [ 32 ] The father is friends with the foster parents. He appreciates and respects what they are doing for NZE, obtains weekly briefings from the foster mother, and tries to support their child-rearing. The father testified that he has conflicting feelings: he loves his son very much and wants to live with him and to shoulder his parental responsibilities.

On the other hand, NZE has told him he prefers to stay with the foster parents and has reservations about being an only child as he would be in his father’s home, and the father believes NZE’s wishes should be honoured. [ 33 ] In the past, the father used crack cocaine and received jail sentences for spousal assaults. However, he has been clean of drugs

for almost 13 years, and there have been no recent assault convictions. Violence and drug use are not current concerns about the father’s parenting ability. [ 34 ] I conclude from the evidence that the father loves NZE and is now committed to making NZE’s welfare a top priority. However, in the 18 months since Judge Raven’s order, he has not demonstrated the emotional stability necessary to parent NZE adequately.

He has not maintained consistent contact with his son, and he concedes that he ought to have put NZE’s needs first, and ought not to have ceased contact with NZE during stressful periods in his life. [ 35 ] In addition, the father has not attended a parenting program. Nor has he made adequate plans to provide a home for NZE. He says he and the girlfriend with whom he has been living in a one bedroom apartment since September 2011 will look for a two bedroom apartment, possibly in New Westminster, but there was no evidence that he has investigated schools or childcare for the times when both adults are at work.

His girlfriend did not testify and there was almost no evidence about her relationship with NZE. I am therefore not able to assess her impact on NZE if he were to share a home with her. Given the instability in NZE’s life due to moves between his mother and foster homes, changes in foster homes, and the loss of contact with his father on two occasions, stability will be a significant factor for NZE’s emotional well-being.

The father’s current relationship is a relatively young one and I have no evidence about its long- term viability. [ 36 ] Since August 2010, there has been significant emotional instability in the father’s life. There have also been moves, changes in employment and a change in relationships. Despite the father’s good intentions, he has not been able to maintain a consistent role in NZE’s life since the last hearing.

NZE’s emotional well-being, his strong view that he wants to remain with the foster parents, and the fact that the father has not demonstrated the capacity to provide a stable home, are all significant reasons not to grant custody to the father. I conclude that it would not be in NZE’s best interest for his father to be granted custody. The Mother’s Application for Custody [ 37 ] The mother loves NZE and is deeply concerned for his welfare. She was involved in NZE’s schooling when he lived with her, accompanying him on field trips and helping him research related topics.

She exposed him to outdoor living activities and was also enthusiastically involved in his Beavers and made supportive friends of other parents involved in Scouting. [ 38 ] She is now coping well with the mental health challenges mentioned above and ADHD, as well as osteoarthritis of the knees, for which she takes painkillers as necessary. She has seen her psychiatrist, Dr. Melck, regularly and taken the medication prescribed for her since September 2009. In a letter dated April 2, 2012, Dr.

Melck states that her psychiatric conditions are stable and from a psychiatric standpoint he has no concerns about her ability to care for her son. [ 39 ] The mother has regularly attended supervised visits with NZE at Tin Harbour from May 2010 until February 2011, and at Kla- How-Eya from March 2011 until the present. Before that, there were gaps in visits because of disagreements between the mother and her social worker about the location and supervision of visits.

After the children’s removal in July 2009, the mother attended a few supervised visits at the Ministry office, but then refused to attend on the grounds that the office made NZE ill. Visits were spotty until May 2010 when the mother was able to visit three times a week at Tin Harbour or in the presence of the godfather’s wife with whom the children were residing.

She ceased visits with T after her father was granted custody in October 2010, but resumed visits after being contacted by T’s father (now NZE’s foster father) in December 2010. [ 40 ] However, since May 2010 the mother’s supervised visits with NZE have been not only consistent, but positive. The supervisors’ notes show that she has shown appropriate parenting skills, consulted NZE extensively about what he would like to do during upcoming visits, honoured his requests, and brought videos, games, books, crafts supplies and snacks to enrich the visits.

Conflicts that arose during the earlier visits over what activities they’d do during visits were resolved following an intervention by a supervisor, and the visits seemed to go more smoothly thereafter. While not actually doing homework with NZE, the mother has engaged him in educational activities, such as reading and word games, and has encouraged good manners and appropriate behavior like picking up toys. During visits she and NZE demonstrate mutual affection. [ 41 ] Unfortunately, an unsupervised visit attempted on March 29, 2012, did not go as well.

The mother and the foster mother did not have the same understanding of the arrangements for pick up and drop off. While the mother cannot be blamed for this, she is responsible for her reactions to the foster mother’s insistence on the transfer locations the social worker had given her. Instead of putting NZE’s feelings first and calmly agreeing to the foster mother’s demands, the mother engaged in a noisy argument that attracted the attention of transit employees and the involvement of transit police. During the argument NZE was tugged between the women. His mother told him he was wasting her time in her visit.

He was upset by the incident, said he didn’t want to go with his mother, and afterwards expressed unwillingness to have unsupervised visits with her. [ 42 ] Considerable evidence in this hearing focused on whether the mother or social workers Julie Fielden (involved from April 2009 until February 2011) and Kirstin Taylor (from February 2011 to the present) were responsible for poor communication between them.

I concluded from this evidence that the mother did not telephone the social workers as often as she recalls, but she did use the vehicle provided by the visit supervising agency, Kla-How-Eya, to communicate with her social worker in writing. The mother believes Ms. Taylor’s communication with her hasn’t been clear enough on details. However, the mother didn’t tell Ms. Taylor she had moved from the trailer for two months after she moved.

On the other hand, social worker Taylor delayed or did not follow through with two things she had indicated she would do: she did not arrange a meeting with NZE and his mother to discuss an issue about his not being allowed to take things back to the foster home after playing with them at visits, and she appears to have delayed in contacting Dr.

Melck about the behavioural therapy he recommended. [ 43 ] Whoever may have been responsible for the poor communication, it is clear from all the evidence that the primary focus of the mother’s communication was increasing her visits with NZE and improving them by having visits in the community, rather than obtaining support services from the Director. While more and better visits were certainly worthwhile objectives, Judge Raven found the mother had proven she could not work with social service agencies in the interests of her children, and this has not changed.

The mother has not connected with a parenting program or in-home support worker since Judge Raven’s decision in October 2010, and I do not

accept that the online secondary school courses she has taken were sufficiently time-consuming to prevent her from doing so. In addition, there is no evidence that the mother made efforts to obtain any professional help for her serious hoarding problem when funding for the behavior therapy program recommended by Dr. Melck wasn’t offered by the Director. [ 44 ] The evidence does not establish that the mother has been able to address her problem with hoarding on her own. In February 2010, she was able to clean the trailer where she was living and clear it of hoarded items.

In October 2010 her shelter allowance ceased, but her mother paid the trailer pad rent for her. By March 30, 2011, the trailer’s porch was again heaped with items. In July 2011, when social workers made a pre-arranged visit, the mother was moving things out of the trailer, but it was again filled with hoarded things. Photographs show that there were both stacks and haphazard piles of boxes, bags, and plastic containers crammed with things. Rooms also contained items including pieces of wood, other construction material, furniture, electric appliances, and empty milk and water bottles.

You could not enter the mother’s bedroom because it was crammed full of upended furniture, boxes and bags, heaped to a depth of at least five feet and blocking the door. The kitchen table and counters were also covered with mounds of things; dishes were heaped in the kitchen sink; and the bath tub was filled to a height of about four feet with clothing, bags, boxes and other things. [ 45 ] The mother testified she started looking for a new home in July 2011 because she no longer wanted to live in the trailer and it needed repairs.

She said she moved in with a friend in November 2011, discarding some things, putting some in storage, and leaving furniture in the trailer. She has remained in that shared accommodation but it is not suitable for NZE.

Thus, 34 months after NZE was removed (and 19 months after Judge Raven’s decision) the mother still has not obtained a home suitable for a child. [ 46 ] With regard to finding a suitable home, the mother said she was waiting for a letter from the social worker to assist her in obtaining a shelter allowance, but the social worker sent an email on her behalf on February 21, 2012, and wrote a letter March 26, 2012, emailed it to the mother, and left a copy in the office for her to pick up.

The mother said she couldn’t open the email but she didn’t contact the social worker to ask for the letter and did not pick it up until the trial began. She testified she had found a basement suite to rent starting May 1, 2012, but the landlords had been called away so it was not available for two or three weeks.

She also said there were a couple of other suites she could rent if NZE were returned. [ 47 ] While I concede it would be difficult to find good housing that would be affordable on the mother’s disability pension and shelter allowance, she has had 34 months to do so, and she says she now has three possibilities. This suggests it would have been possible for her to find suitable housing earlier. But finding appropriate accommodation is not the mother’s only challenge.

Given her history of hoarding, she also needs to demonstrate the ability not to hoard and to maintain a clean, habitable home. [ 48 ] Unfortunately, the mother has been unable to demonstrate that she can maintain a home without hoarding. There is no evidence about the state of her current accommodation. After she moved in November 2011, the mother refused to disclose her address to the social worker or while testifying, saying that the friend with whom she is living won’t permit her name or address to be disclosed because she doesn’t want problems.

When asked how she would avoid clutter in the future, the mother said she would keep art supplies in a cupboard, books in shelves, and she had converted 75 videos to DVDs in binders. She said she would limit the things she accumulated and go through her things and sort through anything they don’t want at least once a month. Given the severity of her problem and its recurring nature, these are not realistic or adequate solutions. [ 49 ] In spite of her love for NZE, I conclude that the mother does not have the capacity to provide a safe, healthy home for her son.

While there are bonds of love and affection between NZE and his mother, he has consistently expressed a strong view against living with her, and said he would like to reduce the frequency of their visits. I am satisfied that given his strong views, placing NZE in his mother’s custody would have negative effects on his emotional well being, and the likelihood of hoarding would pose risks to his health.

For these reasons, it would not be in NZE’s best interests for his mother to be granted custody. [ 50 ] The parents have never communicated with each other about NZE, and they do not have complementary strengths that would allow them to compensate for each other’s weaknesses. A joint custody order would therefore not provide adequately for his care and would not be in his best interests. The Director’s Application [ 51 ] I conclude that there is no significant likelihood the circumstances that led to NZE’s removal will improve within a reasonable time, or that his mother will be able to meet his needs.

She has made significant progress in stabilizing her mental health by maintaining contact with Dr. Melck and taking her prescribed medication, and since May 2010 she has had consistent, largely positive supervised visits with NZE. However, she has not taken advantage of support services offered by the Director, she has been unable to obtain a suitable home for a child, and she has not adequately addressed her hoarding behaviour. The mother would require long term, significant support to maintain a healthy residence for a child, but she has not been able to accept such help.

Even with stable mental health she has been unable to obtain a suitable home. [ 52 ] Her inability to establish a suitable home and address her hoarding in a meaningful way creates risks to NZE’s safety and well being. Moreover, the mother has not had a positive unsupervised visit because she was unable to deal calmly with the foster mother’s insistence on a particular transfer location.

Given the fact that 34 months have passed since NZE’s removal without progress on housing and hoarding, I see no significant likelihood of improvement within a reasonable time. [ 53 ] The Director’s plan of care is for NZE to remain with his foster parents, his half sister’s father and his partner, until he is an adult. They are willing to have him. They have maintained and encouraged NZE’s ties with both his parents and his maternal grandmother. NZE appears to be doing well with the structured routines, consistent discipline, and attention to schoolwork provided in this foster home.

The reservations he expressed to his father about being an only child suggest that he is not uncomfortable having six other children including his half sister in the home. [ 54 ] NZE turns eleven on May 22 and he has spent a total of four years in foster care. He has strongly and consistently expressed his views about where he would like to live, telling three different people that he wants to remain with his foster family and does not want to live with his mother.

A family is the preferred environment for the care and upbringing of children, but for these reasons, as well as the reasons cited for not granting the parents custody under the FRA, I conclude that it is in NZE’s best interests to make a continuing

custody order. An extension of the existing temporary custody order for a last six months would not be in his best interests because there is no reasonable prospect that either parent could make sufficient changes in that time to provide a safe and healthy home for NZE. [ 55 ] In order to preserve his ties with family, I will order that both parents and his maternal grandmother have reasonable access to NZE at the discretion of the Director, supervised at the discretion of the Director.

The Director’s discretion is required to ensure that NZE’s wishes are considered, and to avoid conflict between the mother and foster mother. [ 56 ] I particularly want to thank Ms. O’Donnell for her clear and thorough written submissions. I believe she said everything that could be said in support of her client’s position. Orders [ 57 ] I dismiss the FRA applications of JEH and EDME for custody of NZE. Under s. 49(5) of the CFCSA, I order that NZE be placed in the continuing custody of the Director.

Under s. 56 I order that JEH and EDME and PR have reasonable access to NZE at the discretion of the Director, supervised at the discretion of the Director. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia