DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2016 BCPC 311

Citation: Director v. L.W.C., B.C., and K.F. Date: 20160823 2016 BCPC 311 File No: F31877 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 CHILDREN: T.C. , born [omitted for publication] N.C., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L.W.C. RESPONDENT AND: B.C. RESPONDENT File No: F34845 Registry: Surrey AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011, c. 25 BETWEEN: K.F. APPLICANT

AND: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RESPONDENT AND: L.W.C. RESPONDENT AND: B.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Director: D.R. Tate Counsel for the Respondent L.W.C.: S. Foo Counsel for the Respondent B.C.: S. Sim Appearing on her own behalf: K.F. Place of Hearing: Surrey , B.C.

Date of Hearing: November 2, 3, 9, 10 and 12, 2015; January 14 and 15, 2016 Date of Judgment: August 23, 2016 Introduction [ 1 ] I have two applications before me affecting the custody of two young children, T.C., born [omitted for publication], (“T.C.”) and his sister, N.C., born [omitted for publication] (“N.C.”). I will refer to T.C. and N.C. collectively as the “Younger Children.” [ 2 ] The first application is by the Director of Child, Family and Community Service (the “Director”) for a continuing custody order (the “CCO”) under ss. 49(9) and (10) of the Child, Family and Community Service Act, [ RSBC 1996]

Chapter 46 (the “ CFCSA ”) . The Director also asks that a finding be made under s. 40(1) of the CFCSA that the Younger Children were in need of protection at the time of their respective removal. [ 3 ] The second application is by K.F., the Younger Children’s paternal grandmother (the “Grandmother”), to be appointed a guardian of the Younger Children under s. 51 of the Family Law Act, [ SBC 2011]

Chapter 25 (the “ FLA ”). L.W.C., the Younger Children’s biological father (the “Father”) responds in his Reply to the Grandmother’s application that both he and the Grandmother should have joint guardianship of the Younger Children. [ 4 ] The Father opposes the Director’s application for the CCO and the Director opposes the Grandmother’s application for guardianship.

B.C., the Younger Children’s biological mother (the “Mother”) did not attend the hearing of these applications, but the Director’s counsel submits and the evidence also indicates that the Mother supports the Director’s application and opposes the Grandmother’s application. The Mother’s counsel attended on the first day of the hearing and informed the court that she has withdrawn from this case and asked to be excused, and she was excused. [ 5 ] Pursuant to an earlier order of this court, the two applications were heard together. The parties made a passionate plea over seven days in support of their positions.

I will now address the difficult task of deciding the Younger Children’s continuing custody. Issues [ 6 ] The issues to be decided in this case are as follows: I. Did the Mother breach the Supervision Order and were the Younger Children in need of protection at the time of their respective removal? II. For the purposes of s. 49(10)(b), who is the parent apparently entitled to custody of the Younger Children?

III. Should the Grandmother be appointed a guardian of the Younger Children? IV. Should the Younger Children be placed in the continuing custody of the Director or returned to the parent apparently entitled to custody? Background [ 7 ] This family has had a long history with the Ministry of Children and Family Development (the “MCFD”). [ 8 ] The Mother is 24 years of age. She has had a long struggle with alcohol and drug abuse, and has a lengthy criminal record dating back to her youth. [ 9 ] The Father is 26 years of age. He too has had a history of alcohol and drug abuse.

He has had behavioural challenges stemming from his childhood and progressing into some criminal activities in his adolescence and adulthood. As a child and youth, he too was in the Director’s care. [ 10 ] The Mother and the Father (collectively, the “Parents”) have four children together: M.L.C. born [omitted for publication] (“M.C.”), K.M.C. born [omitted for publication] (“K.C.”), T.C. and N.C.

I will refer to M.C. and K.C. collectively as the “Older Children” and all four children collectively as the “Children.” The Children are young, now aged 4, 5, 6 and 7. [ 11 ] The Older Children were removed from their Mother and placed in the Director’s care: M.C. on [omitted for publication], 2009, when she was a little over two months old; and K.C. on [omitted for publication], 2010, when she was two days old.

Both girls have now been adopted out. [ 12 ] The Younger Children came into the Director’s care under a Voluntary Care Agreement the Mother signed on [omitted for publication], 2012 (when T.C. was approaching a year old and N.C. was only a little over a month old) for a three-month period ending [omitted for publication], 2012. [ 13 ] On January 11, 2013, T.C. was removed under s. 42 (enforcement of supervision order) and N.C. under s. 30 (removal of child), and both were placed together in a foster home in Langley, British Columbia. [ 14 ] The Younger Children continue to remain in the Director’s care in the same foster home.

The so-called “last chance order” under s. 49(7)(c) (and s. 60 in this case, with the consent of the Mother) for the Younger Children was granted on March 6, 2014, with the Director applying for the CCO under s. 49(9) on June 4, 2014. This latter application is what is before me now. [ 15 ] The following table shows the protective orders that were made with respect to the Younger Children: Child’s Name Date of Hearing Order Made T.C.

January 19, 2012 Supervision Order, ss. 41(2.1) & 60 July 26, 2012 Supervision Order Extension, ss. 44(3)(a) & 60 January 13, 2013 Removal Order, s. 42(1) January 31, 2013 Interim Order, s. 42.1(6)(

a) April 4, 2013 Temporary Custody Order, ss. 42.2(4)(b) & 60 March 6, 2014 Temporary Custody Order, ss. 49(7)(c) & 60 (the “ last chance order ”) N.C. January 13, 2013 Removal Order, s. 30(1)(

b) January 31, 2013 Interim Order, s. 35(2)(

a) April 4, 2013 Temporary Custody Order, ss. 41(1)(c) & 60 March 6, 2014 Temporary Custody Order, ss. 49(7)(c) & 60 (the “ last chance order ”) [ 16 ] Throughout this period, the Director was unable to contact the Father and the Father made no attempts to contact the MCFD.

The last contact with the Father was in May 2012, when he last visited with the Older Children. [ 17 ] The Mother’s extended family relevant to the discussion here are her mother, B.C.1, and her sister, N.C. (the “Maternal Aunt”). [ 18 ] The Father’s extended family relevant to the discussion here are his father, I.C. (“I.C.”), and his sister, M.C. (“M.C.”). [ 19 ] I will now turn to the issues in this case. I have set out all of the statutory provisions referenced in my discussion in

Schedule A to these reasons. Analysis I. Did the Mother breach the Supervision Order and were the Younger Children in need of protection at the time of their respective removal? [ 20 ] The Director removed T.C. on January 11, 2013 under s. 42(1) of the CFCSA on the basis that the Director had reasonable grounds to believe that the Mother had not complied with a number of terms and conditions (at least conditions 1 to 3) of the supervision order made on January 19, 2012, and extended on July 26, 2012 for a period expiring January 19, 2013 (the “Supervision Order”), and a

term (term 11) of that Supervision Order permitted the Director to remove T.C. if the Mother failed to comply with any term or condition. [ 21 ] The Director also removed N.C. on January 11, 2013 under s. 30 and on the circumstances described in ss. 13(1) (

d) and (

h) of the CFCSA on the basis that the Director had reasonable grounds to believe that N.C. needed protection and that no other less disruptive measure was available to adequately protect N.C.

The Director believed that if the Younger Children were not removed, they would likely have been harmed because of the Mother’s neglect or her inability to care for them or make adequate provision for their care. [ 22 ] The Form A Report to Court, filed by the Director, describes the circumstances of the Younger Children’s removal, including the following statements: • The [MCFD] has been involved with this family since April 2009 due to concerns of alcohol and drug misuse by the [M]other and [F]ather. • It was reported to MCFD that [the Father] was involved in the drug trade and that he was the one providing [the Mother] with alcohol. • On September 20, 2012, [the Mother] came to the MCFD office unannounced with her two younger children, [T.C. and N.C.].

She admitted to relapsing into alcohol use. She stated that she was unable to care for her children and needed to focus on her recovery. She agreed to sign a voluntary care agreement... During the course of the voluntary care agreement, [the Mother] did not engage in addiction services or remain in contact with MCFD or her children. • On January 7, 2013 [the Mother] called and … reported that she had relapsed into cocaine and alcohol use. She is prepared to attend a drug and alcohol residential treatment program and develop a treatment plan.

She has been evicted from her home and is temporarily residing with family members. [ 23 ] Two social workers employed by the Director who had worked with this family over the years testified on behalf of the Director. I found both of them to be credible witnesses. I have no concerns with the trustworthiness of their evidence. [ 24 ] The evidence indicates that the Parents did not live together as a family in one household; they frequented each other’s separate residences off and on. They were caught up in their own negative lifestyles, struggling to care for themselves, let alone their Children.

The substance abuse appears to have been the primary culprit in their lives. There were incidences of domestic violence, each accusing the other as the abuser. Both have criminal records, including the Father having been charged in August, 2012, and convicted and sentenced in March, 2015 for possession of a controlled drug/substance for the purpose of trafficking. They had no stable homes and at times were homeless. The Mother was transient with no fixed address, and periodically she stayed with her family and friends and at recovery homes.

The Father was also transient and periodically he stayed with his former girlfriends or with his family and friends, essentially “couch-surfing.” [ 25 ] For the most part, the Father was an absentee father to the Children. It does not appear that he provided any financial or other support to them.

I will say more about his absence in my discussion below. [ 26 ] With respect to any less disruptive measures available, the Form A states that “[a] voluntary care agreement was signed but [the Mother] did not follow through with services or engage with MCFD to address the child protection concerns.” [ 27 ] Counsel for the Father argues that with respect to any less disruptive measures, the Director failed in his duty to seek out other family members before placing the Younger Children in a foster home.

The social worker’s evidence is that the Maternal Aunt at one point applied for guardianship of the Older Children under the FLA , but later withdrew her application as she was facing challenges with her own family. The maternal grandmother also has substance misuse issues and is known to the MCFD. The Mother’s paternal aunt at one point initiated a call to the MCFD, but later withdrew any interest. The MCFD did their routine checks through their Family Find team when they placed the Older Children.

On the Father’s side of the family, because of the Father’s family’s long history with the MCFD, including the Grandmother’s highly adversarial interactions with the MCFD, and the MCFD’s voluminous files on I.C. and M.C. and I.C.’s other daughter S.D., no immediate members of the Father’s family were readily considered as suitable placements.

The social worker, however, said that if any member of the Younger Children’s extended family had contacted the MCFD and expressed interest in caring for them, the MCFD would have assessed their suitability, but none of them contacted the MCFD. [ 28 ] I am satisfied that the Director made the appropriate considerations, given the history and circumstances of this family. Based on the evidence before me, I find as follows: (

a) with the Mother calling into the MCFD on January 7, 2013 (before the expiry of the Supervision Order on January 19, 2013) and reporting that she had relapsed into cocaine and alcohol use and had been evicted from her home and is temporarily residing with family members, she clearly breached the terms of the Supervision Order, permitting the Director to remove T.C. on the basis of her failure to comply; (

b) with the Mother being in breach of the Supervision Order with respect to T.C., and admitting that she was unable to care for the Younger Children and not making adequate provision for their care, the Younger Children were in need of protection at the time of their removal on January 11, 2013; and (

c) if the Younger Children had not been removed, they would likely have been physically harmed because of the Mother’s neglect or her inability to care for them or make adequate provision for their care. [ 29 ] The second and main aspect of the Director’s application is whether the Younger Children should be placed in the continuing custody of the Director or returned to the parent apparently entitled to custody. So, the initial question is, who is the “parent apparently entitled to custody” in this case? I will first address this question. II. For purposes of s. 49(10)(b), who is the parent apparently entitled to custody?

[ 30 ] The phrase “parent apparently entitled to custody” is not defined in the CFCSA . [ 31 ] However, the term “parent” is defined in s. 1 of the CFCSA , and it includes a person to whom guardianship or custody of a child has been granted by a court and a person with whom a child resides and who stands in place of the child’s parent or guardian, but does not include a caregiver, prospective adoptive parent or director. The term “custody” in s. 1 includes care and guardianship of a child. The term “guardianship” in s. 1 includes all the rights, duties and responsibilities of a parent. [ 32 ]

Section 39 of the FLA also provides some guidance as to who is a parent. Section 39(1) states that while a child’s parents are living together and after they separate, each of them is the child’s guardian. However, in this case, the evidence indicates that the Parents never lived together, but they only got together off and on. Sections 39(3)(

b) and (

c) go on to state that a parent who has never resided with his or her child is not the child’s guardian unless the parent and all of the child’s guardians make an agreement providing that the parent is also a guardian or the parent regularly cares for the child. [ 33 ] In this case, there is no dispute that the Mother is a parent and guardian of the Younger Children. At this stage, the Grandmother is clearly not a guardian.

If I grant her application to be appointed a guardian, then she will be a parent apparently entitled to custody. [ 34 ] The question remains as to whether the Father is a parent apparently entitled to custody. The Director submits that the Father did not give evidence to establish that he is a guardian within the meaning of s. 39 of the FLA , and that the only evidence before this court is that of one of the social workers stating that the Father was found with the Mother drinking alcohol which is what led the Mother to seek the Voluntary Care Agreement for the Younger Children.

The evidence is not clear as to what extent the Father cared for the Younger Children when the Parents did spend time together. I am unable to conclude that the Father “regularly” cared for the Younger Children as he was mostly absent from their lives. He has not applied to be appointed a guardian. [ 35 ] The Director does not vigorously oppose the Father being considered a parent apparently entitled to custody because he says there is more than sufficient evidence to support the granting of the CCO to the Director.

Since the parties’ submissions are made on the premise that the Father could be considered a parent apparently entitled to custody, I will analyse the CCO issue in that context. [ 36 ] I will first address whether the Grandmother should be appointed a guardian of the Younger Children. III. Should the Grandmother be appointed a guardian of the Younger Children? [ 37 ]

Section 51 of the FLA provides for the appointment of a person as a guardian, provided the requirements set out in that

section are followed. According to s. 51(2), the Grandmother, as the applicant, must comply with Rule 18.1 of the Provincial Court (Family) Rules, B.C. Reg. 417/98, and provide evidence to the court that it is in the best interests of the Younger Children, in accordance with s. 37 of the FLA , for her to be appointed their guardian. [ 38 ] At the beginning of this hearing, the Grandmother indicated that she was in the process of compiling the documentation required under Rule 18.1 . However, it is not clear whether she ultimately managed to file the Form 34 together with all of the required attachments.

With respect to three of the attachments required, the MCFD records check, Protection Order Registry protection order records check and criminal records check, the evidence establishes that the Grandmother has a lengthy history with MCFD (I will say more about this later) but she has no criminal record. There is no evidence as to any protection order against her. [ 39 ] The Grandmother was not represented by legal counsel at the hearing. She did not particularly go through the factors in s. 37(2) of the FLA in any order. She told her story in her own way. I.C. gave evidence in support of her application.

The Grandmother indicated that her daughter, M.C., will also give evidence in support of her application, but M.C. never showed up in court. I will now summarize the evidence regarding the guardianship issue. [ 40 ] The Grandmother is 61 years of age. She has had a tumultuous life. She experienced sexual and physical abuse in her childhood and violence in her domestic relationships. She was legally married twice. Her second husband was an alcoholic. She met I.C. in 1979. I.C. is 71 years of age. They lived together from 1989 and separated in 1996. They had two children together, the Father and M.C.

M.C. is 25 years of age. I.C. has five other children with four other women. In total he has seven children with five women. [ 41 ] The Grandmother and I.C. had a turbulent relationship. They both engaged in substance misuse. There were incidences of domestic violence between them in front of their children. Neither of them had stable employment or housing. There were allegations of infidelity on both their parts. I.C. admitted that in his earlier days, he did not treat women well. [ 42 ] In 1992, the Grandmother checked herself into a hospital for assistance with her mental health concerns.

At that time, she placed her two young children (about one and two years of age) in the Director’s care. She also had struggles with employment and housing. She was constantly on the move in the interior and northern parts of British Columbia and in Alberta (including Fort St. John, Wells, Quesnel, Kamloops, Williams Lake, and Malakwa). She said she was trying hard to earn sufficient income to provide for her and her children, although she was on income assistance from time to time. During these moves, her children were shuttled back and forth between her locations and I.C.’s in the Lower Mainland.

Frequently, the children were left to fend for themselves. The Father had trouble coping in school and he acted out and was alleged to be the aggressor. It does not appear that the Grandmother was able to resolve the situation in her son’s favour as he was expelled from the school. M.C., at age 13, was left on her own on numerous occasions with her pets (two dogs, cats and 48 mice), phone, internet, and microwaveable food, with a neighbour looking in on her while the Grandmother was working in remote camps.

The Grandmother says she took every precaution she could when leaving M.C. on her own. [ 43 ] However, the Grandmother admits that both children acted out: from time to time they did not attend school; the Father would have unruly parties with 50 or more kids; M.C. was depressed and she engaged in self-mutilation; both of them did not respect their mother’s authority; and at times they said they hated her. [ 44 ] There are many other examples of the Grandmother’s challenges with her children. Either the children would leave on their

own accord because they did not like living with their mother, or if she could not handle them, she would send them to I.C., whom she said was a violent and abusive man, or to other people who were no better caregivers. For example, she allowed the Father to live in his 14-year old girlfriend’s house when he was only 15 years old. During that period, the Father fathered a child with his 14-year old girlfriend, when he himself was a child. M.C. for a while was residing with her half-sister and with I.C.’s other ex-girlfriends and strangers.

It appears that M.C. was also sexually abused when she was about three and 11 years old, and at least in three incidents by acquaintances or friends of I.C.’s family when they were visiting I.C.’s home. [ 45 ] Dr. L.W.

Krywaniuk, after conducting a parenting capacity assessment of the Grandmother and I.C. in August 2001, concludes in his report that “both parents are relatively marginal in terms of their ability to provide a stable lifestyle for their children.” The report also noted that “both parents are somewhat less than ideal in terms of their skills, background, attitudes and behaviours.” [ 46 ] There is ample evidence to conclude that while the Grandmother loved her children, she certainly did not provide the stable, loving and nurturing environment necessary to protect their physical, psychological and emotional safety, security and well-being.

The decisions she made and the judgments she exercised have had a negative impact on their lives. Neither of her children has completed high school. Her son became a father at age 15 and daughter became a mother at age 17 from a relationship with a 38-year old man. At ages 16 and 17, respectively, her children voluntarily sought the Director’s care and entered into Youth Agreements as they were homeless and their parents were unable to care for them.

The MCFD has been a part of both the Father’s and M.C.’s lives, and now their children’s lives as well. [ 47 ] So, the Director submits that since the Grandmother was not able to provide her own children with the stability, safety, quality of care, parental guidance and education they needed, and she routinely abdicated her parental responsibility to others who were unsuitable caregivers to her children, it is not in the best interests of the Younger Children to have her appointed as their guardian. [ 48 ] The Director points out that what is most disturbing is that while the Grandmother acknowledges that there have been significant problems in her children’s lives, she seems to take absolutely no responsibility for them and instead blames others.

Dr. Krywaniuk also noted this tendency about the Grandmother in his report. He says “[s]he portrayed herself as having made specific decisions based on good logic or in reaction to particular situations. It appeared to me that she displaced responsibility away from herself more than was actually warranted and that much of her reasoning was geared towards self-justification or self-enhancement.” [ 49 ] The Grandmother admits that she has been described as “crazy” by the Mother and the Father’s girlfriend, C.N., with whom he has a son. [ 50 ] Only seven years have passed since the Father became an adult.

So, what has improved in the Grandmother’s situation to suggest that she can be a fit guardian for the Younger Children? [ 51 ] Not much, says the Director. In fact, the Director points out that the only substantive contact the Grandmother has had with the Director regarding the Children was in June, 2012. The next contact was more than two years later in September, 2014 when she was calling the MCFD for assistance in keeping the Mother from contacting the Father, rather than asking about the welfare of the Children.

She did not see the Younger Children from September, 2012 to April, 2015, and she never asked for any visits with them until December, 2014. Also, while they were in care, she never enquired about their well-being. [ 52 ] The Director says it is important to note that the Grandmother did not come forward on her own accord to parent the Younger Children, but she is simply supporting the Father who wants to parent them.

She admitted that she may act as the parent initially, but that it is the Father who will be the primary parent and caregiver in due course as they are his children. [ 53 ] Now, before I get into the Grandmother’s submissions regarding her ability to parent the Younger Children, I will summarize the foster mother R.B.’s and the social workers’ evidence about the Younger Children’s needs. [ 54 ] The foster mother and her husband have been fostering the Younger Children since September, 2012 (since T.C. was about one year old and N.C. was about one month old). The foster parents have six children of their own.

The foster mother is a registered nurse and an experienced caregiver. She and her husband have been foster parents for about eight years and have fostered about 15 to 20 children. In spite of their experience, the foster parents require the assistance of their daughter, K., who is currently finishing her nursing program, and other members of their family to help out in caring for the Younger Children as they can be very demanding, particularly T.C. with his complex behavioural issues. The Younger Children require constant attention and monitoring. [ 55 ] T.C. requires a lot of attention.

He suffers from anxiety and has great difficulty transitioning from one activity to another. A lot of planning and forethought is required to facilitate his activities every day. As the foster mother put it, she has to “make a game out of everything.” If he does not get his way, he can get aggressive. He is known to hit teachers and other children. He was asked to leave his day-care due to his disruptive behaviour. He is also a flight risk as he tends to dart out if he wants to escape a situation.

The foster mother will not take him into the community, for example, into a grocery store, without having someone else to help manage T.C., as he is a flight risk and can have serious meltdowns. Because of his behavioural issues, he had a one-on-one caregiver at preschool and has been referred to Sunny Hill Health Centre for Children (which is a centre for behavioural problem assessment – complex behavioural development issues) for further assessment for his anxiety and transitional issues.

Although he is meeting his milestones in terms of his fine motor skills, his emotional and other skills are not at expected levels. [ 56 ] The foster mother says N.C. is very attached to her. N.C. is an energetic, fun and interactive child. She likes to climb and is more mobile than T.C. T.C. and N.C. are very close to each other. Because of T.C.’s behaviour, N.C. also acts out. She has trouble sleeping. She does not like to be told “no” and she can have temper tantrums lasting 30 to 45 minutes of straight screaming.

Very simple things can trigger her temper tantrums, and they can happen two to three times a week or sometimes more than once a day. She requires a lot of attention as well. [ 57 ] The foster sister, K., helps out a lot in handling both the Younger Children, including with the visits with the Father and Grandmother. The foster mother says, her family as a whole, foster the Younger Children as they can be a handful.

[ 58 ] The Director says in light of her past and current circumstances, the Grandmother is not a suitable guardian for the Younger Children, particularly because of T.C.’s complex behavioural issues. [ 59 ] A lot has been said about the Grandmother’s past. I will summarize below the evidence regarding the Grandmother’s current circumstances and her submissions regarding her ability to parent the Younger Children: (

a) Housing: [ 60 ] The Grandmother has been caring for the Father ever since he had his stroke in September, 2014. He was in a wheelchair before, but now only uses a cane for support. His mobility is restricted on one side of his body. [ 61 ] At the time of the hearing, the Grandmother and the Father were living in a three bedroom basement suite in Langley, British Columbia. There is a great open space behind their house with no fence. There are four vehicles parked on the property with no current licence plates. The property is slated for redevelopment.

Inside the suite, the hot water tank and the furnace are in open view with no enclosure. Of the three bedrooms, the Grandmother uses one, the Father uses the second, and a boarder, named M.E. (known as “[omitted for publication]”), uses the third. They all share one bathroom. [ 62 ] The Grandmother says since the property is slated for redevelopment, she is looking to find alternate accommodation.

In the meantime, she says, she can accommodate the Younger Children by making use of the couch they have and also putting up a barrier around the mechanical equipment that is currently exposed to provide some safety measure. [ 63 ] The concern with M.E. is that he is a paranoid schizophrenic. He has had a few encounters with police. There were allegations of him having a gun and wanting to kill himself and others, including his mother. He was apprehended under s. 28 of the Mental Health Act , [ RSBC 1996]

Chapter 288 . However, the Grandmother says M.E. would not hurt anyone. She says she took him on as a boarder to help out with the rent and to cook for the Father so that she can have some time to herself. She says, if necessary, he can move back with his mother in Mission. (

b) Ability to exercise parenting responsibilities: [ 64 ] The Grandmother says that given her age, although she will be there to help the Father parent the Younger Children initially, it is the Father who is ultimately responsible for parenting them. She says both I.C. and M.C. are willing to help her and the Father with the parenting responsibilities. [ 65 ] With respect to caring for T.C., who has complex behavioural issues, the Grandmother says she has the necessary skills to manage him as she has managed her own children who had behavioural issues all their lives. (

c) Financial support: [ 66 ] The Grandmother acknowledges that she has limited financial means. She was on income assistance until December, 2015, and she will get Canada Pension Plan benefits of about $200 per month from January, 2016 as she will have turned 60 years of age by then. She is counting on the Father’s disability income and potential child tax benefits that he may receive if the Younger Children were returned to him. She is also hopeful that the Father will work with WorkBC and find suitable employment.

She is willing to take on part-time employment as a driver or florist as she has some experience in these areas. She is also willing to take on children’s sleepovers to earn some extra money. [ 67 ] While it is commendable that the Grandmother is willing to do whatever she can to help the Father parent the Younger Children, there are still many lingering concerns that weigh heavily against the factors I must consider in determining whether or not it is in the best interests of the Younger Children to appoint her as their guardian. My concerns with respect to the s. 37(2) factors include the following: (

a) The Younger Children’s health and emotional well-being: [ 68 ] This factor encompasses many aspects including the Younger Children’s physical, psychological and emotional safety and security. [ 69 ] The first challenge the Grandmother has is providing stable and safe housing. Her current living arrangement is certainly not suitable. First of all, it does not have sufficient space and it also poses a safety concern for the Younger Children with the exposed mechanical equipment. She claims she can put up a barrier.

However, whether that is practical is another question: her landlord would have to consent and she would have to have the financial means to do the work. [ 70 ] Another safety concern is if M.E. were to continue to reside with the Grandmother and the Father. The Grandmother firmly believes that M.E. will not hurt anyone. He helps out with the rent and at times cooks for the Father, providing some relief to the Grandmother.

Therefore, one cannot be certain that the Grandmother will not continue to board him, although she says she will not if it is necessary. [ 71 ] She testified that she would not leave the Younger Children alone with the Father as he will not be able to manage them on his own due to his current disability. There is no medical evidence as to the extent or timing of his recoverability. [ 72 ] She claims I.C. will help her out, but she also says “I.C. can help as long as he is supervised.” The question is who will supervise I.C.?

He is also 71 years of age. [ 73 ] Other than I.C., whom she does not trust and wants to keep at a distance, she does not have much help. Although she says M.C. would gladly babysit the Younger Children and take them in on the weekends, the evidence indicates that M.C. has her own issues with her own four children, and the MCFD is involved in their lives as well. As I said earlier, M.C. was scheduled to give evidence at this

hearing, but she did not show up because of child care reasons. [ 74 ] Another major concern is how the Grandmother will be able to manage T.C.’s behavioural issues and take him to all the medical appointments and assessments he requires, in addition to caring for the Father due to his disability. Both of the Younger Children require a lot of attention, and even the foster mother, who is a nurse and an experienced caregiver, finds them exhausting and requires the support of her whole family to care for the Younger Children. [ 75 ] Based on the evidence, I am not satisfied that the Grandmother can meet the overall health and emotional well-being of the Younger Children. (

b) Younger Children’s views: [ 76 ] The Younger Children are too young to express any views. (

c) Nature and strength of the relationships between the Younger Children and significant persons in their lives: [ 77 ] Other than the recent visits with the Grandmother and the Father, the Younger Children have no strong relationship or bond with them. [ 78 ] The evidence indicates that T.C. had a strong attachment to the Mother in the first few months of his life, but both the Younger Children have been in foster care since T.C. was about a year old and N.C. was about a month old, and they have a strong attachment to the foster mother and the foster sister, as indicated by the visit notes. (

d) The history of the Younger Children’s care: [ 79 ] Other than the Mother, only the foster parents have a history of caring for the Younger Children. (

e) The Younger Children’s need for stability, given the their age and stage of development: [ 80 ] One of the major behavioural challenges that T.C. faces is his ability to transition well. He has been assessed to be lagging in his emotional and psychological skills.

He is undergoing further assessments and requires a lot of hands-on assistance. [ 81 ] The Director says that if the past is any indication, the Grandmother is ill-equipped to provide any stability to the Younger Children as she has repeatedly failed her own children of any stability due to her transient lifestyle. [ 82 ] I agree that the evidence does not support the Grandmother as being able to provide any stability for the Younger Children. She has always been, and still is, on the move. (

f) The ability of the Grandmother to exercise her responsibilities as a guardian: [ 83 ] In my mind, this is the most concerning factor regarding the Grandmother. The evidence is replete with examples of the Grandmother exercising poor judgment in parenting her own children, which have had negative consequences for herself and her children.

And yet, she seems to lack any insight into the fact that she made poor judgments and they have had a negative impact on her children. [ 84 ] The Director also emphasizes that her children have not turned out well under her care, and that that itself is noteworthy for not placing the Younger Children under her care. [ 85 ] While I appreciate the Grandmother’s willingness to take any parenting program required of her, the issue is not so much that she lacks the practical parenting skills (which she may be able to improve through training), but it is more the lack of her ability to exercise good judgment in the best interests of the Younger Children (that cannot simply be acquired at this late stage in her life).

While I do not want to discount her for her past poor judgments, a few very simple current examples demonstrate that she still lacks judgment in seeing what is, and what is not, in the best interests of the Younger Children. [ 86 ] For example, the Grandmother admits to continued marihuana use, particularly in stressful situations. She admitted to smoking marihuana during these proceedings as they are stressful for her. She says her marihuana use has been “responsible but others may disagree.” She says the Father has a green card to purchase marihuana; I assume for his medical condition.

Although it is not clear, the inference is that he too will continue his marihuana use. What she did not say is that she and the Father will not use any substance in the presence of the Younger Children. It is certainly not in the Younger Children’s best interests to have their guardian or parent smoking marihuana in their presence. [ 87 ] Another example is the use of inappropriate language. The evidence indicates that the Grandmother verbally abused her children.

The Grandmother admits to swearing in front of her children, but explains that that was her “strange way of protecting [her] children so that they would take the power out of the words.” The evidence indicates that the Father also swears frequently. The notes of one visit with the Younger Children indicate the Father using the “f” word in the presence of the Younger Children. The Grandmother justifies the Father’s use of the “f” word by saying that because of the stroke, the Father has difficulty with speech, and he has trouble saying the right words.

She says if he cannot find a word, he would say the “f” word, especially when he gets excited about something. Regardless of the reasons, it is certainly not in the Younger Children’s best interests to have their guardian or parent swearing around them. [ 88 ] A further example is that she says she can make money by holding children’s sleepovers. She says she does not mind having a lot of kids at one time because they take care of each other. This is a very concerning idea on many fronts.

First of all, her current living arrangement cannot accommodate any sleepovers of other children, let alone the Younger Children. The Grandmother seems to have no concept of how this may impact the well-being of the Younger Children, particularly T.C., with his behavioural issues.

[ 89 ] The Grandmother does not seem to appreciate that these types of behaviours may be harmful to the Younger Children. Therefore, I am not satisfied that the Grandmother has the ability to exercise her responsibilities as a guardian in the best interests of the Younger Children. (g) & (

h) Impact of any family violence: [ 90 ] The Grandmother has been the subject of family violence in the past by I.C. She presents him as a support for her, while at the same time expressing reservations about him and saying that he needs to be supervised. From I.C.’s evidence that he no longer treats women badly, I can only assume that the likelihood of any family violence between the Grandmother and I.C. will be next to nil. (

i) Repercussions of requiring co-operation amongst guardians: [ 91 ] Since the Mother is still a guardian of the Younger Children, and she and the Grandmother do not get along, and the Mother is opposed to the Grandmother having guardianship, it is highly likely that requiring the Mother and the Grandmother, if she were appointed a guardian, to co-operate with each other could cause or increase any risks to the safety, security or well-being of the Younger Children. (

j) Any civil or criminal proceeding relevant to the Younger Children’s safety, security or well-being: [ 92 ] This is not an issue at this point. [ 93 ] On the whole, the Grandmother has not established that it is in the best interests of the Younger Children for her to be appointed their guardian. [ 94 ] While the Grandmother may mean well, and may have interacted well with the Younger Children during her visits with them in a short period and in a structured and supervised environment, based on all of the evidence before me, I find that it is not in the best interests of the Younger Children to appoint the Grandmother as their guardian. [ 95 ] Therefore, I dismiss the Grandmother’s application for guardianship.

IV. Should the Younger Children be placed in the continuing custody of the Director or returned to the parent apparently entitled to custody? [ 96 ] The Director has applied under s. 49(9) for a CCO under s. 49(10) of the CFCSA . However, counsel for the Father argues that this court should consider making a further “last chance” order to give the Father more time. [ 97 ] There is a structure to the CFCSA ’s scheme, and various sections in the CFCSA are prescriptive in terms of the orders that the court can and cannot make. Section 49(10) is one of those prescriptive sections.

It states that if the Director applies under s. 49(9), the court, after considering the factors in s. 49(6), must make one of the two orders specified in s. 49(10) . That is, that the child be placed in the continuing custody of the director or be returned to the parent apparently entitled to custody. There is no ambiguity in the wording of s. 49(10) . There is no room for any alternative

interpretation, and this court being a statutory court and lacking any parens patriae jurisdiction can make no other orders under s. 49(10). [ 98 ] However, in making any order under the CFCSA , the court must be guided by the principles set out in s. 2 and the factors relating to the best interests of the child set out in s. 4 of the CFCSA . The safety and well-being of children are the paramount considerations under the CFCSA . [ 99 ] Keeping the guiding principles in s. 2 and the factors in s. 4 in mind, I will now consider the three factors in s. 49(6) before making an order under s. 49(10) . (

a) The past conduct of the parent towards any child who is or was in the parent’s care: [ 100 ] The evidence indicates that the Father was mostly absent from the Children’s lives. Only recently he has made efforts to visit with them. [ 101 ] In spite of the fact that all four Children were in the Director’s care, the Father did not satisfactorily engage with the MCFD. Throughout the legal proceedings relating to his Children, the social workers have had difficulty locating him. They had to get court orders dispensing with service or for substitutional service.

When he was contacted one time by phone on June 18, 2014 with respect to serving the CCO application documents, the Father responded that “he did not want to play any more head games” and refused to provide his address for service and hung up the phone on the social worker. It appears that he was residing in the Surrey area at that time, but he never made any enquiries regarding the welfare of any of the Children. [ 102 ] Regarding the Older Children, the last proceeding he attended was a case conference on June 9, 2011.

His last visit with the Older Children was in May, 2012 and he has not seen them since that date. He did not attend at the hearing of, or enquire about, the continuing care order that was made on March 4, 2013.

As I said, the Older Children have now been adopted out. [ 103 ] Regarding the Younger Children, the Director’s counsel points out that there were 13 court appearances from the date of removal of January 11, 2013 to the hearing date of November 26, 2014, but the Father did not attend any of these proceedings except the one on November 26, 2014, and thereafter at this hearing in November, 2015. [ 104 ] The Father has two other children besides the Children with two other women. The child, J., whom he had with C.N., is currently in the custody of that child’s maternal grandmother.

The evidence indicates that the Father has been attempting to have visits with J. He had another child, C., with J.C.; however, he has not had any contact with C. as J.C. refuses to acknowledge that the Father is C.’s father.

[ 105 ] There is very little evidence to indicate what kind of a parent the Father was to any of his six children during the limited interactions he had with them. As I said before, he appears to have been an absentee father for the most part. I will comment later on his interactions with the Younger Children during his recent visits. (

b) The plan of care: [ 106 ] The Director’s plan of care for the Younger Children is permanency. That is, for them to be placed in a permanent home and not remain in a foster home. The Director plans to unite the Younger Children in the home with the Older Children, and has already taken efforts to this effect. The adoptive family has been assessed for suitability. The Younger Children have been visiting with the Older Children and the adoptive family every second weekend and spending overnights with them.

The Younger Children’s foster family has been working with the adoptive family to facilitate these visits. [ 107 ] This plan of care of uniting the Younger Children with the Older Children is consistent with the Mother’s wishes as expressed to the MCFD and with the MCFD’s policy of keeping siblings together to the extent possible. [ 108 ] The evidence indicates that the adoptive family has been open to having the Maternal Aunt visit with the Children at their home. (

c) The Younger Children’s best interests: [ 109 ] I will now consider the factors in s. 4(1) of the CFCSA that are applicable in determining the best interests of the Younger Children, keeping in mind that these are not the only factors that may impact their best interests: (

i) the Younger Children’s safety: [ 110 ] There are a number of safety concerns with the Father. [ 111 ] As I have already discussed above, stable housing is a major concern. The evidence indicates that the Father, together with the Grandmother, have moved three times since his release from the hospital at the end of October, 2014. They are on the move again as their current rental home is slated for redevelopment.

Their current home is not child-proof. [ 112 ] The boarder, M.E., is a long-time friend of the Father, and with his mental health issues (which could escalate to violence) could pose a serious danger if he was allowed to continue to reside with the Father. [ 113 ] The Father’s continued use of alcohol and drugs is a serious concern that the MCFD has for many years tried to have him address, without much success. He was referred to the Surrey Addictions Centre, but he only attended the intake session on January 18, 2015 and did not attend after that. His hair test showed positive for cocaine on February 27, 2015.

These incidences are after his release from the hospital after his stroke. He does not appear to be taking his addictions seriously. The chronic concern with him has been the lack of follow through on anything. [ 114 ] The Parents have been known to get together (in spite of court orders prohibiting any contact between them) whenever the opportunity presents and engage in substance abuse, which at times have led to domestic violence.

This scenario is likely to reoccur, and this also poses a risk. [ 115 ] The evidence indicates that the Father in the past has been involved in criminal activities and is alleged to have been harassed and injured by his acquaintances from those activities.

If those people reappear in the Father’s life, that could pose a serious danger as well. [ 116 ] The Father’s physical disability is also a potential risk, as he lacks the energy or the ability to run after or keep up with the Younger Children, particularly in light of the fact that T.C. has a tendency to bolt and N.C. likes to climb a lot. (ii) the Younger Children’s physical and emotional needs and level of development: [ 117 ] Based on the evidence, it is not an exaggeration to conclude that the Father is inept at caring for himself, let alone his Children.

He seems to have continually made poor choices in his life and is unable to overcome the addiction and other challenges he faces. He still struggles with his own physical and emotional needs, and constantly looks to his mother for help. [ 118 ] He needs his mother to speak for him. For example, when he was referred to the Act 2 Family Program in January, 2015, he wanted his mother to attend with him. When he met with the employment counsellor at WorkBC, for every question he was asked, he asked the counsellor to talk to his mother. He did not testify at this hearing.

His mother again spoke for him. [ 119 ] He does not appear to have much parenting skills, particularly the skills, and the physical and emotional stamina necessary to raise a child like T.C. who has complex behavioural issues. [ 120 ] The MCFD has referred him to parenting programs on a number of occasions over the years (2010, 2011 and 2015), but he has repeatedly failed to complete those programs.

He at one time expressed to the social worker that he was not going to engage as “he has had enough of this bull shit.” He did not engage in mediation and other efforts the MCFD tried. [ 121 ] The letter dated May 12, 2015 from Ms. Sandra Ang, the Parent Educator with the Act 2 Family Program, to the MCFD is very telling. In this letter, Ms. Ang notes that the Father attended only thrice out of the 13 program days, and only once with T.C. for about an hour and none with N.C. as she expressed fear of the Father. He had accrued five excused absences and two unexcused absences and three suspended program days.

She also notes that the Father forgot to return the homework he was assigned to demonstrate his readiness to parent toddlers, but later returned it reporting that his mother had helped him complete it. Ms. Ang concludes that “[s]taff would not recommend that [the Father] be re-referred in the future as it appears that at this time he struggles to provide for his own basic needs independently and it is unlikely that he could independently parent young children.”

[ 122 ] The social worker’s evidence is that the Father expressed a strong dislike for the Act 2 Family Program and admitted to her that he could not independently parent the Younger Children and he wanted his mother to co-parent with him. [ 123 ] In addition to the factors I have mentioned above, another major concern is the Father’s disability (both cognitive and physical) from the stroke he suffered in September, 2014. He has limited mobility and suffers from speech deficit. He lacks energy and is visibly lethargic. This was noted during his recent visits with the Younger Children.

He would simply sit on the couch and not engage with the Younger Children. At the hearing, I also noticed him slouched in his seat, falling asleep, and not being able to follow or engage in the proceedings. [ 124 ] While the Grandmother testified that he has surpassed all of his expectations in terms of recovery, neither she nor the Father provided any medical evidence as to the extent or timeline for his recovery to the point of being able to care for his young children.

The limited evidence the Grandmother gave in this respect indicates that the Father’s doctor does not recommend that he take on any employment at this time. The Grandmother says he can perform limited chores, but she would not leave the Younger Children with him alone as he will not be able to run after T.C., for example. He is not able to drive either. [ 125 ] The Father also lacks the ability to exercise good judgment. The Grandmother, herself, notes that as a teenager he got two young girls pregnant in the same year.

The evidence indicates that he was driving with his infant child when he had no driver’s licence. He repeatedly had contact with the Mother when she was under a no contact court order with him. He had many motor vehicle infractions for which the Grandmother paid the fines. He was involved in drug trafficking and associated with unsavoury people. He took no responsibility for his children. He always found excuses to shy away from programs that could help with his addictions and parenting skills. He swore at the social workers who were trying to help him.

At one time he was yelling to the effect “fuck the ministry; this is not going to work; this is a fucking joke.” These are just a few examples of his lack of judgment and maturity. [ 126 ] Needless to say, the Father’s circumstances are sad, and there is no indication that they will improve any time soon.

In this state, he is clearly not capable of meeting the Younger Children’s physical and emotional needs and their level of development, particularly given their behavioural challenges. (iii) the importance of continuity in the Younger Children’s care: [ 127 ] As I said earlier, only the Mother and the foster family have provided continual care of T.C., and in the case of N.C., only the foster family. The Father has had limited interaction with the Younger Children.

Even during the recent visits, he rarely fully engaged with them. (iv) the quality of the relationship the Younger Children have with a parent or other person and the effect of maintaining that relationship: [ 128 ] As I said in the preceding paragraph, the Younger Children have had a limited relationship with the Father. Counsel for the Father emphasized that the supervised visits with the Father and Grandmother have been progressively improving. While that may be true, I note that these visits have been occurring in a structured environment. The visits are short in duration.

The Younger Children are enticed with toys and the visits are almost structured as a playtime for them. The Father does not visit with them alone. He always needs the Grandmother’s support. The visit notes indicate that the Younger Children constantly have an eye on their foster family members to make sure that they are there to take them home. How they may react in a real setting, alone with the Father and/or the Grandmother, is unknown. [ 129 ] In terms of other relationships, T.C. has had a brief relationship with his Mother, but she supports the Director’s plan of care.

Then, for the most part of T.C.’s and N.C.’s lives, their relationship has been with the foster family. There is some evidence of their relationship with the Older Children, the adoptive family and the Maternal Aunt. The Director’s plan is to continue to foster their relationship with the Older Children and the adoptive family. [ 130 ] In the event that I grant the CCO the Director requests, counsel for the Father questions whether it is in the Younger Children’s best interests to be cut off from their family. While I agree that the guiding principle in s. 2(

b) states that “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,” that is not the only principle that I need to take into account. The safety and well-being of children are the paramount considerations under the CFCSA . When the child’s family is not able to provide for the safety and well-being of the child, then it is not in that child’s best interests to keep that child in that family environment.

In this case, it is precisely because of the Mother’s neglect that the Younger Children were removed, and based on the evidence before me I have found that they were in need of protection. Now in reviewing the Father’s circumstances, I find that he too is not able to provide for the safety and well-being of the Younger Children. [ 131 ] I do not doubt that the Father loves the Younger Children and desires to care for them.

Even if I accept the Father as a parent apparently entitled to custody, because of the Father’s past and present circumstances, and the fact that there is no evidence to suggest that his present circumstances will likely improve any time soon, I find that it is not in the best interests of the Younger Children to be placed with him.

Based on the totality of the evidence before me and, in light of the Director’s proposed plan of care, I find that it is in the best interests of the Younger Children to be placed in the continuing custody of the Director. [ 132 ] Therefore, I order that the Younger Children be placed in the continuing custody of the Director under s. 49(10) of the CFCSA . [ 133 ] The last issue that remains to be addressed is the post-CCO access that the Father’s counsel brought up at the hearing.

Post-CCO access [ 134 ] While the Father’s counsel canvassed the issue of post-CCO access to the Younger Children by the Grandmother and the Father in the event that a CCO is granted, the Director’s counsel objected to any consideration of that issue at this point, insisting that the proper process for such an application be followed as set out in s. 56 of the CFCSA .

[ 135 ] I agree with the Director, and will not address the post-CCO issue at this time. Conclusion [ 136 ] In conclusion, I summarize my findings as follows: (

a) the Mother breached the terms of the Supervision Order; (

b) the Younger Children were in need of protection at the time of their removal on January 11, 2013; (

c) if the Younger Children had not been removed, they would likely have been physically harmed because of the Mother’s neglect or her inability to care for them or make adequate provision for their care; (

d) it is not in the best interests of the Younger Children to have the Grandmother appointed as their guardian; (

e) the Father is not able to provide for the safety and well-being of the Younger Children; (

f) it is not in the best interests of the Younger Children to be placed with the Father; and (

g) it is in the best interests of the Younger Children to be placed in the continuing custody of the Director. Orders [ 137 ] The Grandmother’s application to be appointed a guardian under s. 51 of the FLA is dismissed. The Director’s application for a CCO under s. 49(10) of the CFCSA is granted. By the Court, The Honourable Judge V. Chettiar Provincial Court of British Columbia

Schedule A Excerpts from the CFCSA :

Definitions and

interpretation 1

(1) In this Act: "custody" includes care and guardianship of a child; "guardianship" includes all the rights, duties and responsibilities of a parent; "parent" includes (

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

b) a person with whom a child resides and who stands in place of the child's parent or guardian, but does not include a caregiver, prospective adoptive parent or director; Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

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

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

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

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

(

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

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

g) decisions relating to children should be made and implemented in a timely manner. Best interests of child 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

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

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

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

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

f) the child's views; (

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

(2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. When protection is needed 13

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

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

h) if the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care; Removal of child 30

(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that (

a) the child's health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child. Protection hearing 40

(1) At the protection hearing the court must determine whether the child needs protection. Enforcement of supervision order after the protection hearing 42

(1) A director must, without any further court order, remove a child who is the subject of a supervision order made under section 41 (1) (

a) or (b), (1.1) or (2.1), 42.2 (4) (

a) or (c), 46 (3), 49 (8) or 54.01 (10) or an interim order made under

section 42.1, if either or both of the following apply: (

a) the director has reasonable grounds to believe that the supervision order or interim order no longer protects the child; (

b) the director has reasonable grounds to believe that a person has not complied with a term or condition of the supervision order or interim order and a director is required by that order to remove the child if the person does not comply with that term or condition. Continuing custody hearing and orders 49

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders:

(

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. Access to child in continuing custody of director 56

(1) If a continuing custody order is in effect, a parent or any other person may apply to the court for access to the child.

(2) At least 10 days before the date set for hearing the application, notice of the hearing must be served on (

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

b) the director, and (

c) the parties to the proceeding in which the continuing custody order was made.

(3) The court may order that the applicant be given access to the child if access (

a) is in the child's best interests, (

b) is consistent with the plan of care, and (

c) is consistent with the wishes of the child, if 12 years of age or over. Excerpts from FLA : Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Parents are generally guardians 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(2) Despite subsection (1), an agreement or order made after separation or when the parents are about to separate may provide that a parent is not the child's guardian.

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies: (

c) the parent regularly cares for the child.

Orders respecting guardianship 51

(1) On application, a court may (

a) appoint a person as a child's guardian, or

(2) An applicant under subsection (1) (

a) of this

section must provide evidence to the court, in accordance with the Supreme Court Family Rules or the Provincial Court (Family) Rules , respecting the best interests of the child as described in

section 37 [best interests of child] of this Act.