DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 39

Citation: British Columbia (Child, Family and Community Service) v. M.J.K. 2020 BCPC 39 Date: 20200228 File No: F3424 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: A.B.K. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.J.K. and S.M.F. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Director: P. Armstrong Counsel for the Parent, Mr. K: P.T. Busch Counsel for the Parent, Ms. F: A.

Penhall Places of Hearing: Courtney and Campbell River , B.C. Dates of Hearing: August 19, 20, 21, October 1, 2, 3, 2019, February 12, 13, 14, 2020 Date of Judgment: February 28, 2020

The Issue [ 1 ] The issue in this case is the future of A.K. (“A”), who is now 6 years of age. [ 2 ] At present, A’s sole guardian is the Director of Child, Family & Community Service, by virtue of a continuing custody order made by Her Honour Judge Crockett of this Court on March 23, 2017. Mr. K, A’s biological father, applies to set aside that order. [ 3 ] It is not clear that Mr. K would become A’s guardian if the continuing custody order were set aside. A biological parent is a guardian if and only if the biological parent “regularly cared for the child”: Family Law Act SBC 2011, c. 25 , s 39.

As discussed below, Mr. K has never had day-to-day care of A, and so is not her guardian. There is no application before the Court to appoint Mr. K (or anyone else) to be A’s guardian. [ 4 ] Mr. K’s application was opposed by Ms. F, A’s biological mother. Sadly, however, Ms. F died of a drug overdose in March, 2019, and so was unable to participate in the hearing. [ 5 ] The Director opposes the application. [ 6 ] Three First Nations participated in the hearing, the Homalco and Klahoose First Nations (of which Ms. F was a member) and the Wuikinuxv First Nation, of which Mr.

K is a member. [ 7 ] On an application to set aside a continuing custody order, the issue is not whether the child is in need of protection. Rather, the issues are: (

i) whether there has been a significant change in the relevant circumstances since the continuing custody order was made; and (ii) if so, whether cancellation of the continuing custody order is in the child’s best interest: Director of Child, Family & Community Service v. A.I., 2005 BCPC 620 ; [2005] BCJ No. 2976 @ paragraph 3. I am prepared to assume that there has been a significant change in circumstances since the continuing custody order was made.

However, I am of the opinion that A’s best interests are served by remaining in her present placement, and that the application should be dismissed for that reason. The balance of these reasons for judgment are concerned with the question of A’s best interests. Overview [ 8 ] The factual matrix of this case is complex. An overview may assist the reader: a. There are only two options in this case. Either A will remain in the foster home where she now lives (on Cortes Island) or she will move to her father’s home (in Gold River). b. A is 6 years old. She has never lived with her father.

In the first 4 years of her life, she had seven visits with him. Since 2018, she has had visits with him every second week and Skype calls in the weeks when she has not had visits. All of her visits have been supervised by the Ministry of Children & Family Development (“MCFD”), and have been of 1 – 2 hours’ duration. c. MCFD removed A from her mother’s care about a year after she was born. The triggering event which led to her removal was a brutal assault by Mr. K on Ms. F. A witnessed the assault. Her Honour Judge Crockett made the continuing custody order because she was of the view that Ms.

F could not be relied upon to care for A, or to keep her safe from physical and emotional abuse by Ms. F’s intimate partners. d. A lived in a foster home on Quadra Island from September, 2014 to May, 2018. In May, 2018, she moved to her present home on Cortes Island, where her foster parents are Ms. F’s cousin, Mr. P and his wife, Ms. S. e. Mr. K lives in Gold River, which is about 2 hours from Quadra Island and 2 – 3 hours from Cortes Island. f. One significant issue in this case is whether one option or the other offers A a better opportunity to participate in an indigenous culture. g. Ms.

F was a member of the Homalco and Klahoose First Nations. With small differences, those First Nations share a common language and culture. Quadra Island is part of the Homalco traditional territory. Cortes Island is part of the Klahoose traditional territory. h. Mr. K is a member of the Wuikinuxv First Nation. The language and culture of the Wuikinuxv First Nation are distinct from those of the Homalco and Klahoose First Nations. The centre of the Wuikinuxv population is at Rivers Inlet, about 6 - 8 hours’ journey from Gold River. i.

Gold River is in the traditional territory of the Mowachat/Muchatlaht First Nation. The language and culture of that First Nation are entirely distinct from those of the Wuikinuxv and Klahoose/Homalco First Nations. j. A is already fluent in the language and culture of the Klahoose and Homalco First Nations. If she moves to Gold River, she will lose much of that fluency.

She has had some exposure to the language and culture of the Wuikinuxv First Nation while living on Cortes Island, and her opportunities to participate in that culture are likely to be at least as good, and probably better, if she continues to live on Cortes Island than they would be if she moves to Gold River. The Statutes [ 9 ] There are two applicable statutes. Until January, 2020, child protection issues for all children in British Columbia were governed by the Child, Family & Community Service Act, RSBC 1996 c. 46 (“the Provincial Statute ”).

A new federal statute came into effect on January 1, 2020: An Act Respecting First Nations, Inuit and Metis Children, Youth and Families SC 2019, c 24 (“The Federal Statute ”). [ 10 ] A constitutional challenge to the Federal Statute is now pending before the Quebec Court of Appeal. However, no constitutional

issue was raised in this case. [11] The Federal Statute recognizes and affirms the right of First Nations to enact their own laws in relation to child custody andprotection. I am informed that none of the Wuikinuxv, Klahoose and Homalco First Nations First Nations have exercised that right. [12] The factors which I am to consider are set out in sections 2 - 4 of the Provincial Statute and sections 8 – 17 of the FederalStatute. I find no inconsistency between the two statutes which is pertinent to the issues in this case.

For that reason, I need not considerthe doctrine of federal paramountcy, as described in Alberta (Attorney-General) v. Moloney, 2015 SCC 51 , [2015] 3 SCR 327@ paragraphs 14 – 29. [13]

Section 2 of the Provincial Statute and section 10(1) of the Federal Statute each provides that A’s safety and well-being are tobe the “paramount considerations” in my deliberations. One significant difference between the statutes is that section 16(1) of the FederalStatute provides that “… to the extent that it is consistent with the best interests of the child…”, A is to be placed (in order of preference)with Mr. K, another family member or a member of her indigenous community. No similar provision appears in the Provincial Statute.

Iconstrue the direction in the Federal Statute to mean that I should form an opinion as to A’s best interests, and then consider whetherplacement with Mr. K would be consistent with those interests. If not, I should place A with a member of her extended family or amember of one of the First Nations to which she belongs (Homalco, Klahoose or Wuikinuxv). The placement proposed by the Director iswith A’s mother’s cousin, Mr. P, who is the elected Chief of the Klahoose First Nation.

The Continuing Custody Order [14] The following are pertinent extracts from the reasons for judgment rendered by Her Honour Judge Crockett when she made thecontinuing custody order on March 23, 2017: [Mr. K] did not take

part in the hearing. His counsel attended at the commencement of the hearing and stated that he supported themother, but otherwise took no position. His counsel made no submissions. The mother, father and child are of First Nations heritage. Nocounsel appeared on behalf of either of the First Nations, but they were provided with notice of the Director’s application. The Ministry has been involved with the mother since [A’s] birth in Campbell River. [Ms. F] tested positive for several drugs while inhospital, including heroin, cocaine, ecstasy and marijuana. [Ms.

F] admitted to using heroin and marijuana, and had a prescription formethadone during the pregnancy. [A] was in the hospital for approximately a month after birth to be treated for withdrawal from methadone. Before leaving the hospital,[Ms. F] entered into a Voluntary Care Agreement with the Ministry. [Ms. F] lived in a foster home in which a caregiver monitored herparenting and provided support and guidance. * * * A three-month supervision order was granted on January 15, 2014, and was subsequently extended. Sometime after that, [Ms.

F] returned to live in the Campbell River area. [A] was removed on September 19, 2014, in Campbell River,when the supervision order was breached by [Ms. F]. An interim custody order was made on September 23, 2014, followed by atemporary custody order on October 21, 2014 …. That order was ultimately extended until the conclusion of this hearing. Since removal on September 19, 2014, [A] has been living in a stable home with a foster family, and is doing well.

The Director’s plan,should I make a continuing custody order, is for the child to be adopted, preferably by a family related to the mother or father, but if not,then into an Aboriginal family. The Director’s goal is to find a home where the adoptive parents are willing to allow [Ms. F] to continueto have a relationship with the child … but there is no guarantee this will happen. * * * What comes across clearly in this case is that [Ms. F] loves her child, and has, at times, worked hard to address her sobriety. She has, attimes, cooperated with the Ministry and sought their support and guidance.

She loves her child, and interacts well with her. They have astrong bond. She has made some positive advances in that she has had stable housing for over eighteen months, and it appears drugs areless, or perhaps not, a problem for her at present. However, it is also clear that there is a history of alcohol and drug addiction since her teens and early twenties. In addition, [Ms. F] has along, and recent, pattern of making poor choices about partners, which leads to drinking and violence.

The documentation and evidencealso show a pattern of impulsive decision-making …, particularly when she involved with a male partner. * * * [A] is likely to be physically or emotionally harmed because of the neglect of her parent, due to substance abuse, or impulsive decision-making, and as a result of her choices of male partners, which lead to domestic violence. As a result of a consistent pattern of these risksin the mother’s life, she is unable to care for [A], or make adequate provision for her care. People [15] Ms. F was A’s biological mother. As noted above, she died of a drug overdose in March, 2019. Ms.

F’s father is a member ofthe Klahoose First Nation and her mother was a member of the Homalco First Nation. The central community of the Klahoose FirstNation is on Cortes Island. The central community of the Homalco First Nation is in Campbell River. [16] Mr. K was born in Bella Bella, which provides the closest hospital to Rivers Inlet. He spent the first 4 years of his life at RiversInlet. His parents moved to Haida Gwaii (about 500 kilometres northwest of Rivers Inlet), when he was four, and then to Vancouver

when he was 10. He entered the workforce at age 17, and is now employed in the logging industry. He is a highly-skilled worker, and is regularly employed and well-paid. He has some knowledge of the Wuikinuxv language and culture, but acknowledges that it is “limited”. He said: Like, my mother was very limited. My mother was a survivor of residential school. She was taken from - from her parents when she was just a little girl and she didn’t get to see what parenting was like. So, I - I myself I grew up in a home where, like my mother had her - her culture beat out of her.

And on – and she had had myself and my other siblings, and she’s – she’s been robbed of her culture by residential schools until I – like I grew up in - I grew up in Vancouver and I did not have the access to that cultural identity stuff, right? * * * My mother was -- after she left residential school and all that there, she did not want to go back to her - her home in Rivers Inlet and that there, because she was - she told me there’s a lot of bad memories she had from there. * * * My culture was taken … by the residential schools from my mom, so … I’ve been robbed of that myself.

For the Ministry to say that culture is more important … my culture was taken from me by the colonialism and the residential schools. They punished me for not having that culture …. Mr. K’s father committed suicide. His mother later died. He said: … my mom passed away, I went from - from the alcoholic functioning addict to just – I lost all control of – everything in my life that … had worked to get myself to where … I had been at there. [ 17 ] Mr. K’s extended family live in Campbell River and Port Hardy. [ 18 ] Mr. K acknowledges that he and Ms.

F were active users of heroin and cocaine before A was born, and that A tested positive for those substances at birth. He has availed himself of counselling opportunities made available to him, and says that he is now clean and sober. He abused steroids as a young man. He now takes them by prescription. He attributes some of his anger management challenges to abuse of steroids. [ 19 ] Mr. K has two sons (ages 12 and 17) from an earlier relationship. In April, 2019, they came to live with Mr. K, his present spouse, Ms. M, and her two sons (ages 11 and 14) in Gold River. Ms. M is Caucasian. Before that, Mr.

K’s sons were in the custody of their biological mother, by whom they were grossly neglected. Before they came to live with Mr. K and Ms. M, the boys were malnourished, housed in unsanitary conditions and not enrolled in school. [ 20 ] Mr. K is a dignified, articulate, resolute man, who has worked hard to overcome a very unfortunate personal history. However, he is also a very angry man. While he controlled his temper admirably in the courtroom, his anger was manifest in his presentation. [ 21 ] A was born on [omitted for publication].

She was born addicted to opiates and was held in hospital until October 4, 2013, when she and Ms. F moved to a maternity foster home funded by MCFD. In the spring of 2014, Ms. F and A moved into their own accommodation under the terms of a supervision order. On September 19, 2014, MCFD removed A from her mother’s care and placed her in a foster home on Quadra Island. Her foster parents were [names omitted for publication]. [The foster parents] are Caucasian. [The foster parents] were approaching retirement age, and so declined to put themselves forward as adoptive parents. Mr. P and Ms.

S offered to provide a permanent home for A, and she moved to their home on Cortes Island in May, 2018. She has resided there since May, 2018. [ 22 ] Mr. P is Ms. F’s cousin and the elected chief of the Klahoose First Nation. He serves, ex officio , as a director of the Klahoose corporations which conduct aquaculture and forestry operations in Klahoose traditional territory. Those ventures are commercially successful. His wife, Ms. S was born in Wales. She holds dual British and American citizenship and is a permanent resident of Canada. She is also an adopted member of the South Dakota Sioux First Nation.

They live on Cortes Island. [ 23 ] A’s social worker reports that A remains strongly attached to the [foster parents], and visits them often on Quadra Island. The social worker describes A as a happy, intelligent child who is meeting all of her developmental milestones. She visits frequently with her maternal grandfather, from whom she has learned the language and traditional songs and dances of the Homalco and Klahoose people. [ 24 ] A spends much of her time engaged in traditional food-gathering tasks of the Klahoose people and in preparing and preserving the foods so gathered.

Her after-school activities, and some of her classes in school, are conducted in the language of the Klahoose and Homalco people. [ 25 ] A has a half-sister, now age 16, Ms. F’s daughter from a previous relationship, who lives in the Yukon Territory but visits Cortes Island every summer. [ 26 ] A also has extended family (aunts, uncles, cousins, etc.), most of whom live on Cortes Island. Of particular importance among that group is her maternal grandfather, whom she visits often. [ 27 ] Ms. Grauer is a clinical counsellor in practice on Cortes Island. Ms. S referred A to Ms.

Grauer to assist A in coping with her grief when Ms. F died. Ms. Grauer is an experienced and well-qualified clinical counsellor. I would have accepted her as qualified to give opinion evidence if she had been tendered for that purpose. Unfortunately, the Director did not give notice of opinion evidence, as required by s. 11 of the Evidence Act, RSBC 1996, c 124 . As a result, she was called only for the purpose of giving evidence of objective facts. Geography

[ 28 ] Mr. K lives in Gold River, British Columbia, with Ms. M, her two sons and Mr. K’s two sons (A’s half-brothers). Gold River lies in the traditional territory of the Mowachat/Muchatlaht First Nation. [ 29 ] Mr. K is a member of the Wuikinuxv First Nation. The traditional territory of the Wuikinuxv First Nation is on the shores of Rivers Inlet. [ 30 ] Quadra Island is part of the traditional territory of the Homalco First Nation.

Cortes Island is part of the traditional territory of the Klahoose First Nation. [ 31 ] These facts give rise to some geographical challenges when one attempts to provide A with meaningful opportunities to engage in the cultural life of the Homalco, Klahoose and Wuikinuxv First Nations. [ 32 ] The population figures provided below are those recorded by Statistics Canada in the 2016 census. Campbell River is a small city, with a population of just over 35,000. Gold River is a village approximately 80 km west of Campbell River, with a population of about 1200.

Cortes Island is about 50 km east of Campbell River, and has a population just over 1000. Quadra Island lies between Campbell River and Cortes Island. Port Hardy is a village approximately 250 km northwest of Campbell River, with a population just over 3600.

Rivers Inlet is a remote area 112 nautical miles northwest of Port Hardy. [ 33 ] There are good all-weather roads between Campbell River and Gold River (about an hour’s drive), and between Campbell River and Port Hardy (about 3 hours’ drive). [ 34 ] Access to Cortes Island is provided by two ferries, the first from Campbell River to Quadra Island and the second from Quadra Island to Cortes Island. Each ferry trip takes about 20 minutes.

When one adds in the time necessary to drive across Quadra Island and the inevitable waits at the ferry terminals, the journey takes one to two hours. [ 35 ] Access to Rivers Inlet may be by boat from Port Hardy (about 4 hours) or by float plane from Campbell River (about 90 minutes). Float plane travel is very expensive. [ 36 ] It will be apparent from this brief description that it is relatively easy for A to participate in the cultural life of the Klahoose and Homalco First Nations if she lives on Quadra Island or Cortes Island, which are separated only by a 20-minute ferry ride.

Chief Blaney of the Homalco First Nation told me that: Klahoose and Homalco are very close. We have the same creation story. We have a lot of the same spiritual beliefs, same teachings. We are - there’s four of our communities that have the common language. [ 37 ] Whether she lives in Gold River, as Mr. K proposes, or on Cortes Island, as the Director intends, A’s access to the cultural life of the Wuikinuxv First Nation will be much more difficult.

Chief Johnson of the Wuikinuxv First Nation informed me that the language of the Wuikinuxv people shares a few common words with the languages of the Klahoose and Homalco people, but is a distinct language. There about 300 members of the Wuikinuxv Nation, of whom about 60 live at Rivers Inlet. I asked about opportunities for those who live away from Rivers Inlet to participate in the cultural life of the Nation. He replied: They can come home. A lot of our members do come home, during the summer.

And if we have any social gatherings, they get invited to potlatches – or whatever, or there’s death in the family, they come home. And our treaty meetings, they come home. I mean, some kids come home just for the joy of being home, and our population quadruples sometimes. And they get to meet each other. We have children’s activities with our health department that gets them – they do a lot of, like, berry-picking … and they learn how to jar salmon, barbecue salmon. [ 38 ] Mr.

K’s two sons (A’s half-brothers) attend school in Gold River, where they participate in classes on the subjects of indigenous language and culture. However, the language and culture taught in those classes are those of the Mowachat/Muchatlaht First Nation, which are distinct from those of the Homalco, Klahoose and Wuikinuxv First Nations. Family Violence [ 39 ] Mr. K was the aggressor in two incidents of family violence which share certain common characteristics. In each case, the victim was Mr. K’s intimate partner. In each case, Mr. K struck and choked the victim to the point of unconsciousness. Mr.

K’s two sons were present during, and witnessed, the first incident, in which their mother was the victim. A was present during, and witnessed, the second incident, in which Ms. F was the victim. [ 40 ] The first incident occurred on June 22, 2010. On June 24, 2010, Mr. K entered a guilty plea to a charge of assault causing bodily harm and received a sentence of 9 months’ jail and 18 months’ probation. [ 41 ] The second incident occurred on March 2, 2015. Her Honour Judge Crockett described the incident in the following terms in her reasons for judgment: While in Victoria, Mr. K, [Ms .F], [A], and [Ms.

F’s] previous daughter went out for dinner. At dinner, [Ms. F] and Mr. K got into an argument about pictures of a female on Mr. K’s cell phone. They decided to return to their hotel. [Ms. F’s] oldest daughter was picked up by her adoptive mother. After she left, [Ms. F] and Mr. K continued their argument. [Ms. F] eventually went to sleep, but was awakened by Mr. K yelling in her face. He cut his hand with a knife and was bleeding. He threatened to kill himself. He held the knife to his throat, and is described in the police report as having slashes on his neck. During the incident, Mr.

K cut the phone cord when [Ms. F] tried to call for help. The situation escalated to the point where Mr. K strangled [Ms. F] to the point of unconsciousness. Eventually, Mr. K left the hotel room, and [Ms. F] went to the lobby with [A] to call 911. All of this took place in the presence of [A], who is described by [Ms. F], in a report to the police, as crying on the bed watching her mother being strangled.

Mr. Armstrong confronted Mr. K with those passages during Mr. K’s cross-examination. Mr. K responded: That’s – for the way this was put down on the paper and what is being portrayed, it’s not exactly how the situation played out there. It’s not exactly how it played out there. But I do recognize the fact that there was a terrible incident, and my daughter witnessed there. I’m not going to argue with the details and all that there. I - like I say, take full responsibility for what it is.

But in how – how this is played out there, I do have, as you say, argument about how this is written there, because I’ve read the entire police report and how it was. There was no slashes on my neck. * * * I own my

part in that evening. Yeah. So, I’d like to make aware that, too, is that it takes two to tango. And there was an incident, it involved both of us, where we both made a bad decision. And as I look back now, in hindsight, I realize – I can recognize the bad decision-making, the action, the behaviour and the consequence of it there …. His assertion that “… it takes two to tango …”, in the context of an extremely violent spousal assault, gives rise to serious concern. It can only mean that, in Mr. K’s view, Ms. F bears some responsibility for that assault.

His lack of insight on the subject is worrisome. [ 42 ] A third incident occurred at Mr. K’s home in Gold River in June, 2019. Conflicting accounts of the event were offered in evidence before me, but the essential facts are not in dispute. Mr. K was living in the house with his two sons, Ms. M, and Ms. M’s two sons. Mr. K and Ms. M had an argument, which culminated in Mr. K throwing a number of her belongings around and out of the house. The boys were present, and witnessed the altercation. Ms. M fled the house with her two sons and called 911 to report the event and to express her concern that Mr.

K might be suicidal. Mr. K and Ms. M reconciled soon thereafter. Ms. M and her sons returned to live with Mr. K and his two sons. [ 43 ] Mr. K has clearly made significant progress with his substance abuse and anger-management issues. Mr. K’s addictions are now in remission, but there is always a risk of relapse with every recovering addict. Mr. K has a history of violent behaviours. I am not in a position to quantify the risk of future family violence initiated by Mr. K, but I consider it to be a real risk, which should not be ignored.

Cultural Connections [ 44 ] Each of the governing statutes emphasizes the importance of fostering A’s connection to, and participation in, the cultures of the First Nations of which she is a member. [ 45 ] A has been an active participant in the Klahoose and Homalco cultures since she was 13 months old. Those cultures are fully- integrated aspects of her day-to-day life. She is fluent in their common language, and knows many of the traditional songs and dances by which the cultures are transmitted from generation to generation.

She visits often with her maternal grandfather, with whom she speaks the language and participates in cultural activities. She engages in traditional food-gathering and preserving activities as part of her day- to-day life. [ 46 ] A has had some exposure to the language and culture of the Wuikinuxv First Nation. One of the after-school programs in which she participates (the “Wolf Pack”) is led by a Wuikinuxv woman who grew up on Rivers Inlet and is fluent in Wuikinuxv language and culture. A has learned several Wuikinuxv songs from her.

Several other Wuikinuxv people have married members of the Klahoose First Nation and live on Cortes Island. A has met them, and so gained some exposure to the language and culture. One of A’s favourite activities are the “Tribal Journeys” undertaken by children from the Klahoose community several times each year. The children, supported by adult caregivers, paddle traditional canoes down the coast to visit other First Nations who live between Port Hardy and Seattle. Ms. S accompanies A on these journeys, and Mr. P joins them when his obligations as Chief permit.

One highlight of the gatherings with other First Nations is the presentation by each Nation of a “protocol”; i.e. a performance of the traditional songs and dances of each Nation, each in its own language. Ms. S and A always participate in the Klahoose protocol and attend the Wuikinuxv protocol, affording A some exposure to Wuikinuxv language and culture. [ 47 ] Mr. K says that A should learn the Wuikinuxv language and culture, but proposes no practical program to achieve that objective. He is unable to teach her himself because (through no fault of his own) he lacks the necessary knowledge.

He points out that he has extended family in Campbell River and Port Hardy, and that the Wuikinuxv First Nation holds community gatherings several times each year in Port Hardy and Rivers Inlet. He suggests that those would offer opportunities for A to participate in Wuikinuxv culture and to learn the language, and says that, if A is transferred to his care, he will ensure that she is exposed to those opportunities. Given the difficulties of geography, described above, it is likely that those opportunities will be limited to a few visits, each of a week or less in duration, over the course of each year.

There is no evidence of the cultural fluency of Mr. K’s extended family. If it is similar to his own, visits with them will not expand A’s cultural horizons. [ 48 ] One way of assessing A’s chances of a meaningful connection to the Wuikinuxv culture, if she were placed in the care of Mr. K, is to look at the experience of Mr. K’s two sons, her half-brothers. They attend school in Gold River, which includes classes in the language of the Mowachat/Muchatlaht First Nation. That language and culture are distinct from those of the Klahoose, Homalco and Wuikinuxv. Ms.

M said that, for the boys to learn the Wuikinuxv language: We would have to move to a very remote village and they don’t have a school there either, so I don’t know. It’s probably not a good idea. [ 49 ] Mr. Busch referred me to, and urged me to accept, the views expressed in “Rethinking Racine v. Woods from a Decolonizing Perspective: Challenging the Applicability of Attachment Theory to Indigenous Families Involved in Child Protection” Canadian Journal of Law & Society

(2019) Vol. 34, No. 1, pages 55 – 78 (“the Racine Paper”). At paragraph 74, the learned authors say: … knowing culture comes from living “in”, as opposed to periodic exposure to, that culture. I agree.

[50] I conclude that A’s opportunities to learn about and participate in Wuikinuxv culture are at least as good, and probably better, onCortes Island than they would be in Gold River. [51] Thanks to [the foster parents], Mr. P and Ms. S, A is fluent in the languages of the Homalco and Klahoose First Nations andparticipates actively in their culture every day. If she moves to Mr. K’s house in Gold River, it will take her more than 2 hours to travelto a place where she can speak the Homalco/Klahoose language and participate in the culture.

She will cease to be immersed in thatculture and will become an occasional visitor. [52] In short, if I were to accede to Mr. K’s application, A would lose one culture and not gain another to replace it. [53] Some might say that it would be unfair to deprive Mr. K of the opportunity to parent A because he was a victim of colonialcultural imperialism. Fairness to each of the parties is, of course, an imperative for every court in every case. However, each of thegoverning statutes expressly provides that A’s best interests are the over-riding consideration on this application.

The statutes do notallow me to prefer Mr. K’s interests at the expense of A’s. Continuity [54] Each of the statutes mandates a consideration of the significance of continuity in A’s life. “Continuity” may be approached ineither of two different ways. As a matter of common sense and general knowledge: (

i) significant changes in a child’s life can produce afeeling of insecurity; and (ii) separation from significant people in a child’s life can be very distressing. As a matter of science, thereexists a body of scholarly research on the subject, which is commonly described as “attachment theory”. [55] I am mindful of the limitations upon my knowledge of the science of attachment. I lack the scientific education necessary toenable me to read the scholarly literature with a sufficiently critical eye. I pointed out to counsel that some opinion evidence from aqualified expert would be helpful.

No such evidence was offered, but both counsel invited me to consider the scholarly literature whenassessing A’s interests. [56] In the Racine Paper, the learned authors advance their case for the proposition that Racine v. Woods (SCC),[1983] 2 SCR 173 should be reconsidered in light of current developments in the science of attachment. Among other scholarly sources,the learned authors refer to The Cultural Nature of Attachment: Contextualizing Relationships & Development MIT Press, 2018 (“TheMIT Text”). [57] Even to my untutored eye, two points emerge clearly from the Racine Paper and the MIT Text: (

a) Classic attachment theory, which posits a primary attachment between an infant and a single caregiver (usually the mother) andlesser attachments to members of the child’s nuclear family, is now challenged by reputable scholars. The authors of the Racine Paperand the MIT Text describe it as an ethnocentric European model which does not reflect the values and practices of other human cultures.They point out that, in many human cultures, child care is shared among members of the community, including but not limited toextended family, and that the child’s attachments in those cultures are much more diffuse.

They say that there is no evidence to supportthe inference that the European model of the nuclear family is superior to those of other cultures, and they urge judges to facilitateconnections between indigenous children in care and the broader community to which they belong. (

b) The study of human attachments is a work-in-progress, and there remains much which we do not know about it. [58] In response, Mr. Armstrong referred me to my own decision in Director v. A.M. and A.L.D. 2017 BCPC 271; [2017] BCJ No.1854 @ paragraph 25. In that case, I quoted the following passage from "Clinical application of attachment theory in permanencyplanning for children in foster care: the importance of continuity of care" Infant Mental Health Journal

(2004) Vol. 25(4), pages 379 –396 (“the Montreal Paper”). Under the heading "Conclusions", the learned authors wrote: Our work with young children who spend prolonged periods with foster families and who come from highly pathogenic families bringsus back to the origins of attachment theory. Bowlby's initial observations were made on the severe sequelae in adolescence of childrenwho had been early, and often repeatedly, separated from their mothers. Such observations have been corroborated repeatedly in the last30-40 years (Steinhauer, 1991).

Continuity of attachment ties is essential to the global development of a young child and a rupture ofsuch ties is a traumatic event in a child's life with major short-term and long-term consequences. When we developed our consultation, we did not know what kind of problems would be brought to us. We were gradually struck by thefrequency of this issue: permanency of a long-term fostering, or returning to a biological family, usually after several years of suchfostering.

We were constantly reminded that a "child's time" in his crucial early years is much shorter than the "adult's time": a youngchild can't wait for his parents to solve their persistent personality problems, their childhood traumas, their drug abuse and violence. Achild can't be put "on hold". If well cared for in a foster home which is ready to invest in him fully, he is likely to become securelyattached and his development will proceed accordingly.

If a reintegration process is put in place to return the child to his biological family, the child evidently does not understand why the"biological tie" is favored - an incomprehensible concept for a young child - rather than the attachment which he experiences to thecaregivers in the foster family. The child cannot understand why he is separated from the parents that were given to him, and that hesomehow gave himself, through an attachment process which is based on the daily occurrences of infant-parent interactions.

When thisstructure begins to change with the introduction of new living arrangements ... , even a secure young child becomes very vigilant andstarts erecting defenses to keep the proximity to his attachment figures, with much suffering. When a child loses his parents completely... , the anger-rage response finally takes over. [59] The most significant evidence on the subject of A’s attachments was given by Ms. Grauer. The following are pertinent extractsfrom her evidence (underlining added): Q. Can you describe the types of things you do with [A]?

A. So, I have a play therapy room set up. There’s art and craft materials available. There’s a sound tray, puppets, stuffed animals, a variety of things. And the play is self-directed by the child and I really facilitate and follow. And A has demonstrated an excellent ability to engage with all of the materials that are there, and she shows a high degree of organization and coherence in her play. And in particular at the first session that’s one of the most critical for assessing attachment, she demonstrated a very strong attachment to [Ms. S] when [Ms.

S] brought her to the session, in particular showing mild distress at separating from the caregiver, yet when the caregiver reassured her and moved in terms of proximity, relaxed and she enjoyed the session. After the session, she sought [Ms. S] out for comforting again, which would be expected from a child who’s securely attached to a caregiver. Q. … describe your observations of A, your impression.

A. … it’s fairly rare in my profession to experience children who have a secure attachment, because most of the children who come have experienced trauma or loss and that’s the main reason for their referrals for counselling. So, that has been a standout element in terms of A’s presentation. She’s very organized in her play. She also shows a lot of integration of her culture into her play. She often counts in … the Klahoose First Nation language …. She talks a lot about her culture nights and what she’s learning there. * * * … yesterday was the first session in which she didn’t raise … the issue of [Ms.

F], nor did she make something for her. In the previous sessions, she made different wooden objects …. * * * She also talks about her connections to [Ms. F] in terms of all of her aunties in the community and really feels like her mom is there at Klahoose with her. She also talks about [the foster parents] … and her foster brother, D. That’s the only sibling she has identified is D who was in the same foster home as her. …. Q. … and you say the only sibling she has identified is D? A. That’s the only one she has mentioned. Q. … and she talks about [Ms. F] and all her relatives at Klahoose? A.

All of her relatives at Klahoose. And usual play has some family setting, like having tea or the fairies in the sandbox all coming together, so there’s often in terms of the family, [Mr. P] or [Ms. S] and herself and they’ll sit down to dinner. Q. … who does A talk about most often without urging …? A. … it’s non-directive play. Yeah, [Ms. S]. [Ms. S] is the centre of A’s world and her primary attachment. [A] calls her [Ms. S] or mama. Q. Does she ever speak of her dad …? A. She’s never mentioned him. [ 60 ] I conclude that A’s primary attachment is to Ms.

S. [ 61 ] I am prepared, for the purposes of this case, to assume that the Racine Paper, advanced by Mr. Busch on behalf of Mr. K, is the correct approach to consideration of attachment issues in relation to indigenous children. On that premise, the best placement for A is with Mr. P and Ms. S on Cortes Island. In that placement, she engages daily with other members of her First Nation, including members of her extended family, and incorporates the language and culture as integral parts of her day-to-day life. If she moves to Mr. K’s home, she will be isolated as a member of Mr.

K’s nuclear family, with only rare opportunities to speak her indigenous language, engage in her indigenous culture and participate in the cultural life of her extended family and other members of her First Nation. A’s Views [ 62 ] Ms. Grauer and Ms. S inform me that A knows nothing about these court proceedings, and is not aware that a judge is considering whether to order that she be placed in the care of Mr. K. [ 63 ] The following exchange transpired between Ms. Grauer and me at the conclusion of Ms. Grauer’s evidence (underlining added): Q.

The statute says that I am to consider the views, opinions and preferences of the child concerned … “if they can be ascertained”. I think we all have to be worried about involving children in court proceedings. … Is there a way in which I can get A’s point of view without doing her harm? A. That’s … a huge challenge. I think the fact that she has a secure attachment is her viewpoint in many ways . Q. … But would you regard it as a good idea for someone to ask A what she wants the outcome of this proceeding to be? A.

Not particularly, and I base that more on work in which I’ve worked with children where parents have been separated and they’ve been solicited by parents, lawyers, judges parent coordinators, anyone in those roles, about their opinions and the children stay conflicted long past childhood and adolescence often about having been solicited for their opinion. … And, you know I’ve even worked with adults who reflect back and forth and wonder about the answers they gave from a child’s perspective about what they’d be like and how their life might have been different if it wasn’t informed by perhaps the fact that one parent or the other indulged them in a certain way.

So, I think … that’s a huge challenge and a huge risk ….

The comment that “… the fact that she has a secure attachment is her viewpoint …” is explained by her observation (quoted above) that “… [Ms. S] is the centre of A’s world and her primary attachment …”. [ 64 ] Counsel declined my invitation to ask any further questions consequent on the exchange quoted in paragraph 63, above. Acting on Ms. Grauer’s advice, I have refrained from making any inquiry, directly or through an intermediary, to ascertain A’s views.

Conclusion [ 65 ] Section 16(1) of the Federal Statute provides that the biological parents of children in care are to be the first-choice caregivers “… to the extent that it is consistent with the best interests of the child”. I conclude that placement with Mr. K would not be consistent with A’s best interest, and that her best interests will be best served by remaining in the care of Mr. P and Ms. S. Disposition [ 66 ] The application is dismissed. February 28, 2020 _____________________ T. Gouge, PCJ