Director v. C.M. and A.C. Date:, 2015 BCPC 338

Citation: Director v. C.M. and A.C. Date: 20150904 2015 BCPC 0338 File No: F36212 Registry: Penticton 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: L.M.C ., born [omitted for publication] O.M.C., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.M. (mother) AND: A.C. (father) PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Director: Boon

Counsel for the Parents: Munson, W. Place of Hearing: Penticton , B.C. Dates of Hearing: January 27-30, March 23-25, 27, April 2, June 2, 3, 5, 8, 9, July 22-24, August 26, 2015 Date of Judgment: September 4, 2015 Introduction [ 1 ] C.M. (mother) and A.C. (father) are the parents of L.M.C. and O.M.C. Both children were taken into care by the Ministry of Children and Families shortly after birth. L.M.C. is now 3 and O.M.C. is almost 2. [ 2 ] The reasons for the apprehension were fourfold: i. Complaint that drugs were being cut and sold from the family home; ii. Complaint that A.C. was physically abusing C.M.; iii.

Complaint that L.M.C. was underweight and the parents were not accepting the assistance of a public health nurse; and iv. A.C.’s volatile reaction to the Ministry’s attendance at the family home. [ 3 ] The Director contends that events that have followed since removal confirm that the children remain at risk of emotional and physical harm and neglect if they are returned to the care of the parents.

It is for that reason that the Director applies for a continuing custody order. [ 4 ] Counsel for the parents on the other hand argue that the grounds for removal remain unsubstantiated, the children are not at risk and should be returned. Analytical Framework [ 5 ] In a child protection proceeding brought under the Child Family and Community Services Act , the court’s powers must be exercised in accordance with the guiding principles expressed in s. 2 of the Act . That

section makes children’s safety and well-being “paramount considerations”. The principles that govern the

interpretation and administration of the Act in furtherance of those paramount considerations are as follows: • children are entitled to be protected from abuse, neglect and harm or threat of harm; • 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; • if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; • the child's views should be taken into account when decisions relating to a child are made; • kinship ties and a child's attachment to the extended family should be preserved if possible; • the cultural identity of aboriginal children should be preserved; • decisions relating to children should be made and implemented in a timely manner. [ 6 ]

Section 4 of the Act provides the following non-exhaustive listing of factors that must be considered by a court whenever it seeks to determine what will serve a particular child’s best interests: • the child's safety; • the child's physical and emotional needs and level of development; • the importance of continuity in the child's care; • the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; • the child's cultural, racial, linguistic and religious heritage; • the child's views; • the effect on the child if there is delay in making a decision. [ 7 ] The first step is to determine, pursuant to s. 40(1) of the Act , whether the children are in need of protection.

[ 8 ] Section 13(1) of the Act defines circumstances in which a child will be statutorily deemed in need of protection. Some, but not all, of those circumstances are engaged by the facts of this case. [ 9 ] If, having regard to such factors, this court makes a finding that the children are in need of protection, then the court must, in a second step in the process, go on to determine whether, pursuant to s. 41(2)(

c) or s. 49(5) of the Act , placement of the children in the continuing custody of the Director would be in their best interests. [ 10 ] In assessing whether a continuing custody order is appropriate in any given case, I am required to also give consideration to the Director’s Plan of Care for the children, and to any evidence heard in connection with it touching upon the past conduct of the parent toward any child in his or her care and upon the child’s best interests overall. Issues 1. When is a Child in Need of Protection? 2.

Is the Court Prohibited from Finding a Child in Need of Protection on Ground Not Pled by Director in its Originating Application? 3. What Is The Relevant Date for Finding in Need of Protection? 4. What is the Onus and Standard of Proof in Determining whether the Children are in Need of Protection? 5. Has there already been a Finding that the Children are in Need of Protection? 6. Are the Children in Need of Protection? 7. If so, What Test Applies in Determining Whether a Continuing Custody Order is Appropriate? 8.

What is the Onus and Standard of Proof in Determining Whether a Continuing Custody Order is Appropriate? 9. Is a Continuing Custody Order in the Best Interests of the Children?

Summary of the Evidence [ 11 ] As will be noted from the

summary of evidence there was little conflict in the viva voce evidence adduced and relied upon by each of the parties. Despite this, the hearing of evidence occurred over 18 days which spanned over several months. In an effort to arrive at a more timely resolution, I would strongly urge counsel in the future to explore the possibility of filing an agreed statement of fact which could supplement the viva voce evidence called. [ 12 ] C.M., now age 25 and A.C., age 28 began their relationship when A.C. was serving a federal jail sentence.

After his release from prison in 2011 the couple began living together in Vancouver and eventually moved to Princeton. [ 13 ] As children both C.M. and A.C. were in the care of the Ministry. For various reasons both parents have developed a deep distrust for the Ministry. L.M.C. Born [omitted for publication] Commencement of the Ministry Investigation (June 2012) [ 14 ] In June, 2012 the Ministry began a child protection investigation. At the time the Ministry had received three primary complaints that it determined needed to be investigated: i. A.C. had physically abused C.M.; ii.

Drugs were being cut and trafficked from the home; iii. L.M.C. was less than average weight and C.M. refused to let the public health nurse into the home to track the child’s weight. [ 15 ] Police told social worker Warren that A.C. had an extensive youth and adult criminal history and expressed concerns about anyone having contact with him. [ 16 ] According to Mr. Flynn, a director of practice with the Ministry, the Ministry does not normally at the outset investigate the veracity of the complaints they receive. Instead, their first action is to confront the parents with the complaints and assess their response.

From there they determine whether further investigation is required. Initial Contact with the Ministry (July 19, 2012) [ 17 ] On July 19, 2012, Ms. Warren, accompanied by police attended the couple’s residence in Princeton. [ 18 ] When Ms. Warren knocked on the door, A.C. answered. He was angry that the social worker and police were there. He allowed Ms. Warren to enter the residence but told police they were not welcome. [ 19 ] Although Ms. Warren did not attend with the intention of apprehending L.M.C., the couple thought otherwise. Ms.

Warren’s discussion with the couple quickly became heated and they swore at Ms. Warren and asked her to leave.

[ 20 ] Ms. Warren left the residence but returned after speaking with her supervisor. A.C. was still very agitated and continued yelling. [ 21 ] He allowed Ms. Warren to re-enter the residence and said he would leave. On his way out of the residence he punched an overhang severely breaking his hand and knuckles. [ 22 ] A.C. was originally taken to the Princeton hospital and then Penticton hospital after becoming argumentative with another patient. [ 23 ] Because of the complaint that drugs were being trafficked from the home, Ms. Warren asked and was given permission to search the home. Ms.

Warren found it clean and appropriate for a young child. After a thorough search the only indication of drugs in the home were some roach clips. C.M. told Ms. Warren that A.C. smoked marijuana. [ 24 ] C.M. told Ms. Warren that although she did not allow the public health nurse into the home, she was going to another clinic where there was a public health nurse. She also obtained a breast milk pump to ensure L.M.C. was properly nourished. There was no evidence that the child was in fact underweight. [ 25 ] Ms. Warren observed what she believed to be a bruise on C.M. but did not discuss it with her. Ms.

Warren did not specifically confront C.M. about the bruise but did question her about violence in the home. C.M. told Ms. Warren that when the couple argued A.C. usually went for a walk. She denied any history of physical abuse. [ 26 ] During the verbal altercation, C.M. was holding L.M.C. in her arms. In her report, Ms. Warren said that L.M.C. was unresponsive to the intense yelling.

Social Workers Roberts and McLean Discuss Safety Plan with C.M. [ 27 ] Hal Roberts, and Cindy McLean, social workers who had a previous working relationship with C.M., met with her to discuss a safety plan for L.M.C. until the Ministry could complete the investigation. [ 28 ] C.M. agreed not to allow A.C. to have contact with L.M.C. until the Ministry completed their investigation. [ 29 ] A few days after this meeting, the Ministry learned that A.C. had returned to Princeton and the couple was back together. Decision to Apprehend L.M.C. [ 30 ] Mr.

Flynn, who is employed as the Director of Practice with the Ministry testified that the decision to apprehend L.M.C. was based on the following: • A.C.’s criminal history which included convictions for firearms, violence, and drugs; • A.C. had recently completed a lengthy jail sentence and had his parole revoked; • A.C.’s explosive reaction in the presence of social worker Warren; • Complaint that A.C. was trafficking drugs; • Complaint of domestic violence and possible bruising on C.M.; • C.M.’s unwillingness to allow a public health nurse to track L.M.C.’s weight gain; and • C.M.’s unwillingness to keep L.M.C. away from A.C.

Apprehension of L.M.C. (July 24, 2012) [ 31 ] On July 24 th Ministry workers took L.M.C. into care. [ 32 ] Following the apprehension, social workers spoke with [omitted for publication], A.C.’s sister who teaches in the lower main land. She told them that to her knowledge the couple was not using drugs, there was no domestic violence in the home, and both parents appeared to be protective of L.M.C. [ 33 ] Speaking to Ms. Reed was the extent of the Ministry investigation.

They did not conduct any further investigation into the allegations or try to establish the veracity of the initial complaints. [ 34 ] The Director now concedes that the allegations are unsubstantiated. Ministry Provides Couple with List of Expectations (September 26, 2012) [ 35 ] On September 26, 2012, the Ministry sent C.M. and A.C. a letter re-stating their safety concerns and how those concerns needed to be addressed before L.M.C. could be returned to their care. The list was as follows: i. The couple would need to provide random hair samples for drug analysis; ii.

C.M. would need to attend and actively participate in Stopping the Violence Counselling; iii. The couple would need to participate in all medical and developmental services for L.M.C. These services were to

include: Infant Development, Public Health, other parenting related programs; iv. A.C. would need to attend and actively participate in counselling for anger and violence; and v. The couple would need to participate in the “Building Healthy Relationships” Program and couples counselling. Arrested on Stolen Firearms Charges (February 20, 2013) [ 36 ] On February 20, 2013, the couple were arrested and charged with possessing stolen firearms. A.C. remained in custody for a few months before the charges against both were eventually stayed by the Crown. Referral to Ms.

Willoughby (February, 2013) [ 37 ] In February, 2013 the Ministry referred C.M. to Ms. Willoughby who specializes in attachment issues. It was felt that since L.M.C. had been in care for several months, the parties would need to work on the transition of her returning to her mother’s care. [ 38 ] C.M. was engaged in the process and attended regularly for a few hours per day. [ 39 ] When A.C. was released from custody, the couple attended together but eventually stopped attending and in November 2013 Ms. Willoughby closed her file. The parents testified that they stopped seeing Ms.

Willoughby following a meeting with Ministry in October 2013 wherein they felt betrayed by both the Ministry and Ms. Willoughby. [ 40 ] Ms. Willoughby said that it was apparent that the couple had a great deal of resentment towards the Ministry and on occasion, like other clients, vented to her. She said that she has seen clients with the same type of energy as A.C. and understands how some would be intimidated by him, however, she never felt threatened or intimidated. Referral to the Infant Development Program [ 41 ] A referral was also made to the infant development program.

Bridgette Gibson, the programs facilitator, testified that the parents met with her at the Boys and Girls Club and both appeared to be engaged in the process. She last saw the parents in February 2014. Ms. Gibson testified that the whole time she worked with the parents she never experienced any conflicts with them. Failure to Cooperate with Drug Testing [ 42 ] One of the expectations of the Ministry was that both parties would agree to random drug testing. However, when the Ministry attempted to obtain a hair sample, A.C.’s head was shaved.

The Ministry opined that A.C. deliberately shaved his head to avoid being tested and consequently access to L.M.C. was suspended. File Transferred to Summerland Ministry Office (July 2013) [ 43 ] In July 2013, because of staffing issues, carriage of the file was transferred from Ms. Mclean of the Aboriginal Services Unit to the Summerland office where Ms. Mills and Mr. Roberts assumed conduct. Access Re-instated [ 44 ] On July 18, 2013, Ms. Mills and Mr.

Roberts set upon reinstating access for the couple and working towards a goal of reunifying the family. [ 45 ] C.M. requested that D.F., her former foster parent, supervise the visits and the Ministry agreed. [ 46 ] C.M. was pregnant with O.M.C. and the Ministry hoped to reunite the family before she was born. [ 47 ] The couple was reminded that future planning for O.M.C. would depend upon their success in getting L.M.C. back into their care. A.C. is Confronted about Bruises to His Face (August 2013) [ 48 ] During a visit in August of 2013 Ms. Mills noticed bruising to A.C.’s face and she asked him what happened.

A.C. lied and said he fell off a ladder. When challenged about the truth of his story, A.C. stood up, postured and swore. He admitted he had received the injuries defending a friend in a fight. Ms. Mills attempted to calm A.C. without success and ended the visit early. [ 49 ] A.C. said he initially lied to Ms. Mills because he felt she would use it against him by restricting his access to L.M.C. [ 50 ] The visits resumed two days later. According to reports, the visits went well. Both parents were described as attentive to their daughter. Parenting Capacity Assessments [ 51 ] In May and August 2013, Dr.

Elterman interviewed the couple and provided the Ministry with individual Parenting Capacity Assessments. [ 52 ] Dr. Elterman described A.C. as impulsive, having a short attention span, and hyper vigilant to deception. He said A.C. sees the world as hostile and usually takes an aggressive stance as a first response. A.C. acknowledged being quick tempered. [ 53 ] Dr. Elterman recommended that A.C. comply with drug tests, attend Dialectical Behaviour Therapy program, explore with his

physician the possibility of a being prescribed medication for attention deficit disorder and participate in some parenting coaching. [ 54 ] Dr. Elterman said that the Dialectical Behaviour Therapy could teach A.C. to examine reactions to situations before acting. [ 55 ] He commented that although he did not believe that A.C. would physically harm his daughter(

s) he did express concerns that his daughter(

s) could be emotionally harmed if exposed to his explosive temper towards others. Dr. Elterman also expressed concerns about the child(ren) becoming older and seeking independence, but did not elaborate further. [ 56 ] Dr. Elterman pointed out that A.C. appeared to be having difficulty recognizing some of his weakness as a parent because he was so focused on getting his child returned. [ 57 ] Dr. Elterman’s primary concern with respect to C.M.’s ability to parent is the likelihood that she will downplay and rationalize A.C.’s explosive temper.

He states that C.M. has a co-dependent relationship with A.C. and as a consequence might not remove the child(ren) when the situation poses as being unsafe. [ 58 ] D.F., C.M.’s former foster mother, testified that when C.M. has made her mind up about something she becomes very inflexible and not easily dissuaded, but did think C.M. was an excellent parent. [ 59 ] Ms. P. another foster parent spoke highly of C.M.. She said she believed that she would do everything to protect her children from an unsafe situation. Ms.

P. believed that she would protect her children from A.C. if his addictions posed a risk to her children, but she would also be reluctant to give up on A.C. and would insist on him dealing with his issues. [ 60 ] Aside from the concern noted above, Dr. Elterman was otherwise of the opinion that she was a good parent. He commented that he had no concerns about the attachment between mother and child. Ministry Provides Couple with the Elterman Recommendations (August 26, 2013) [ 61 ] On August 26, 2013, Ministry worker Mills sent the parents a letter outlining Dr.

Elterman’s recommendations and informed them that the Ministry expected them to be fulfilled. They included: i. A.C. to grow his hair so the Ministry could obtain a suitable hair sample for drug testing; ii. A.C. to attend dialectal behavior therapy through mental health; iii. A.C. and C.M. to attend MIG (Modified Interaction Guidance) iv. A.C. consult a doctor about being prescribed medication for adult attention deficit disorder; Access in Couples Home Re-instated (September 2013) [ 62 ] In September 2013, Ms.

Mills inspected A.C. and C.M.’s residence and determined it would be appropriate for the couple to start having access to L.M.C. inside their home. However, there was a stipulation that if A.C. was present the visits would need to be supervised. [ 63 ] When the visits occurred, C.M. would not let anyone connected with the Ministry enter the residence to confirm whether A.C. was present. C.M. suggested they speak to her lawyer. Referral to Dialectical Behaviourial Therapy Program [ 64 ] A.C. was referred to the Dialectical Behaviourial Therapy Program. He attended some of the classes twice but others not at all.

According to the program facilitator, A.C. attended enough of the program to receive a certificate of completion but she still recommended that he take the program again to ensure he got its full benefits. Letter from Peterson Suggesting Children Would be Returned to Parents (September 30, 2013) [ 65 ] On September 30, 2013, Mr. Peterson, then counsel for the Director, wrote to counsel for C.M. and A.C. and told them that the Director would like to meet with the parties to meditate a solution which the parties understood to mean the return of L.M.C. to her parents under supervision.

Access Suspended for Failure to Let Ministry into the Home (October 3, 2013) [ 66 ] On October 3, 2013, after attempts by Ministry workers to persuade C.M. to let them into her home, the Ministry suspended access for both parents. Access Re-instated at Couple’s Residence Provided A.C. was not Present (October 7, 2013) [ 67 ] On October 7, access resumed on the understanding that D.F. would be allowed inside the residence to confirm A.C. was not present. A.C. Attends Access Visit Contrary to Ministry Direction (October 9, 2013) [ 68 ] On October 9, D.F., and L.M.C.’s foster parent, Ms.

U., attended the couple’s residence for a pre-arranged access visit. Despite the requirement that A.C. not be present, A.C. appeared, walked up to Ms. U’s van and took L.M.C. out of her car seat. L.M.C. cried and Ms. U’s later told social workers that she was afraid for her own safety.

Mediation (October 16, 2013) [ 69 ] Further to Mr. Peterson’s letter asking the parties to meet to mediate a solution, the parties agreed to meet on October 16, 2013. At the meeting the parents were told that despite what was said in Mr. Peterson’s letter, the Ministry would not be returning L.M.C. but would instead be following through with an application to extend the temporary custody order. [ 70 ] In response, A.C. pounded the table, pointed at everyone in the room, said “I hate you”, swore and left. [ 71 ] Ms. Willoughby was present at the mediation.

She was surprised that the couple had not been told in advance that the Ministry had reversed its position. She said it clearly came as a shock to the couple. She said that during the meeting she could see A.C.’s level of agitation increasing but the people at the conference continued to pursue their line of discussion. [ 72 ] The couple testified that they felt betrayed by the Ministry and Ms. Willoughby. C.M. told the court that she had spoken to Ms. Willoughby and told her how excited she was about getting their daughter back.

She felt let down by the fact that she knew but did not give her a heads up that the Ministry had changed its position. [ 73 ] The meeting was a clear turning point in the relationship with the Ministry, Willoughby and the couple. It clearly precipitated a great deal of distrust and resentment for the Ministry. [ 74 ] Counsel for the parents questioned why the Ministry did not give the parents some advanced warning of the change in their position, especially in light of Dr.

Elterman’s comments that A.C. is hyper-sensitive, impulsive and reactive. [ 75 ] It is always easy to examine situations in hindsight, but dynamics in case conferences are extremely important. Parents, like these two, are often emotionally vulnerable and special care is needed. They are often prone to anger or high emotion, especially given the intense fear of losing their children forever. Allowing their lawyers to prepare their clients for the news would have been the better approach. Access Suspended [ 76 ] Following the meeting, C.M.’s access was also suspended.

O.M.C. is Born and Apprehended (Omitted for publication) [ 77 ] On [omitted for publication] O.M.C. is born. O.M.C. was apprehended at birth. [ 78 ] Although more than a year passed since L.M.C.’s apprehension, the Ministry apprehended O.M.C. relying on many of the same grounds, despite the fact that most of them remained unsubstantiated. Parents Cooperation with the Ministry Deteriorates [ 79 ] Following the failed October mediation, the relationship between the Ministry and the parents became seriously fractured.

There was a clear shift in the degree of cooperation with the expectations they set out for the couple. Ministry Provides Couple with List of Expectations (November 21, 2013) [ 80 ] On November 21, 2013, Ms. Mills by letter again outlined the Ministry’s expectations /recommendations. This time the list included a further recommendation that C.M. attend mental health counselling, and re-iterated her need to take “Stopping the Violence” program. Supervised Access Re-instated [ 81 ] Supervised access was eventually reinstated for both parents.

Purse Incident (December 12, 2013) [ 82 ] On December 12, 2013, D.F. supervised a visit at the Friendship Centre. A.C. became upset with Ms. F. for telling someone to move C.M.’s purse; he swore at her and asked her if she wanted to take it outside. Although in cross examination it was suggested to Ms. F. that the phrase “take it outside” was merely a request to take their argument outside, because they were in front of the children. Ms. F. did not think that was what the intention but did say it was possible. [ 83 ] In his testimony, A.C. could not recall this incident.

Eviction Incident (December 18, 2013) [ 84 ] On December 18 th , the couple received an eviction notice. Ms. Mills spoke to the landlord and was told that the couple was being evicted because of an infestation of bedbugs, and A.C.’s aggression towards another tenant in the building and the fumigator. Good Behaviour at Access Venues is required [ 85 ] Ms. Mills sent a letter to the couple telling them that A.C. needed to control his anger because it would risk them losing the ability to use certain venues for access to their children.

Referral to the Modified Interaction Guidance Program (January 8, 2014) [ 86 ] On January 8 th , 2014, Ms. Mills sent counsel for the parents letters explaining when and where A.C. needed to go to get started

with the MIG program and that the facilitator also recommended that he see a psychiatrist and how he could go about seeing one. [ 87 ] MIG stands for modified interaction guidance. It is an attachment based program. A facilitator meets with the parent and child, and records their interactions. The facilitator then views the recording with the parent and makes suggestions on how the parent can modify things to be more in tune with attachment needs of the child. [ 88 ] According to the Ministry the couple did not attend the program.

A.C. and C.M. on the other hand claim that when they contacted the program they were told it was cancelled because they were not having access to their children. In fact around the same time as the referral, A.C.’s access was suspended and C.M.’s suspension soon followed. They said that they were initially told the same thing about the Dialectical Behaviour program but A.C. persisted with the program facilitator and was allowed to partake. Leaving the Friendship Centre with L.M.C. (January 20, 2014) [ 89 ] On January 20 th , Ms. F. supervised a visit at the Friendship Centre.

Despite being told he could not leave the building with the children, A.C. went outside with L.M.C. and stood across the street. He eventually returned upon Ms. F’s urging. A.C.’s Access is Suspended and C.M. Misses Visits [ 90 ] Following the incident at the Friendship Centre, A.C.’s access was suspended. [ 91 ] In January and February of 2014 C.M. missed a number of visits with the children at the Summerland Ministry office. She did not provide the Ministry with advance notice that she would not be attending or any reasons for her non-attendance.

C.M’s Access Reduced [ 92 ] Because C.M. failed to attend several access visits the Ministry reduced the number of visits to a couple of times per week. Boys and Girls Club Incident (February 18, 2014) [ 93 ] On February 18, 2014, C.M. was having a visit with the children at the Boys and Girls Club. Despite the fact that A.C.’s access was suspended he showed up near the end of the visit. He was calm and hugged his daughter. He told Ms. F that someone better fix the visits and left.

The staff at the Boys and Girls Club was alarmed and notified the Ministry that they were no longer prepared to host visits for the couple. [ 94 ] A.C. testified that he had gone there to pick up C.M. and L.M.C. saw him so he went to pick her up and give her a hug. He thought it would emotionally damaging to L.M.C. if he simply ignored her. Ms. F. Accused of Being Responsible for Cancelling Access [ 95 ] Following this incident, the couple contacted Ms. F. and angrily accused her of being responsible for A.C. losing access to his children.

A.C. told her he would make her life a living hell if they lost their children. [ 96 ] Ms. F. testified that she also discovered her tires slashed on her vehicle. Although suspicious, counsel for the Director says that it was not relying on the incident in pursuit of their application for continuing custody. Access for C.M. is Suspended (February 21, 2014) [ 97 ] Despite Ms. F. being prepared to continue supervising access visits for both parents the Ministry also suspended C.M.’s access and did not re-instate A.C.’s.

Supervised Access for C.M. is Re-instated (March 12, 2014) [ 98 ] On March 12 th supervised access for C.M. is re-instated. A.C. on the other hand, is banned from the Ministry office and his access to the children is never re-instated. [ 99 ] All of C.M. access visits thereafter are held in the Summerland Ministry office. Drug Testing (Sept. 4, 2014) [ 100 ] On September 4, 2014, the couple provided hair samples for analysis. C.M. drug tests showed no signs of drug use.

However, A.C.’s drug test demonstrated positive signs of cocaine, heroin and the use of methamphetamine within a 10 month period. [ 101 ] A.C. testified that he began using drugs following the apprehension of L.M.C.. He testified that his doctor cut him off pain medication and he began self-medicating. He continued to use until the spring of 2015 when he went onto the methadone program. He said that he did not go onto the methadone program sooner because he was worried about its side effects. His mother and C.M. persuaded him to do so. He has been on the program for a few months.

He candidly admitted that there have been slips but both he and his doctor are working towards getting the dose correct, to prevent future relapses. [ 102 ] Neither the parents nor the Director called A.C.’s doctor as a witness in these proceedings. [ 103 ] There is no current drug analysis before the court to assist in assessing the veracity of A.C.’s claim about the number of times or degree of slips while on the program. OHS Threat Assessment (January 2015)

[ 104 ] The Ministry had an Occupational Health Threat assessment completed. The recommendation that followed was that A.C.’s visits with the children be supervised by a police officer or sheriff. The details of the assessment are not before the court. [ 105 ] According to the Ministry, having a law enforcement officer present was not viable and they chose not to resume access for A.C.. Access at the Courthouse [ 106 ] During the trial of this matter, counsel for A.C. asked the Ministry if he could have access with a sheriff present at the courthouse.

The Director took the position that a visit would not be in the best interest of the children because A.C. had not seen the children for almost a year and did not have a relationship with them. [ 107 ] I did not agree with the Director’s position that a lack of relationship brought on by the actions of the Ministry in denying access to the children and granted access under the supervision of a sheriff and social worker. I was told the access visits went well and the family celebrated L.M.C.’s birthday party during one of the visits.

Disability Insurance Incident (March 2015) [ 108 ] In March 2015, the couple got into an argument with A.C.’s disability insurance worker. The worker found the interaction with the couple very intimidating and steps were taken to prevent further contact with the worker. A.C.’s Criminal Record [ 109 ] A.C. has an unenviable criminal record, especially in light of his age. However, the majority of the convictions appear to be for property related offences. In 2009 he received a 26 month sentence for 3 break and enter charges, possession of stolen property and failing to comply with a probation order.

A few months later he received a further 30 day sentence for obstructing a police officer. This was his last custodial sentence. [ 110 ] In 2006, A.C. was convicted of assaulting a previous girlfriend by closing a door on her arm and threatening her with bear mace. There are no other convictions for violence. [ 111 ] In 2013 he was detained in custody on stolen firearm charges but those charges were eventually stayed by the Crown and he was released from custody after a few months.

Fulfillment of the Ministry Expectations [ 112 ] A.C. completed the Dialectical Therapy program, participated in Parenting Wisely and Positively Parenting classes, participated in some attachment based counselling sessions with Ms. Willoughby and participated in drug tests. [ 113 ] According to A.C. he participated in anger management counselling. An anger management program booklet was filed with the court. Initially, A.C. said that he personally filled out the booklet but later acknowledged that the handwriting in the book was that of C.M.. He said that she wrote in it as he spoke.

The program facilitator said that A.C. did not meet with him as per a requirement of the counselling and he did not consider the program completed. [ 114 ] A.C. testified that he spoke to his doctor about attention deficit medication but was told by him it was unnecessary. [ 115 ] One of the expectations of the Ministry also included the couple taking couples counselling.

Both C.M. and A.C. said they met with a couple’s counsellor but were told at the intake they did not require it. [ 116 ] C.M. said she did not take “Stopping the Violence” because there was no violence to stop. [ 117 ] There was a clear turning point in their relationship with the Ministry in October 2013 when the couple felt the Ministry had misled them about the return of their daughter. Following that, little if any cooperation occurred between the couple and the Ministry. Plan of Care [ 118 ] The Director’s plan should a continuing custody order be made is to find the same adoptive placement for the girls.

The chances for two children to be adopted together will decrease as they get older. [ 119 ] If I return the children to the parents, C.M. indicated she would likely scale back her hours of work at Value Village to care for her children. However, she will not give up working all together. Both parents agreed that A.C. would be the primary caregiver when C.M.’ is working. [ 120 ] The couple do not have any family support. [ 121 ] The parents did not address how they would financially manage if C.M. reduced her hours, given A.C.’s inability to work. ANALYSIS 1 When Can a Child be Found in Need of Protection [ 122 ]

Section 13 of the Act lists the non-exhaustive circumstances when a child is deemed in need of protection. It states: 13(1) A child needs protection in the following circumstances:

(

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

b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (

c) if the child has been, or is likely to be, physically harmed, sexually abused or sexually exploited by another person and if the child'sparent is unwilling or unable to protect the child; (

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

e) if the child is emotionally harmed by (

i) the parent's conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides; (

f) if the child is deprived of necessary health care; (

g) if the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide orconsent to treatment; (

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; (

i) if the child is or has been absent from home in circumstances that endanger the child's safety or well-being; (

j) if the child's parent is dead and adequate provision has not been made for the child's care; (

k) if the child has been abandoned and adequate provision has not been made for the child's care; (

l) if the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume carewhen the agreement is no longer in force. 13(1.2) For the purpose of subsection (1)(

a) and (

c) but without limiting the circumstances that may increase the likelihood of physicalharm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domesticviolence by or towards a person with whom the child resides. 13(2) For the purpose of subsection (1)(e), a child is emotionally harmed if the child demonstrates severe: (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behaviour. [123] The factors set out in

section 13 are not exhaustive. In S(

B) v British Columbia (Director of Child, Family and CommunityService), (BC CA), [1998] BCJ No 1085 (BCCA) our Court of Appeal observed the itemization of certaincircumstances in which a child will be considered in need of protection under section 13(1) must be interpreted in a manner consistentwith the principles set out in

section 2 of the Act. [124] A child may be in need of protection, even if the precise circumstances enumerated under

section 13 have not be proven to therequisite standard. Rather if the need of protection from abuse, neglect, harm, or threat of harm is proven to requisite standard thensection 2 provides a paramount principle of positive law to confirm the entitlement of the child to protection. In short,

section 13 is notan exclusive list of circumstances where protection is needed. As the court pointed out, no child should continue in a state of abuse,neglect, harm, or threat of harm while the parties argue over the precise compartment of section 13(1) within which the case comes. 2 Is the Court Prohibited from Finding a Child in Need of Protection on a Ground Not Pled by Director in its OriginatingApplication? [125] In the case at hand, when L.M.C. was apprehended, the Director set out in its application the grounds upon which theapprehension occurred.

The grounds did not include A.C.’s use of drugs. [126] The Director argues it should not now be prevented from relying on it as a basis for the court to find there is a need forprotection. [127] Counsel for the parents on the other hand argues that the Director should be restricted to what is contained in its application. [128] This issue was resolved in the case of Catholics Children’s Aid Society of Toronto v M(M), 2012 ONCJ 369. In that case, thecourt held that a court could make a finding of protection under any of the subsections even if they were not originally pled by theDirector.

The court states at paragraph 101: The court also has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justifiedby the evidence and if the parent had prior disclosure of the relevant evidence, is not caught by surprise and has had a full opportunity totest this evidence. Durham Children’s Aid Society v. R.S. and J.M. [2005] O.J. No. 570 (SCJ) and Children’s Aid Society of Hamilton-Wentworth v. K.R. [2001] O.J. No. 5754 (SCJ-Family Court), where Justice Czutrin stated:

"While it is better practice, and the sections are set out in the forms to plead the subsections relied on, the court cannot be prohibitedfrom finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such aconclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process.

It is openfor me to find a child in need of protection where the evidence supports the facts that fall under any subsection of s.37 where theevidence and facts have been established, and as in this case, cannot come as a surprise." 3 What Is The Relevant Date for Finding in Need of Protection? [129] L.M.C. was apprehended on July 24, 2012 and O.M.C. was apprehended on [omitted for publication]. Counsel for the parentsargue that the relevant date for finding the children in need of protection is the date of apprehension.

The Director on the other handargues that I should consider all of the evidence up to and including during the hearing, and that the relevant date is the present. [130] This issue was settled by our Court of Appeal in J(DM), [1995] BCJ No 2737 (CA). In that case trial counsel agreed therelevant date was the day of apprehension.

In allowing the appeal, the Court held that the better approach and one more consistent withthe spirit of the Act is to consider all of the evidence up to and including the date of the hearing and assess the risk of future abuse orneglect. 4 Onus and Standard of Proof [131] The British Columbia Court of Appeal in S(

B) v British Columbia (Director of Child, Family and Community Services), (BC CA), [1998] BCJ No 1085 (BCCA) discussed the onus and standard of proof required for a finding of protection. TheCourt observed that when the assertion is being made about a past event then the actual occurrence of that event must be proven by theDirector on a balance of probabilities. However, where the assertion being made is that there is a risk that an event will occur in thefuture, then it is the risk of the future event and not the future event itself that must be shown on the evidence to be more probable thannot.

The result is that in considering past abuse the degree of certainty that it has occurred will be more than is required in consideringwhether abuse will occur in the future. 5 Has There Already Been a Finding That the Children Are In Need of Protection? [132] At the outset of the trial, the Director took the position that because there had been temporary custody orders made pursuant tosection 41 following the presentation hearings for both children that this constituted a finding of protection and that the court shouldproceed directly to a determination as to whether a continuing custody order was appropriate.

Counsel for the parents, on the other hand,vigorously argued that the court needed to decide whether both children were in need of protection. [133] Midway through the trial, the Director changed its position and conceded that a finding of protection needed to be made inrelation to both children. [134] In Director v. S.L. re J.L. born (date) 2002, 2004 BCPC 525, Stansfield J. dealt with a situation where a consent order was madepursuant to

section 60 but the order was silent as to whether the consent was an acknowledgment of a finding of protection. Heconcluded that in the absence of such an admission, there could be no finding. He writes at paragraph 25: “Section 41 is set out above. It begins with the words "if the court finds that the child needs protection, it must make one of the followingorders...". That suggests that if the Director and the parents’ consent to an order made "with reference to s. 41(1)(c)" that they areagreeing with the factual precondition to a s.41 order, namely that the child needs protection.

That proposition is open to question,however, because s. 60(4) specifically provides that "an order may be made under this section" — and s.60(1) provides that the s.60consent process applies to 'any custody or supervision order provided for in this part' — "without the court finding that the child needsprotection".

It is a common practice that various orders, including interim orders at presentation hearings, and temporary orders of guardianship atprotection hearings, are made by consent following negotiations between the Director and the parties directly, or through the assistanceof a judge at a case conference. It is not uncommon that an element of the negotiation is that the agreement of the parent to the order thatthe child remain in the care of the Director is, in effect, made "without prejudice", in the sense that the parent(

s) take(

s) the positionshe/he/they will not consent to the order sought if the Director insists that there be an express finding that the child needs protection. Nodoubt the legislature contemplated exactly such negotiations when it included in the consent section, s.60, provisions that "an order maybe made under this

section without the court finding that the child needs protection (s.60(4))" and that "a consent... is not an admissionby the parent of any grounds alleged by a Director for removing the child". [135] In the case of BB v British Columbia (Director of Child, Family and Community Services, 2005 BCCA 46, the Court held that atemporary custody order by consent pursuant to

section 60 of the Act does not equate to a finding that the child is need of protection andthe court must at a continuing custody hearing proceed to make such a finding before proceeding further. At paragraph 43 MadamJustice Huddart observed: “I would summarize the effect of that

interpretation this way. Consent under s. 60 to an order of temporary custody under s. 41(1)(

c) doesnot preclude the need for a s. 40 finding of need of protection. It does preclude the need for a disposition hearing other than whatevermay be required to ensure full compliance with s. 60. The temporary custody order triggers the running of time under s. 45 and the rightof the Director to seek a continuing custody order under s. 49. On that application, the Director must establish on a balance ofprobabilities the child’s need for protection at the date of removal, unless that finding has been made on an earlier application to extend atemporary custody order (s. 44).

Once the court has made that finding under s. 40, it may consider whether to make a continuingcustody order, and if not, whether to return the child to the parents or to make a last chance order.” [136] In the case at hand, the parents contested the presentation hearing in relation to L.M.C. and took no position at the hearing forO.M.C.. It has been clear from the outset that C.M. and A.C. never believed that their children required protection from them. Nor wasthe court ever called upon to make such a finding prior to these proceedings.

[ 137 ] Some of the applications and temporary orders in relation to L.M.C. included specific reference to

section 60 of the Act . Clearly, I must make a finding that L.M.C. is need of protection before proceeding further. [ 138 ] However, the situation regarding O.M.C. is less clear. [ 139 ] On January 17, 2014 the Director applied pursuant to section 41(1)(

c) of the Act for a temporary order in relation to O.M.C.. The signed order, made by consent, does not state it is made pursuant to s. 60 but only references section 41(1)(c). The order does not contain any words as to whether or not it is to be understood as incorporating a finding that O.M.C. needed protection. [ 140 ] Following closing submissions, I had the opportunity to listen to the recording of the January 17 th hearing.

At the application, counsel for the Director indicated it was seeking to join the files of both children and was seeking a temporary custody order for O.M.C. to expire on the same day as an earlier temporary custody order for L.M.C.. The parents were not present, but counsel told the court that they would consent to the order based on the Director’s intention. Counsel did not say whether the consent was with or without a finding of protection, nor was

section 60 mentioned. No evidence was called and the court was not asked to make a finding on the record that the child was in need or protection. [ 141 ]

Section 60 provides the mechanism for consents in child protection matters. It provides that the consents must be in writing and signed by both parents. That did not occur in this case. However, despite this procedural mis-step, the consents for the purposes of this case were valid and pursuant to

section 60. [ 142 ] Surely consenting to an order pursuant to section 41(1)(

c) through counsel cannot constitute an admission by the parents that the child is in need protection from them. [ 143 ] Without a clear and unequivocal statement that they agree that a finding of protection is warranted, without a proper hearing, such an important finding cannot be inferred or imputed. [ 144 ] Therefore, I will begin by considering whether it has been proved that both children need protection.

And only if that has been proved will I move on to consider whether a continuing care order should be made. 6 Are the Children in Need of Protection? [ 145 ] The Director concedes that there is no evidence to support most of the original grounds for apprehending L.M.C. which were set out in their application. [ 146 ] Rather, the primary thrust of the Director’s argument that the children are in need of protection is that A.C. poses an emotional and physical threat to the children based on his reaction in front of Ms.

Warren and his use of illicit drugs. [ 147 ] The Director further argues that because C.M. is co-dependent on A.C., she minimizes and attempts to rationalize A.C.’s behaviour. In doing so, the Director anticipates that she will not adequately protect her children from future harm. [ 148 ] The Director concedes that but for the issue relating to her co-dependence C.M. is a suitable parent.

Character witnesses, which included former foster parents, support this conclusion. [ 149 ] The Director also concedes that aside from the incidents described above, A.C.’s interactions with and in the presence of his children have been appropriate and without incident. He has been described as a loving and doting father. a. Emotional Harm [ 150 ] I will deal firstly with the threat of emotional harm. Section 13(1)(

e) reads that: (

e) if the child is emotionally harmed by (

i) the parent's conduct, or (ii) living in a situation where there is domestic violence by or towards a person with whom the child resides; [ 151 ] Section 13(2) specifies that a child will be deemed emotionally harmed if they demonstrate certain conditions. [ 152 ] Interestingly section 37(2)(

g) of the Child and Family Services Act of Ontario goes further and provides that a child will be found in need of protection if: (

g) there is a risk that the child is likely to suffer emotional harm of the kind described in subclause (f)(i), (ii), (iii), (iv) or (

v) resulting from the actions, failure to act or pattern of neglect on the part of the child's parent or the person having charge of the child; [ 153 ] The words “is likely to suffer” are noticeably absent from the British Columbia legislation as it relates to emotional harm but are present in those sections relating to other types of harm like physical harm. [ 154 ] Justice Halfyard observed in C(EJ) v British Columbia (Director of Child, Family & Community Service), 2005 BCSC 932 , that the absence of the words means a finding of protection cannot be based on anticipatory emotional harm.

Rather, there must be proof that actual emotional harm occurred. [ 155 ] In his decision he said that it was insufficient for the Director to rely on emotional mistreatment without proof that the child actually suffered the type of emotional harm contemplated in section 13(2).

[156] In that case there was evidence to support the trial judge’s finding that the child had been subjected to emotional mistreatment byhis mother but there was no evidence that the child suffered actual emotional harm. [157] In the case at hand, Ms. Mills on behalf of the Ministry testified there was evidence of actual emotional harm. She pointed totwo instances. The first was during the couple’s confrontation with Ms. Warren when L.M.C. appeared non-responsive to the intenseyelling by both parents.

The second followed a visitation with the parents when L.M.C. was observed to be striking herself in the head. [158] There was no expert evidence led by the Director to link these reactions to emotional mistreatment, or that they constitutedemotional harm. There could be other explanations for the actions observed that are not consistent with emotional mistreatment or harm. [159] Even if one could conclude that L.M.C. was withdrawing from the intense yelling in front of Ms.

Warren, the observations ofdetachment or withdrawal on a single occasion are not sufficient to establish actual emotional harm. [160] Despite the findings of Mr. Justice Halfyard, an argument could be made that anticipatory emotional harm ought to be taken intoaccount because as the court in S(

B) v British Columbia (Director of Child, Family and Community Service) pointed out paramountcymust always be afforded to considerations regarding safety and the well-being of children, and that courts should not struggle to try andpigeon hole the type of harm into the enumerated list in

section 13. [161] I must admit I have some difficulty extending the reach of the findings in S(

B) to a factor that the legislators appear to haveconsciously and deliberately omitted from the list of types of harm. But I do not see the alternative being an ideal result. [162] If I can rely on anticipatory emotional harm in determining whether a child is in need of protection, I am not satisfied that thatthe evidence demonstrates a real possibility or risk that the children in this case will suffer the type of emotional harm contemplated bythe Act requiring protection. [163] Although section 13(2) specifically defines the type of emotional harm the Act contemplates, in light of S(

B) it is possible toconsider other forms of emotional harm that are not enumerated. However, this does not mean that any type of emotional harm issufficient to make a finding that a child is need of protection. In Catholic Children’s Aid Society of Toronto v R (M), [2003] OJ No 4385(CJ), Spence J. states at para 11: “Second, it cannot be that every kind of emotional harm was intended to be captured by this clause. There are many emotions thatchildren can experience that can be harmful and yet not harmful enough to require state intervention. Most children experience fear atdifferent stages of their childhood.

Distrust, anger and guilt are also emotions that most -- if not all -- people experience at one time oranother. Common sense and human experience tells us that this is so. And, indeed, although these emotional experiences may beharmful from time to time, they are not necessarily harmful in that they lead to a long-lasting problem. On the other hand "depression"(one of the enumerated heads) is a clinical or psychiatric diagnosis and would likely require the evidence of an expert, qualified to makesuch a diagnosis before such a finding could be made. (See, for example, the comments of Justice Maria T.

Linhares de Sousa in Re D.S.,T.P., B.P. and C.P. (Infants) (2001), (ON SC), 14 R.F.L. (5th) 414, [2001] O.J. No. 626, 2001 Carswell Ont 733(Ont. Fam. Ct.). By its nature, "depression" is likely to be a more serious problem than, for example, temporary feelings of fear or anger.” [164] I agree with Justice Spence that emotional harm cannot mean any kind or any degree of emotional harm. Where emotional harmor its risk is the only allegation, the Director must show a risk of serious emotional harm inflicted on the children by the parent, or by theparent’s failure to act.

The harm must be the type that would be demonstrated by anxiety or other manifestations that are of a ‘serious’nature. Minor or transitory problems that may affect any child at one time or another are not the types of harm contemplated. [165] In his report, Dr. Elterman opines that the children might suffer emotional harm by being exposed to A.C.’s temper when hedeals with others. Dr. Elterman also expressed concerns about the future when the child(ren) begin to seek independence.

However, Dr.Elterman does not elaborate on the type or degree of emotional harm that is contemplated. [166] Although in some circumstances it would be open to a judge to conclude without expert evidence that there is a real possibilitythat the child will suffer the type of emotional harm contemplated by the Act, such an inference is not available on the evidence beforeme. [167] The evidence clearly demonstrates that A.C. and C.M. (to some degree) have irritable personalities and can be quick to anger. They sometimes have difficulty relating well with others, and can be rude and demanding.

However, there is no evidence before thecourt that physical violence has ever been an issue in their relationship or with their children. [168] Nonetheless, A.C.’s quick temper and intransigent attitude are troubling. [169] The Director led evidence of instances where A.C. demonstrated his quick temper, some of which are worthy of closeconsideration. [170] A.C.’s reaction to Ms. Warren’s attendance was clearly inappropriate but must be considered in context. During the incident,A.C. reasonably, albeit mistakenly, believed Ms.

Warren and the police were there to apprehend his child on false allegations. [171] It is difficult to imagine how one might react to the apprehension of one’s child, let alone an apprehension that one believes isbased on false allegations. [172] On the positive side of the ledger, A.C. knew well enough to remove himself from the source of his agitation and did notthreaten or strike anyone. [173] The injury to A.C.’s hand was severe. However, little is known about the mechanism of the injury. What is known is that hestruck an overhang with a high degree of force.

What is not known is if A.C. struck it from a different angle might the degree of injurybeen less? I query whether A.C.’s reaction would have been considered as ground to apprehend if the break had been more minor in

nature, or simply resulted in a sprain. [ 174 ] The incident at the mediation in October 2013 can also be characterized as situation of extreme stress. Both parents had been without their daughter L.M.C. for more than a year, they were expecting their second child and were led to believe L.M.C. would be coming home, and they would be keeping their newborn. [ 175 ] Ms. Willoughby said that she was surprised that neither A.C. nor C.M. was briefed prior to the meeting that the Ministry was reversing their position.

She said it was apparent that the news came as a shock. [ 176 ] I agree that things could have been handled differently and the incident avoided all together. [ 177 ] Again, although A.C.’s reaction was inappropriate, he did exercise a degree of restraint by not threatening or striking anyone and immediately removing himself from the situation. [ 178 ] The third incident involved A.C.’s reaction to Ms. F.’s comments about the purse.

His reaction was clearly inappropriate and without explanation. [ 179 ] It is worthy to note that the incidents of concern were all situations where A.C. directed his anger towards the Ministry or those closely connected to it. [ 180 ] Despite A.C. being under the watch of the Ministry since July 2012, there have been no incidents of him demonstrating anger towards C.M. or the children.

According to all of the access reports he always treated the three appropriately and with respect. [ 181 ] Nor have there been any incidents of violence reported by the police. [ 182 ] The fact that A.C. has resorted only to the words and not hitting objects to vent his frustrations is a step in the right direction, albeit a small one. [ 183 ] Although, his attitude and ability to relate well with people may get in the way of moving forward in his station in life, it ‘alone’ is not a basis to find the children are in need of protection. b.

Physical Threat / Neglect [ 184 ] Although there is no evidence that A.C. physically harmed either child, the Director argues there is a risk of future physical harm or neglect. [ 185 ] Their argument is based on A.C.’s criminal record and his use of illicit drugs. [ 186 ] A.C. has a lengthy criminal record. The record was filed as an exhibit in these proceedings.

However, the circumstances of those convictions are not before the court. [ 187 ] In W(MA) v M(T), 2008 SKQB 277 , in a consolidated proceeding under the Children’s Law Act and under the Child and Family Services Act the court discussed the weight to be given to a criminal record. In that case the court considered the placement of two children in the care and custody of their grandmother under Ministry supervision. The grandmother’s common law partner had an extensive criminal record and lived in the home. Most of his life was spent incarcerated for violent offences.

The Minister opposed the placement solely because of the criminal record. “In agreeing to place the children in the grandmother’s home, the court quoted with approval the comments in S(

S) v Alberta (Director of Child Welfare), 2003 ABQB 1062 : The contemporary position relative to a parent’s criminal record is that an analysis of criminality must be undertaken to determine whether it has any impact on the child, and, if so, how to weigh that impact … The mere fact that a parent has a criminal record or lives a criminal lifestyle is not, by itself, a determinative factor on the issue of guardianship.” [ 188 ] The court went on to consider the evidence of the common law partner’s rehabilitation and concluded that he did not pose a risk to the children.

The court granted sole custody to grandmother. [ 189 ] On its face, A.C.’s criminal record does not reflect much in the way of violence. His only convictions for violence were a common assault and threatening. Both were domestic in nature but also occurred almost 10 years ago. [ 190 ] Since that time A.C. made some strides towards rehabilitation and improving his lot in life. While in custody he participated in an intensive rehabilitation program which involved counselling for domestic violence and substance abuse.

He also completed the Dialectical Behaviour Therapy program at the direction of the Ministry. [ 191 ] A criminal record can also sometimes be used to forecast the future. Where a record is lengthy, one can assume that the parent will be in and out of the child’s life spending periods of time in jail. One can also assume that the child will be exposed to the criminal element. [ 192 ] In the case at hand, those concerns are mitigated somewhat by the fact that since his conviction in 2010 he has only been convicted once and that was for driving while prohibited.

A.C. has not been convicted of any criminal offences for over 5 years now. [ 193 ] I am not satisfied that A.C.’s record alone is a basis for a finding that the children are in need of protection. [ 194 ] The Director also argues that A.C.’s use of illicit substances creates a future risk of physical and emotional harm. Although the Director did not articulate its concerns, it would be fair to assume they can be summarized as follows:

i. At some point the children could be exposed to A.C.’s impairment. This could be confusing and frightening for the children. Children, especially L.M.C. and O.M.C., need stable, and consistent caregivers to feel safe and develop in a healthy manner. Without such stability there would be a risk of emotional harm. ii. When A.C. is under the influence, there is a risk that he could become emotionally unavailable and neglectful. This could mean that the children’s physical needs would not be adequately addressed. It could also be confusing and frightening for a child and adversely impact their sense of security.

This would create a risk of emotional and physical harm. iii. A.C. could become aggressive when under the influence again creating a risk of emotional and physical harm. [ 195 ] The Director points out that the couple’s plan of care involves A.C. caring for the children while C.M. works, which heightens the possibility of harm. [ 196 ] In considering A.C.’s substance abuse, he has a prior conviction for possessing illicit substances. He failed the first drug test for the Ministry in 2014. The analysis reported a smorgasbord of hard drugs.

He self-reported to this court that he began using heroin shortly after the apprehension of L.M.C.. [ 197 ] It is troubling that A.C. continued to use illicit drugs during these child protection proceedings while recognizing that the return of his children were at stake.

This provides a gauge upon which to assess the strength of his addiction and his ability to overcome it. [ 198 ] C.M. said she was aware he was doing heroin a couple of times a week not because she witnessed it but because he told her. [ 199 ] A.C. testified he was reluctant to go on the methadone program because he heard it can be hard on a person’s bones and he already suffers from arthritis. However, in the spring of 2015 he was persuaded to enter the program. He said he has been doing well except for the occasional slip.

He said that his doctor is fine tuning his dose to prevent future relapses. [ 200 ] A.C. has been under the microscope of the Ministry for 4 years now but they have not witnessed him under the influence. He also attended these court proceedings in several lengthy blocks without any indications that he was impaired by drugs. [ 201 ] There is no evidence of him acting inappropriately after having consumed drugs. There is no evidence of him using drugs or being under the influence of drugs in the children’s presence.

Nor is there any evidence of any harm to the children as a result of the use of drugs. [ 202 ] At first blush A.C. appears to be a functioning addict. However, his life currently is not unduly complicated; he is without children in his care or a job. [ 203 ] Changes to routine could upset the cart.

Up to this point he appears to be able to function but with future stresses in life the full weight of the disease may fall upon. [ 204 ] As a functioning addict, there is also a risk that A.C. will eventually persuade himself that he is capable of taking care of his kids in a drug induced state. [ 205 ] The types of drugs that A.C. has used are extremely addictive and dangerous.

Without proper treatment it is doubtful that anyone would be able to maintain the balancing act of living a normal life, inevitably it will lead to a downward spiral. [ 206 ] Drugs like heroin, methamphetamine and cocaine, can all lead to impulse control problems and poor judgement. Addictions can become stronger over time. [ 207 ] I am told that at times A.C. will be the only primary caregiver of his children. It is clear that A.C. already suffers from impulse control issues, and can be very reactive.

Indeed these issues could be exacerbated by the use of drugs and the stresses of raising young toddlers. [ 208 ] This combination could lead to the perfect storm. Until A.C. establishes that he has gained control of his addiction, I agree with the Director that the L.M.C. and O.M.C. are in need of protection from A.C.. There is a real risk of physical harm and neglect occurring. [ 209 ] C.M. testified that if A.C. did not remain abstinent she would leave him and remove her children from the situation. I believe C.M. has very good intentions of protecting her children. However, based on Dr.

Elterman’s findings I remain concerned that she may not be able to properly identify a situation as posing a risk because of her conflicted loyalties to A.C.. [ 210 ] I am not confident that she will see situations involving the safety of her children through the same lens as a reasonable person. As Dr. Elterman points out there is a strong likelihood that she will rationalize A.C.’s behaviour and be reluctant to remove the children. [ 211 ] Even if I could have the confidence in C.M. to do the right thing, the future plan for the couple involves A.C. being the primary caregiver for the children.

C.M. would not be present to oversee the care of the children.

These children are virtually totally dependent on their caregivers and again, it is my view, that placing the children in the sole care of the father at this stage without adequate supervision would be placing the children at risk. 7 If so, What Test Applies in Determining Whether a Continuing Custody Order is Appropriate? [ 212 ] The Act provides for two different tests in deciding whether the Director has discharged its onus of proving it is in the best interests of a child that child remain in the continuing care of the Director. [ 213 ] If the Director proceeds directly to a protection hearing then, by s.41(2)(c), I “must not” order the child be in the continuing care of the Director “unless…the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child’s best interests to be returned to the parent”.

[214] Section 49(5) applies following a period of temporary custody. The

section provides that I may make a continuing custodyorder if I am satisfied "there is no significant likelihood that the circumstances that led to the child's removal will improve within areasonable time, or the parent will be able to meet the child's needs". [215] In closing arguments, counsel for the Director submitted that I should apply different tests for each child. He argued that withrespect to L.M.C. the application must proceed pursuant to

section 49 but with respect to O.M.C. section 41(2). I do not agree. [216] Earlier in my reasons I found that there was no finding of protection in relation to O.M.C. made on January 17, 2014. In factsuch a finding was urged upon me by counsel during this hearing.

Rather what occurred was a temporary custody order made byconsent without a finding or acknowledgment of a need of protection. [217] Even if I am wrong and finding of protection was made in January 2014, O.M.C. has been in the temporary custody of theDirector for more than 18 months awaiting the determination of this matter and section 49(5) is the more appropriate test. In BB,Madam Justice Huddart explained that the less stringent test set out in section 49(5) makes the better sense where the child has been inthe temporary custody of the Director.

She writes at para 37: With this understanding of protection proceedings, a less stringent test for a continuing custody order following a period of temporarycustody makes good sense and fits well within the child protection regime structured by the Act. A s. 41(1) order is made early inprotection proceedings before parents have been given the opportunity to obtain services designed to address the concerns that led totheir child’s removal.

By the time an application for continuing custody under s. 49(5) can be made, the parents will have had at leasttwo months in which to address the protection concerns, and often a year or more.

It necessarily follows that the court will haveconsiderably more evidence from which to determine the child’s needs and the parents’ capacity to meet them at the time of removal,any changes in those needs and capacity, and the potential for future change. [218] I appreciate that this may be perceived as handing the Director a tactical advantage but as will become apparent in my reasonslater, the results would have been the same regardless of the test I apply. 8 What is the Onus and Standard of Proof in Determining Whether a Continuing Custody Order is Appropriate? [219] In BB Madam Justice Huddart points out that because the ultimate goal of any child protection proceeding is to determine whatis in the best interests of the child, any discussion with respect to onus is displaced.

She writes at paragraph 35: “With that understanding of the disposition aspect of a protection proceeding, any discussion of onus or burden of proof is misplaced. This aspect of the proceeding should not begin with a general rule that a party will be unsuccessful unless he or she satisfies a specificburden of proof. The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden ofdemonstrating the most appropriate care plan for a child.

Once the Director has established on the balance of probabilities that a child isin need of protection and the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess theevidence before it to determine the appropriate care arrangement within the strictures imposed by the Act. Until a continuing custodyorder is made, the duty to determine what care arrangement is most appropriate for a child lies with the court, not with the Director or theparents, unless they agree.

No general rule should deflect the court’s attention from the necessary inquiry into the child’s needs and theparents’ ability to meet them, with such support as the community is able to provide. As McLachlin J. (as she then was) wrote of aninquiry into the best interests of a child directed by the Divorce Act, so here, the inquiry into the appropriate disposition after a finding achild is in need of protection, "should not be undertaken with a mindset that defaults in favour of a preordained outcome absentpersuasion to the contrary”: Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 at para. 44.” 9 Is a Continuing Custody Order in the Best Interests of the Children? [220] The Director takes the position that a continuing custody order is called for on the facts, pursuant to section 49(5) because A.C.has not dealt with his drug addiction and his anger issues, the combination of his impulsive and reactive disposition places the children atrisk of physical harm and neglect. [221] The parents on the other hand say that A.C. has taken charge of his addiction and control of his behaviour and it would not be inthe best interests of the children to be placed in continuous care of the Director and placed for adoption.

They point to A.C.’s enrolmentin the methadone program, willingness to go to residential treatment and taking anger management counselling as an indication that theyhave taken the necessary steps to alleviate any concerns. [222] At this stage, any reasonable person would understand the need for verification of A.C.’s claim that he can abstain from drugsnow and in the future before he is entrusted with the care of L.M.C. and O.M.C.. [223] It is recalled that section 49(5) prescribes that I may make a continuing custody order if: • there is no significant likelihood that the circumstances leading to removal will improve within a reasonable time. [224] A.C. clearly has behavioural issues that need to be addressed.

His actions over the years demonstrate personality traits thatinvited the scrutiny of the Ministry and this court. In an evaluation of whether any or all of them amount to a need of protection, I gavecareful consideration to the degree and perspective, all viewed in the context of the primary purpose of the Act being to protect childrenfrom harm. [225] It is true that both parents see themselves as victims of the Ministry. They view themselves as being much more knowledgeableas to what is best for them as far as programming and treatment.

They have a level of arrogance that leads them to believe that they arebest able to assess what is best for them and their children going forward. They have withdrawn from the Ministry and remainuncooperative in taking programs that will only serve to benefit their family. [226] Ministry representative, Linda Mills, testified that the Ministry did the one drug test. She said they did not do further tests

because they felt without treatment it was unlikely that A.C. would provide clean results. [ 227 ] The Ministry did not set out as an expectation that he undergo drug and alcohol counselling or residential treatment.

The only expectation with respect to drugs was that he provides a hair sample suitable for analysis. [ 228 ] I cannot fault the Ministry for their waning enthusiasm to devote scarce resources like residential treatment given the distrust and lack of cooperation they were confronted with. [ 229 ] It was not lost on A.C. or C.M. that the Director was concerned about his use of drugs and that before returning the children to their care they wanted some proof that his addictions were under control. Most in that situation would have pursued treatment on their own without being asked. A.C. did not.

He said that he did not because of the ongoing court proceedings. [ 230 ] I accept that it would have been difficult for A.C. to admit he needed help. In his eyes, such an admission would have solidified in the Director’s mind that the children ought not to ever be returned to his care. [ 231 ] Both A.C. and C.M. appeared credible when they testified about A.C.’s ongoing struggles with his addictions. He was candid when he said that he has slipped a few times on the methadone program. [ 232 ] I appreciate that both children have been in the care of the Ministry for essentially their entire lives.

Over 3 years have elapsed since L.M.C. was apprehended. They have settled well in their foster home. There is a strong tendency to leave well enough alone and not disrupt them again.

However, the length of time it takes to process a case can never be a justification for continuing to separate a family. [ 233 ] After considering all of the evidence I am satisfied there is a significant likelihood that with the proper support A.C. can overcome his addictions and the risk of him not reacting appropriately in stressful situations or neglecting his children while they are in his care could be adequately minimized. [ 234 ] If he does not gain control of his addiction, his children will never be returned to him.

However, I am prepared to give him one last chance to prove to me, the Director and his children that his insight into his addiction is genuine, that he can overcome it, and be a suitable parent for his children. [ 235 ] In addition A.C. expressed a willingness to undertake anger management counselling. I am going to hold him to this promise. [ 236 ] This will require the parents to fully cooperate with the Ministry.

I hope that my objective and unbiased opinion will provide them with the impetus they need to move forward in the right direction. [ 237 ] Based on all the foregoing I intend to dismiss the Director’s application for a continuing custody order in relation to both children and pursuant to section 49(7)(

a) order that the children be returned to the parents under the supervision of the Director for period of 6 months.

However, before doing so, I will want to hear from the parties regarding appropriate supervision terms. [ 238 ] Although I agree that the Ministry could have handled things differently at times, to the extent that counsel for the parents called into question the good faith or sincerity of those who have tried working with this couple, it is important to say that the evidence does not support this characterization. [ 239 ] However, the relationship between the parents and the Ministry was seriously fractured in October 2013.

It is apparent that an important factor in a successful outcome to this last chance order is a high level of trust between the parents and the social worker assigned to the file. Without being critical of those who have worked with this couple, I think it may be time, if it is feasible for the Ministry, to assign a new team to work with this couple. The parents need to be given a fresh start to show they ca

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