Director v. A.B. and M.B.1 Date:, 2013 BCPC 224

Citation: Director v. A.B. and M.B.1 Date: 20130821 2013 BCPC 0224 File No: F65042 Registry: Nanaimo 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: B.B. , born [DOB] M.B.2, born [DOB] M.B.3, born [DOB] B.B.2, born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: A.D. and M.B.1 PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Director: M.L. Greves

Counsel for the Parents: C.C. Rivers Place of Hearing: Nanaimo , B.C. Dates of Hearing: August 13, 14, 2013 Date of Judgment: August 21, 2013 The Application [ 1 ] The Director applies, under section 49(5) of the Child, Family & Community Service Act RSBC 1996, c 46 (the “ CFCSA ”), for a continuing custody order in relation to the children of A.D. (“the Mother”) and M.B.1 (“the Father”), the children being B.B.1 (age 12), M.B. 2 (age 9), M.B.3 (age 8) and B.B.2 (age 6).

The children were apprehended by the Director on December 28, 2011, and have been in the temporary custody of the Director, and in foster care, since that time. The Evidence [ 2 ] The Mother is a member of the C.H.C. First Nation, whose traditional territory is in Saskatchewan. The Father is not of First Nations ancestry. The Father’s extended family lives in the Nanaimo area. The Mother’s extended family lives in Saskatchewan. [ 3 ] The Father is a heroin addict. Mr. Rivers said that it would be unfair to describe the Mother as an alcoholic because no doctor has pronounced that diagnosis.

It is clear from the evidence that alcohol is a problem for her, and has rendered her incapable of caring for her children on at least one occasion. She has no family or friends in Nanaimo. She suffers from depression, and takes anti- depressant medication prescribed by a psychiatrist.

The Father and the Mother have each, on several occasions over a period of years, participated in substance abuse treatment programs, experienced periods of abstinence and relapsed. [ 4 ] The Director became concerned with this family in February, 2010, when the Director received an allegation that the parents’ substance abuse problems were causing them to neglect the children. Ms. Valerie Johnstone is a social worker employed by the Director, whose job is to investigate such allegations and to advise the Director on the subject of remedial action. She was assigned to this case. [ 5 ] Ms.

Johnstone spoke with each of the parents in March, 2010. The Mother acknowledged struggles with alcohol and depression. The Father acknowledged that he had been a heroin addict, but reported that he had been clean for about a year and that he was participating in a methadone program. Both parents were cooperative and agreed to attend counselling programs. Ms. Johnstone also spoke with the two elder children. M.B.2 expressed concern about verbal arguments between his parents. No other material concerns were expressed. Ms.

Johnstone recommended that no further action be taken at that time because the parents were cooperative and had agreed to participate in appropriate counselling programs. [ 6 ] The Director received a second report from an outside source in September, 2011. It was alleged that B.B.2 had suffered a burn on his face from a cigarette and that the Mother had kicked M.B.3. Ms. Johnstone investigated. She concluded that the cigarette burn had been accidentally inflicted when B.B.2 ran around a corner and into a burning cigarette, and that the allegation that the Mother had kicked M.B.3 could not be substantiated.

She made no recommendation to the Director in relation to this complaint because of the intervening events of November 20, 2011, described below. [ 7 ] In November, 2011, the Mother discovered that the Father had resumed heroin use. On the evening of November 19, the Father was out on the town, as he had been frequently in preceding weeks. The Mother drank most of a bottle of vodka and passed out, leaving the children effectively unattended. The Father came home about 7:00 a.m. They quarrelled and exchanged punches. The Mother was arrested, charged with assault and released on a promise to appear.

The police expressed to Ms. Johnstone the opinion that “... the children are safe at present”. [ 8 ] Ms. Johnstone interviewed the Mother and the Father, who admitted the events described in paragraph 7. They told Ms. Johnstone that the incident in question was the only occasion on which they had been physically violent with each other. There is no evidence to contradict that assertion. Ms. Johnstone interviewed B.B.1 and M.B.3. B.B.1 said that he was worried about his father, who would go out three or four times each week and come home looking sick and suffering from stomach cramps.

He feared that his father would be killed in an auto accident. M.B.3 said that her father was out every night. She feared that the police would take her family away. [ 9 ] On December 8, 2011, Ms.

Johnstone, the Father and the Mother agreed to a “safety plan”, on the following terms: a. the Father would have supervised access only to the children, on terms to be approved by the Director; b. the Mother would ensure that the children did not witness any verbal or physical confrontations between the Mother and the Father; c. the Mother would call the police if the Father were to attend at the family home in breach of “a” or “b”. [ 10 ] On December 20, 2011, the Director received an allegation that the Father had sexually abused one or more of the children. Ms.

Johnstone arranged a meeting with the Father and the Mother for December 21, 2011. They did not attend the meeting. Because of ensuing events (described below), Ms. Johnstone did not investigate the allegation of sexual abuse. That allegation remains unsubstantiated. [ 11 ] On December 29, 2011, the Director received another report, summarized in the Director’s file notes as follows:

...[the Mother] considering suicide; the Mother and [the Father’s sister-in-law] fighting; [the Mother] and children being kicked out of home; no where to go as shelter is full. Allegations that paternal aunt ... and GM [grandmother] using speed. Ms. Johnstone interviewed the Mother, who confirmed that she had been engaged in a physical confrontation with the Father’s sister-in- law, and that the Father’s mother had intervened to separate them. The Mother reported that she had been assessed at the hospital, which had released her on being satisfied that she was not a suicide risk.

However, she had no friends or family in Nanaimo and nowhere to live. Ms. Johnstone put her in touch with a program administered by local First Nations which provided her with emergency shelter and counselling services. Ms. Johnstone recommended that the children be apprehended and taken into care. The Director accepted that recommendation. The children have been in foster care, under the authority of a series of temporary custody orders, since that time. [ 12 ] Ms. Johnstone said that her involvement with the family ended when she made her recommendation to the Director in December, 2011. Ms.

Johnstone handed the file to Mr. Lawrence Armstrong, another social worker employed by the Director. That was done because Ms. Johnstone’s role is investigation and Mr. Armstrong’s role is ongoing care. [ 13 ] Immediately after the children were taken into care, they were examined by a medical doctor. He found no reason to suspect any previous abuse or neglect of any of the children. He described: a. B.B.1 as a “very pleasant boy” in good physical health; b. B.B.2’s behaviour as “good”, and B.B.2 as being in good health except for problems with asthma and vomiting; c.

M.B.2 as a “very nice man” in good physical health; d. M.B.3’s behaviour as “good”, and M.B.3 as being in good health, except for some eczema and head lice. [ 14 ] There is a limited supply of foster homes in the Nanaimo area. No suitable foster home was available, so the children were placed in a foster home which had been approved by the Director for teenagers, but not for young children. [ 15 ] Soon after the children were placed in the foster home, the foster parents reported extreme behaviours by BB. 2. He would kick holes in the walls and cry for hours.

He refused to leave the house or to attend school. [ 16 ] On May 16, 2012, Mr. Armstrong passed the file to Ms. Lambert, another social worker employed by the Director. I was not told why that was done, but Ms. Lambert said that Mr. Armstrong “left very abruptly” and that his file notes were “minimal”. Ms. Lambert did not attend the meeting in January when Ms. Johnstone briefed Mr. Armstrong. She said that she was not given the opportunity to meet with Mr. Armstrong about the file, although he told her that the issues were: (

i) drugs and alcohol; and (ii) whether the children would be safe with their father. Ms. Lambert did not review the file because of her confidence in Mr. Armstrong’s judgment. She said that, as far as she knows, the only family violence witnessed by the children was the confrontation between the Mother and the Father’s sister-in-law, and that she does not know whether confrontations between the Father and the Mother were frequent because “I am not familiar with the family”. [ 17 ] Ms. Lambert met with each of the children soon after she assumed conduct of the file. She describes them in the following terms: a.

B.B.1 is 12 years old, gentle, curious, soft-spoken and shy. He is, in Ms. Lambert’s judgment, the sibling most emotionally affected by the apprehension of the children. He is given to adult conversation, and wants to know why his mom isn’t fighting for him and why his dad won’t give up his addiction. He wants to be with his mom. He met with independent legal counsel at Ms. Lambert’s request. After receiving the advice of counsel, B.B.1 signed a form consenting to be in the permanent custody of the Director, as permitted by

section 60 of the CFCSA . b. M.B.2. is 9 years old. He is very social, makes friends easily and is a bit of a “jokester”. He is not inclined to adult conversation. He wants to live in Nanaimo “forever”, with either his mom or his foster mom. He has not been sleeping well lately. His academic performance has improved dramatically since he was taken into care. c. M.B.3 is 8 years old. She is socially skilful, pleasant and well-mannered. She is a gifted learner, whose grades are at the top of her class. She is a perfectionist who tends to mother her brothers. d. B.B 2 is 6 years old, and about to enter grade 1.

His oral hygiene was poor when he was taken into care. He suffers from asthma in the winter, and has nut allergies for which he carries an epipen. His kindergarten reported no behavioural issues and good math skills. He is very affectionate and thrives on one-on-one attention. He avoids discussion of “going home” and says that he dreams of a time when his family is together again. [ 18 ] On June 6, 2012, the Mother entered a residential treatment program for alcoholics. [ 19 ] On June 11, 2012, B.B.2 reported to his daycare worker that: (

i) the foster parents had locked him in the garage with very loud music playing so that the neighbours could not hear him screaming, and that they watched him on a surveillance camera while he cried; and (ii) the male foster parent had held his head under water. The daycare worker passed on the report to Ms. Lambert. She investigated, and concluded that the first complaint was justified, although the latter might be innocently explained by a bathing incident. She concluded that the foster home was not appropriate for the children, and set to work to find an alternate placement for them.

She said that “... it couldn’t happen fast enough for my liking”. However, despite her efforts, an alternate foster home was not found until October, 2012. [ 20 ] On July 16, 2012, the Mother completed her residential treatment program. She met with Ms. Lambert on the following day. Over the ensuing 6 weeks, Ms. Lambert and the Mother developed a plan, under which the Mother would return to the reserve of the C.H.C. First Nation in Saskatchewan and establish a home there. Ms. Lambert offered assurances that the children would be returned to

her in Saskatchewan when the Director was satisfied that she had a suitable home and suitable supports from community agencies in Saskatchewan to allow her to properly care for the children. During the six-week interval, there was continuing tension because one element of the plan was Ms. Lambert’s insistence that the Father not accompany the Mother to Saskatchewan. The Mother was reluctant leave the Father. The Mother’s departure was planned for August 30, 2012. The Father was arrested on the evening of August 29, and the Mother departed as planned. [ 21 ] On October 9, 2012, the Mother telephoned Ms.

Lambert from Saskatchewan to report that the Father had followed her to Saskatchewan and was living there. Ms. Lambert replied that the Father would have to be “clean” (i.e. free of drugs) for 18 months before the Director would allow him to see the children. [ 22 ] In mid-October, Ms. Lambert received a report from the children’s school that the children were walking to school unattended, which was dangerous for B.B.2, who is considered to be vulnerable to approaches by strangers. Ms.

Lambert was particularly concerned because she had previously instructed the foster parents that the children were not to be allowed to walk unaccompanied to school. Three consequences followed from this sequence of events: a. The children were moved to a new foster home on October 16, 2012. They have been in that home since that time. b. The first foster home was the subject of an investigation by another social worker, who advised that the foster parents should not foster young children and should take a parenting course in relation to their own children. c.

Young children are no longer placed in that home. [ 23 ] On November 26, 2012, the Father telephoned Ms. Lambert and told her that the Mother was drinking heavily. [ 24 ] November 27, 2102, the Father was in Nanaimo and had a visit with the children, supervised by a social worker. He was sweating heavily, and appeared to be undergoing heroin withdrawal. The social worker reported that the Father was very nurturing and loving with the children as he informed them of the death of his father. [ 25 ] On December 3, 2012, the Mother returned to Nanaimo to reunite with the Father. [ 26 ] During a meeting with Ms.

Lambert on February 19, 2013, B.B. 1 said “I know my mom has chosen my dad instead of us kids”, and said that he is coming to terms with the idea that he may never live with his parents again. [ 27 ] In March, 2013, the Mother asked Ms. Lambert to identify steps which she could take to induce the Director to return the children to her care. Ms. Lambert replied by memorandum dated March 6, 2013, listing 23 steps which the Director would require her to take. Two of those were that she terminate her relationship with the Father and have no further contact with him. At about the same time, Ms.

Lambert instructed the Mother that she was to decline to answer questions from the children about when they might expect to return to her care or when they might expect to see their father again. I found that to be a surprising instruction, and said so. Ms. Lambert explained that she wanted the Mother to focus on “happy” subjects when speaking with the children, and that Ms. Lambert wished to be the sole channel of communication with the children on the subject of family reunification. [ 28 ] On March 31, 2013, the case was re-assigned from Ms. Lambert to another social worker, Ms. Chalmers.

The change was due to a reduction in staff at the Director’s office. Ms. Chalmers had greater seniority than Ms. Lambert, and “bumped” her from the file. Ms. Lambert is to resume conduct of the case in August, 2013. [ 29 ] The Director has a policy, developed in consultation with First Nations, to the effect that children of First Nations descent who have been apprehended will be placed in homes in their First Nations community as soon as a suitable home can be identified and made available. In this case, the Director has made enquiries of the C.H.C.

First Nation in an attempt to find a suitable home for the children, preferably with a member of the Mother’s extended family. However, no such home has yet been found. [ 30 ] The Mother is now pregnant with a fifth child by the Father. Missing Items of Evidence [ 31 ] During the course of the hearing, I expressed my concern that I am being asked to decide an important issue with insufficient information. I remain deeply concerned about that.

The following are items of evidence which would be helpful. [ 32 ] In many cases involving child custody and access, I am provided with a “Views of the Child Report”, prepared by a social worker who has been trained in the delicate art of interviewing children. The purpose of the report is to provide the children with a way to communicate their experiences, perceptions and priorities to the court without subjecting the children to external pressures during the interview process. I find such reports to be very helpful.

Many children, even at a very young age, have clear insights about the family situation, and have well-informed, carefully-considered views about how that situation can best be managed. I believe that the children’s voices should be heard, because they are the ones who will be most affected by my decision. In this case, all four children are old enough to be interviewed. I have not been provided with such a report in this case. It is not my impression that Ms.

Lambert’s interviews of the children, important as they are, were structured, or explored matters in depth, in the way that interviews are conducted when a “Views of the Child Report” is to be prepared. [ 33 ] The children have lived their entire lives in a multi-cultural urban environment. It is reasonable to think that they have close friends in Nanaimo. B.B.1is of an age when his peers are of increasing importance. M.B.2, M.B.3 and B.B.2 are approaching that age. A transition to a rural reserve in Saskatchewan with an entirely different culture is likely to present challenges for them.

Such a transition should not be imposed upon them without consulting them first. [ 34 ] I have relatively little information about the Mother’s mental health, her difficulties with alcohol or her parenting skills. In particular, no medical professional has provided any assessment of her. She attended the hearing, but did not give evidence. Because she

remained silent throughout the hearing, I have no way of assessing her personal qualities. [ 35 ] I have been told that the Father is presently in jail. He did not attend the hearing. I have not been told: a. whether he has been convicted of an offence or is in custody pending trial; b. what offence(

s) he is charged with, or has been convicted of; c. what his release date or trial date is; d. whether he has a criminal record, or for what offence(s). Each of those facts is clearly material to the decisions which I must make. I asked Ms. Lambert whether she could inform me on those subjects. She replied that she knew no more than I do. [ 36 ] I have been told almost nothing about the C.H.C. First Nation, or about the resources which would be available to the Mother and the children in that community.

It is apparent that the Mother will need a wide range of community services and supports if she is to adequately care for the children. I have no way of assessing whether those resources are available on the reserve of the C.H.C. First Nation. [ 37 ] Neither the Director nor the Mother has put forward any plan for the care of the children. As far as I can tell, the Director’s plan is to leave them in their present foster home unless and until the C.H.C. First Nation can come up with a better plan. Given that the move to the C.H.C.

First Nation has been in slow-motion progress for more than a year, I cannot be optimistic about it. The Mother has not told me, in person or through her counsel, where she proposes to live, or with whom, if the children are returned to her, nor how she proposes to provide for their needs. Analysis [ 38 ] There is no evidence that any of the children suffered in any material way from any abuse or neglect while they were in their parents’ care.

B.B.2 has displayed some extreme behaviours since he was taken into care, but the cause of his distress has not been identified, and there is no evidence to show that he displayed similar behaviours before he was apprehended. I observe that he is reported to have done well in kindergarten, when he was in the care of his parents. The other children appear to be physically and emotionally healthy. [ 39 ] On December 29, 2011, Ms. Johnstone completed a “Presentation Form”, in which she set out the grounds upon which the Director sought temporary custody of the children.

In the “Presentation Form”, she identified two, and only two, grounds on which the Director relied in support of the application. Those were: (

i) that the children had been, or were likely to be, physically harmed by the parents; and (ii) that neglect by the parents was likely to cause physical harm to the children. The evidence at the hearing provided no support for either allegation. Mr. Rivers submits that the Director has failed to prove the case alleged, and that the Director’s application should be dismissed on that ground alone. I do not accept that submission. In a commercial case, it may be appropriate to confine a party to its pleaded case. In a case involving the safety and well-being of children, the court’s primary duty is to the children.

Pleadings filed and arguments advanced by the parents and the Director always provide helpful guidance, but, in the end, my job is to do the right thing for the kids. As will be apparent, in this case, I do not think that either the Director or the parents have put forward suitable options for the children. [ 40 ] The Director seeks a continuing custody order in relation to these four children. The legal effect of a continuing custody order is defined by

section 50 of the CFCSA . If the order is granted, the Director will become the sole guardian of the children. The Mother and the Father will cease to be guardians of the children. Section 40(1) of the Family Law Act SBC 2012, C 25 provides (underlining added): Only a guardian may have parental responsibilities and parenting time with respect to a child.

Section 41 of the Family Law Act defines “parental responsibilities” to include ( inter alia ): ... having day-to-day care, control and supervision of the child ... ... making decisions respecting where the child will reside ... ... making decisions respecting with whom the child will live and associate ...

If I make a continuing care order, neither the Mother nor the Father will be able to make any of those decisions. [ 41 ] I foresee many practical difficulties if I were to make a continuing care order and if the Director were to follow through with the Director’s expressed intention to move the children to the reserve of the C.H.C. First Nation. It is not clear to me how the Director could, in that circumstance, fulfil the Director’s duty, imposed by

section 43 of the Family Law Act , to “... exercise his or her parental responsibilities in the best interests of the child[ren] ...”. [ 42 ] I find, in the Family Law Act , no authority for the Director to delegate that responsibility.

Section 92 of the CFCSA authorizes the Director to delegate “... any or all of the Director’s powers, duties or functions under this Act ...” (underlining added), but the duty with which I am concerned does not arise under the CFCSA . That may be a mere lacuna in legislative drafting, but I am not prepared to assume that it is. I point out that

section 40 of the Family Law Act provides that only a guardian may exercise parental responsibilities. It follows, in my view, that the authority to exercise parental responsibilities may not be delegated. So, parental responsibilities could be exercised in Saskatchewan only if someone in Saskatchewan were appointed as the children’s guardian. If someone in Saskatchewan is

to be a guardian of the children, a continuing care order cannot be made (because the effect of the order is to make the Director the sole guardian). [ 43 ] I am troubled by the following decisions made by Ms. Lambert: a. to instruct the Mother to refrain from discussing reunification plans with the children. It is, in my judgment, important that the children be free to express themselves freely to their parents on the subject of recent events and plans for the future, and to receive honest responses from their parents on those subjects. The children know that this is not a happy time.

To confine their parental communications to “happy” subjects is to deny a critical reality which must occupy the minds of the children daily. That can only be confusing and frustrating for them. b. to instruct the Mother that she is to have no contact with the Father and that the children will not be returned to her until she breaks off her relationship with him. Those may be necessary steps, but Ms. Lambert lacks sufficient information to conclude that they are. The only things she knows about the Father are: i.

He is a heroin addict, who has experienced extended periods when his addiction was in remission and he was participating successfully in a methadone treatment program. ii. He had several loud arguments with the Mother. She does not know that the children witnessed any of them. iii. He is in jail. She doesn’t know what for, or for how long. iv. The children appear to have a strong attachment to him, and he presents as a loving father during supervised visits.

It may be that the risks inevitably attendant upon his addiction are too large to allow the Father a role in his children’s life, or that some aspects of his criminal record may lead to that conclusion. However, that conclusion should not be drawn unless the available information suggests that the risks outweigh the emotional harm which the children will suffer if their relationship with their father, to whom they have strong attachments, is broken off. Ms.

Lambert’s enquiries to date have been insufficiently detailed to allow her to reach an informed conclusion on the question. c. that the appropriate placement for the children is on the reserve of the C.H.C. First Nation. Ms. Lambert has very little information about the Mother’s extended family or her relationship with them, about the support services which might be available for the family on the reserve or about living conditions there. It may be the best place for the children, but that decision should not be taken until much more information has been gathered.

I fear that, in this case, the Director’s policy of placing aboriginal children with their First Nation community has been implemented without sufficient consideration of the individual circumstances of these children. [ 44 ] I am not in a position to assess whether the best interests of the children would be best-served by making a continuing custody order. That may or may not be so. I do not have enough information about the personal circumstances of the parents to have confidence that the children would be safe and well cared-for if I were to order them to be returned to the Mother.

Shortly put, both the Director and the Mother have more work to do before any long-term order should be made. The only appropriate order at this stage is that the children remain in the temporary custody of the Director until February 15, 2014. I hope that, in the interval, a better-considered plan for the future of these children can be developed.

Disposition [ 45 ] I will be seized of this case. [ 46 ] I direct that: a. the Director’s application for a continuing custody order be adjourned generally; b. a “Views of the Children” report be prepared by a social worker who has had no previous role in relation to this family; c. the children remain in the temporary custody of the Director until February 15, 2014; d. counsel arrange a date for a one-day hearing between December 1, 2013 and February 15, 2014; e. a copy of these reasons and notice of the hearing date be served upon the Father not less than 30 days before the hearing date.

Counsel should inform me if the Father is likely to be in custody on the new hearing date. In that event, I will direct the sheriffs to arrange for his attendance at the hearing. August 21, 2013 ___________________ T. Gouge, PCJ