Director v. S.J. and L.J. Date:, 2015 BCPC 122

Citation: Director v. S.J. and L.J. Date: 20150430 2015 BCPC 0122 File No: F68787 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 CHILD: N.J. , born DOB BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.J. PARENT AND: L.J. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Director: Michelle Greves Counsel for the Mother, S.J.: Frank Williams and Laura Wansbrough Counsel for the Father, L.J. : Peter Gibb Place of Hearing: Nanaimo , B.C. Dates of Hearing: October 1, 2 and 3, 2014 and January 22, 2015 Date of Judgment: April 30, 2015 Introduction [ 1 ] The Director ( the “Director”) under the Child, Family and Community Service Act (the “ Act ”) presently seeks a six month supervision order pursuant to

section 29.1 of that Act against the Mother, described below, and for a six month protective intervention order pursuant to

section 28 of the Act against the Father, described below.

These applications are both in connection with the female child of their relationship (the “Child”) namely: N.J., date of birth DOB [ 2 ] The Child is presently just over two years of age and was approximately a year and half at the commencement of the proceedings before me. [ 3 ] The parents of the Child (the “Parents”) namely, S.J. (the “Mother”) and L.J. (the “Father”) both oppose the Director’s applications. [ 4 ] The Father is a registered sex offender having being convicted for sexual offences against three separate young female family members going back several years.

As part of his criminal sentences he has served periods of actual incarceration and has received sex offender treatment. Facts and Background Family Background

Summary [ 5 ] The Ministry of Children and Family Development (the “Ministry”) became involved with the Parents in January of 2013 just after the Child’s birth. [ 6 ] The Mother, age 30, is of aboriginal heritage and is a member of a First Nations band on the east coast of Vancouver Island.

The Child is also a member of that First Nations band. [ 7 ] The Father, age 43, is also of aboriginal heritage and is a member of a First Nations band located on the west coast of Vancouver Island. [ 8 ] The Parents have been in a relationship since March of 2010 and lived together for extended periods up to the birth of the Child. Much of that time together occurred while they were residing in Port Alberni, B.C. [ 9 ] The Father on one hand and the Mother and Child on the other, presently live separately off of reserve, close to each other in the same neighbourhood in Nanaimo B.C.

Ministry Involvement [ 10 ] Social workers attended the Mother’s home on January 24, 2013 after learning that the Father was a registered sex offender and the Mother and Father shared the same address in Nanaimo. The Mother was living with the Child. The Mother admitted to the attending Social Workers Klaws and Guthrie that she was in a relationship with the Father but denied they were residing together.

This was contrary to reports received by the Ministry and was also contrary to the observations of the interior of the residence made by the social workers. [ 11 ] During the January 24, 2013 home visit, the social workers discussed the Ministry’s child protection concerns relating to the Father’s criminal convictions for sexual offences against young children.

The social workers were concerned that the Mother may not be fully conversant with the details of these offences and concluded that she appeared to be minimizing the seriousness of these child protection concerns. [ 12 ] Social Worker Guthrie met with the Father to discuss the protection concerns relating to his past sexual offence convictions. The impression gained by the Ministry officials at the initial meetings was that the Father was not entirely forthcoming when presented with the opportunity to discuss these convictions and the treatment that he had received to deal with his serious offending behaviour.

Additional information was sought from the Father. [ 13 ] The Father was told by the social workers that the Ministry would not permit the Father to reside with the Mother and the Child. He admitted his relationship but denied residing with the Mother. [ 14 ] The Father agreed to provide the Ministry with collateral information regarding his completed programs and treatments in which he had participated following his sexual offence convictions. As time passed following the initial contact with the Father and the

Mother, the Ministry officials concluded that the Father was continuing to be resistant and was not forthcoming in that regard. This was very concerning for the Ministry. Background of Court Proceedings Initial Proceedings [ 15 ] On February 18, 2013 the Ministry was notified that the Father was in the process of bringing on an application under the Family Relations Act (“ FRA ”) for an order for access to the Child. The Ministry also learned that the Mother was supportive of the Father’s application, including the Father “living in the home”. [ 16 ] The Director believed that the Child was in need of protection. Those protection concerns were based on the provision of

section 13 (

b) of the Act which says protection for a child is needed where the child has been or is likely to be sexually abused or exploited by the child’s parent . [ 17 ] Therefore the Director sought to obtain a supervision order without removal of the Child from the Mother. [ 18 ] At the presentation hearing held on March 18, 2013 an order was made pursuant to s 33.2 of the Act (the “March 2013 Order”) that the Director supervise the Child’s care pending a protection hearing. [ 19 ] In the March 2013 Order, five main conditions were imposed by the court on the following supervision terms: (1) [The Mother] must allow the Director or the Director’s Agents to visit and inspect the home and meet directly with [the Child] at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the Child; (2) [The Mother] will ensure that [the Father] does not reside at the same residence as the Child; (3) [The Mother] will only allow [the Father] supervised access to the Child as approved by the Director; (4) [The Mother] will not change residences without prior approval of the Director; (5) [The Mother] will not to allow any other persons to reside at her home without the prior approval of the Director. [ 20 ] The two further provisions of the March 2013 Order stated that the Director must remove the Child for failure to comply with the terms in conditions 1, 2 and 3; it also stated that the Director may remove for failure to comply with terms in conditions 4 and 5.

The Mediated Agreement [ 21 ] On October 25, 2013 the Mother, the Father and the Director attended a mediation with Ministry representatives and thereafter entered into an Agreement Made at Mediation (“the Mediated Agreement”) in written form.

Social Worker Michelle Sharun, who had assumed conduct of the matter in August of 2013, signed on behalf of the Director as the Director’s delegate. [ 22 ] The Mediated Agreement contained important provisions for the following: access for the Father; the Mother’s supervision of the Father’s access time; the Father spending time at the residence of the Mother and the psychological evaluation of the Father. [ 23 ] With respect to access to the Child by the Father, it was agreed that such access with the Child must be supervised by a Ministry approved supervisor, and further required that when the Mother learned that access was to take place she was to contact the social worker who had conduct of the file by telephone or by text messaging and provide that information.

If there was no verbal response then the telephone message or text message was deemed to be sufficient.

Failure to send the telephone or text message was deemed to be access in violation of condition 3 of the supervision order. [ 24 ] In order to transitions the access such the Mother would eventually be able to supervise the Father’s access time with the Child the Mediated Agreement states as follows: THAT if [the Father] engages with a Ministry of Children and Family Development approved counsellor, commencing as soon as is practicable, and does not miss appointments, except with a reasonable explanation; AND THAT if [the Father] satisfactorily articulates his risks and triggers, and how he is addressing these through his counselling; and THAT if [the Mother]: (

a) takes the Little Warriors Prevention Workshop, or a Ministry approved alternative, as well as attends weekly one to one counselling through NARSF Programs; AND (

b) satisfactorily articulates the risks that [the Father] presents to the Social Worker; THEN

THAT upon the Parents meeting the above expectations, the Ministry of Children and Family Development will allow [the Mother] to supervise [the Father’s] access in the community no later than January 15, 2014 providing that: (

a) The Social Worker is notified at least two days in advance; (

b) Access is approved in advance by the Ministry of Children and Family Development; (

c) Access is scheduled at a specific time. [ 25 ] Under the heading “[The Father] Spending Time at the Residence of the Mother” it states that the Father is entitled to spend a maximum of one overnight visit per week at the Mother’s home if and only if the Child was staying with a caregiver at an alternate location. The caregiver has to be a person not previously ruled out by the Ministry as being unsuitable. Furthermore, the Mother is obliged to telephone or text the Social Worker prior to the overnight visit in order to advise of that overnight visit.

The same provision applies that no verbal response from the Social Worker deems the telephone message or text message to be sufficient notice from the Mother. [ 26 ] Specific provisions are made such that the Ministry will only approve the Father having access at Sunday church service, cultural events and at Christmas provided an approved supervisor is present during that access time. [ 27 ] Under the provision entitled “Psychological Evaluation of [the Father]” it provides as follows: THAT [the Father] will continue to work with the Ministry of Children and Family Development to obtain a psychological evaluation; AND THAT if the evaluation is to take place in Nanaimo, BC it will be conducted through NARSF Programs; THAT if the evaluation is to take place in Port Alberni BC then the Ministry of Children and Family Development shall apply for travel expenses.

The Parties acknowledge that these expenses are unlikely to be approved. [ 28 ] The final provision contained in the Mediated Agreement indicates that it is to be filed with the court and that the parties would enter into a

section 60 consent order for a three month supervision order on agreed terms. [ 29 ] On October 28, 2013, as contemplated by the Mediated Agreement a three month supervision order (the “October 2013 Order”) was made pursuant to s 41(2.1) of the Act without the removal of the Child and with the consent of the Parents pursuant to s 60 of the Act . That order was on the same terms as the March 2013 Order.

Further Court Proceedings [ 30 ] On March 21, 2014 Social Worker Ashley Patten, who then had conduct of the file, was informed by the Mother that the Father had not visited with the Child for several weeks but also that the Mother intended to maintain a relationship with the Father notwithstanding her knowledge of the Father’s past sexual offences and the expressed protection concerns of the Ministry.

At that point, the Ministry social workers were concerned about the lack of communication they had received from the Father and the apparent continuing lack of his full disclosure of the details of the sexual offences to the Mother and also his lack of self-identification of the risks that his past sexual offending posed to the Child. [ 31 ] The October 2013 Order for supervision had expired by March of 2014. Therefore the Director reapplied on April 7, 2014 for a new three month supervision order on the same terms as the October 2013 Order, which were the same terms contained in the March 2013 Order.

That application is now contested by the Parents. [ 32 ] The Director also made application for a six month Protective Intervention Order against the Father under s 28 (3) of the Act. Specifically under ss 3 (

a) the Director seeks to prohibit the Father from “contacting or interfering with or attempting to contact or interfere with the [Child] or from entering any premises or vehicle or boarding any vessel that [the Child] attends without the prior written permission of the Director”. [ 33 ] Also, under ss 3(

b) the Director seeks to prohibit the Father “from residing with [the Child] or from entering any premises or vehicle or boarding any vessel where [the Child] resides, including any premises or vehicle or boarding any vessel that [the Father] has a right to occupy, without the prior written permission of the Director”. [ 34 ] The application for the Protective Intervention Order is also contested by the Parents.

[ 35 ] On March 31 st 2014 at a presentation hearing a further order under s 33.2 was made that the Director supervise the Child’s care pending a protection hearing (the “March 2014 Order”). The same conditions set out in the March 2013 Order and October 2013 Order were once again imposed. [ 36 ] The protection hearing under

section 40 of the Act (the “Section 40 Protection Hearing”) proceeded before me on October 1, 2 and 3, of 2014. [ 37 ] As a result of the testimony of the Mother on October 3, 2014 it became apparent that the Mother had sometime previously switched apartments with the Father, such that she moved into his and he into hers, but without complying with the requirement of condition 4 contained in the March 2014 Order requiring the prior approval of the Director before changing residences. [ 38 ] She also testified about at least one brief encounter on the street between herself and the Father when she had the Child with her but they were not in the presence of an approved supervisor.

She denied any other unsupervised contact between the Father and the Child that had been reported to the Ministry. The Director considered this brief encounter to be a breach of condition 3 in the March 2014 Order being the requirement that the Father only have supervised access to the Child as approved by the Director. [ 39 ] As a result of the alleged breach of condition 3, the Director proceeded to remove the Child in accordance with the “must remove” provision of the March 2014 Order.

After a brief appearance before me on October 7, 2014 I made an order (the “October 2014 Order”) that the Child was to be returned to the Mother but subject to the same conditions for supervision contained in the March 2014 Order except that condition 3 was changed to read as follows: 3. [The Mother] will not allow [the Father] contact or any unsupervised access to the Child except as approved by the Director. [ 40 ] The protection hearing was adjourned to November 19, 2014.

On November 14, 2014 the Director filed a new application now seeking the six month supervision order, rather than a three month supervision order, on the same terms contained in the October 2014 Order. [ 41 ] With the consent of all of the parties it was agreed that this

Section 40 Protection Hearing and the November 14, 2014 application would be conducted concurrently with the continuation of this

Section 40 Protection Hearing. All matters were adjourned over to January 22, 2015 for further evidence and submissions. [ 42 ] It was the hope of the Mother and the Father and their respective legal counsel that sufficient financial resources could be arranged, through the Father’s band, in order to obtain an updated professional report containing a psychological evaluation on the Father in order to assess his risk of committing further sexual offences.

Those financial resources could not be arranged and hence no new report was produced and placed before the court at the January 22, 2015 continuation. [ 43 ] A Court Plan of Care was prepared and filed with the court initially on April 8, 2013. Updated Court Plans of Care were prepared and filed on June 26, 2014 and November 19, 2014. [ 44 ] The relevant common themes of each of the Court Plans of Care are:

a) the Child was to remain in the care of and reside with the Mother under supervision.

b) the Mother was to be responsible for the ensuring continuity of relationships for the Child, educational needs when the Child was of age to attend school, and the Child’s cultural needs. [ 45 ] The June 26 and November 19, 2014 Plans of Care both list as an outstanding need of the Child as follows: “Reduce the risk of [the Child] being exposed to sexual abuse” and the stated Plan for resolving that need was expressed as follows: “The Director will ensure that all visits between [the Mother] and [the Father] and the [Child] will be supervised by an approved person.” [ 46 ] The June 26, 2014 Plan of Care lists the Mother’s participation in the “Little Warriors” program as an agreed service being provided to the Mother by the Ministry.

The stated goal was to help the Mother “identify the signs/impact of sexual abuse on children and families”. [ 47 ] The evaluation method/criteria is expressed as follows: [The Mother] will be able to engage in conversation with the [social worker] about the impact of sexual abuse and how she will ensure [the Child’s] safety as well as how the [Father’s] past offenses may put [the Child] at risk. [ 48 ] The June 26, 2014 Plan of Care further notes under the heading “ Form of Parent’s Involvement in Plan of Care” that the Mother and the social worker had phone conversations and several meetings to discuss the Ministry’s concerns pertaining to the Father and specifically with respect to his past offenses and regarding his visitation with the Child. [ 49 ] Under the provision for the Parent’s views about the Plan of Care it notes that the Mother was originally reluctant to agree with the social worker’s plans as she was “uninformed on the entirety of [the Father’s] sexual offenses and history”. [ 50 ] However it goes on to note that she is “now informed of [the Father’s] history and is in agreement to have visitation supervised by an approved person approved by the Director to ensure [the Child’s] safety.” The Mother’s cooperation with the Ministry and the social worker is confirmed.

However, it is observed that the Father “refuses to engage with the [social worker] or acknowledge the

[Ministry] concerns”. [ 51 ] The November 19, 2014 Court Plan of Care describes the agreed services as “counselling” and the goal of the service as to: help [the Mother] develop an understanding of how [the Father’s] history of sexual offending could put her child at risk.

In addition to [the Mother] having the opportunity to explore other identified areas of concern that may arise for her. [ 52 ] The evaluation method/criteria indicates that the Mother is to have an understanding and be able to articulate the impact of sexual abuse and how it puts children at risk. [ 53 ] Under the heading of the “Form of Parent’s Involvement in Plan of Development”, the same provision as noted in the June 26, 2014 Plan of Care appears but then adds the important observation that the Father has not engaged with the social workers aside from being present in court. [ 54 ] The provision concerning the Parent’s views of the Plan of Care references the same provision contained in the June 26, 2014 Plan of Care about the Mother’s cooperation but then adds that the Mother no longer wants to have the visits between the Child and the Father supervised.

It then goes on to say that the Father “refuses to engage with the social worker or acknowledge [the Ministry’s] concerns, aside from attending court”. The Child Background [ 55 ] The Child has no special needs. There are some medical concerns about a heart murmur which are being followed up appropriately. The Child has regular consultations with the local child development center and there are no developmental concerns. [ 56 ] The evidence of the Ministry social workers is that the Mother provides the Child with a loving and nurturing home environment.

There are no concerns noted by the Social Workers in their observations of the Mother and the Child together. [ 57 ] Ministry officials have had very limited opportunity, if any, to observe the Father’s interaction with the Child, especially in recent times due to the Father’s withdrawal from engagement with the social workers, but Social Worker Sharun has observed positive interaction between the Child and the Father during her involvement in the matter. [ 58 ] Protection concerns relating to the Father’s past sexual offenses remained a concern at the date of the hearing with respect to the Child.

The Mother Background [ 59 ] The Mother was born and raised in Nanaimo, BC. She has extended family living locally including three sisters and their families. She avoids contact with people and those of her family members who struggle with alcohol issues, which at various times has included her own parents. [ 60 ] The Mother was previously known to the Ministry prior to this matter.

The Mother’s first daughter H, (“H”) now age 8, who is the product from a different relationship with [D.W.] (“D.W.”), was made the subject of a continuing custody order (“CCO”) in January of 2011 following a significant period of Ministry involvement. The Ministry’s concerns in that case centred around domestic violence in the Mother’s relationship with D.W., D.W.’s mental health issues and with alcohol abuse issues of the Mother. I understand that the H presently lives with other family members of the Mother. [ 61 ] In 2008 the Mother underwent treatment for her alcohol abuse.

She had a period of sobriety and then moved to Port Alberni at the suggestion of her then social worker, as I understand it, to remove herself from the triggers that led to her alcohol abuse and also from those with whom she drank. [ 62 ] However, she continued to drink while in living in Port Alberni. She met the Father while there in March 2009 and their current six year relationship started to develop. [ 63 ] When they met, the Mother was engaged in taking steps to achieve and maintain her sobriety. She attended Alcoholics Anonymous meetings.

However, I understand that she continued to suffer some relapses. [ 64 ] The Father asked her to stay away from him if she was drinking. As a result of these boundaries imposed by the Father, the relationship was interrupted from time to time when she did in fact leave in compliance with the Father’s request. [ 65 ] In 2011, as I further understand it after the making of the CCO, she recognized the negative effects that alcohol was having on her life and on that of her child H. Therefore she commenced a period of sobriety which has continued to present date.

She credits the Father with providing her with the necessary encouragement and support in order to seek and maintain sobriety, which remains a frequent topic of discussion between them. [ 66 ] The commencement of her own sobriety coincided with the strengthening of their committed relationship especially during the last two years. They want to get married. They have not resided together in the same residence throughout the entire duration of their relationship.

I understand that this was partly as a matter of their choice and while she was seeking sobriety and also because of the present requirements of the Ministry. [ 67 ] In her testimony the Mother describes that in their present relationship the Father is a loving partner, who is “clean and sober”, that they are madly in love and want to be together. She says that the Father has been sober for 7 ½ years and therefore his sobriety

predates her own by several years. She anticipates that this mutual sobriety will continue in the future. [ 68 ] In 2010 she became aware from a member of the Father’s family that the Father had a criminal record for a sexual offense. She apparently broached the subject with the Father. He confirmed that he was a sex offender and he apparently showed her his lifetime sex offender registration card. [ 69 ] Understandably this came as quite a shock to the Mother especially because she was in love with the Father and living with him at that time.

Having received this disclosure from him, she immediately left his presence, walked for a few hours to deal with her distraught emotions and also to reflect on and assess their relationship. [ 70 ] She says that she returned and told the Father that she thought they could work through this situation, even though she wished to have a child with him. She understood from him that he was reluctant to have another child because of his concern that the Ministry might remove that child because of his sexual offender past.

They apparently ultimately agreed that it was their wish to grow their own relationship. [ 71 ] In her testimony the Mother confirmed that prior to the birth of the Child she knew very little about the circumstances of the Father’s sexual offending, his victims, their family relationship with him or their ages. She testified that she was not comfortable about confronting the Father to learn more about these details. Similarly, the Father did not offer much in the way of details.

Accordingly, she described that she learned more about the circumstances in “bits and pieces”. [ 72 ] However, at the time that she first met with Ministry officials after the birth of the Child and in response to their questions she indicated she knew about the Father’s criminal record as a sex offender and further confirmed that she told the Ministry social workers that she was not concerned about that record. [ 73 ] The evidence of the Ministry social workers was that they were very much concerned about the lack of information that had been shared by the Father with the Mother concerning his past criminal convictions for sex offenses. [ 74 ] The Mother was quite imprecise with the Ministry about when she actually became aware of the specifics of the circumstances and the nature of the sexual offenses.

During her testimony she was able to provide a significant amount of information about both. She indicated that she has now had the opportunity of reading documentation pertaining to these convictions. I also note that she was present during the testimony of the Father in the

Section 40 Protection Hearing, during which time the details of his sexual offences were canvassed including admissions of penis-vaginal intercourse as part of his sexual abuse of his half- sisters. She subsequently provided her own testimony after having heard the amplified details.

No doubt she now has a substantial amount of information about several things of which she was previously unaware and certainly unaware at the time of the Ministry’s initial involvement following the birth of the Child. [ 75 ] In her evidence the Mother made note of the fact, based on the information that she has received, that all of the incidences involving the Father’s sexual offence convictions involved his use of alcohol and drugs. Therefore she indicated that she would be very concerned if the Father once again started using drugs or alcohol.

When asked what she would do in that case in order to deal with the child protection and safety concerns, she said that she would ask him to leave and then qualified her answer by saying that it could be for a very long time and “that may never end.” The Father Background

Summary [ 76 ] The Father was raised both on and off at least two reserves, moving quite frequently often under the auspices of the child protection authorities including the native child protection authority USMA. [ 77 ] He is the eldest of two natural children. There are apparently six maternal and four paternal half-siblings and step siblings. His parents separated when he was about 3 years of age. His own Mother died accidently of carbon monoxide poisoning at a ferry terminal on her way to a drug and alcohol rehabilitation program. He was only approximately 7 years of age.

This tragic death apparently resulted in the breakup of the larger family, all of which was very traumatic for the Father. [ 78 ] His parents suffered from alcohol abuse issues and there were allegations of child neglect. He was taken into care at an early age and raised for a period of time by his maternal grandparents. The native child protection authority, USMA, was a constant part of his life growing up. Apparently his relationship with USMA was very strained for a number of years, both while the Father was growing up and as I understand it once the Father himself became a parent.

Available Information from Reports on the Father [ 79 ] Besides the Father’s own testimony there is further evidence about his background in a Pre- Sentence Report prepared August 7, 2001 (the “2001 Pre-Sentence Report”). It was prepared for the Father’s sentencing for his sexual offences against his sisters. [ 80 ] In addition there is an accompanying psychological assessment dated May 17, 2001 prepared by Dr. Edward A. Clarke a registered clinical and consulting psychologist (the “2001 Psychological Assessment Report”).

The Father was age 29 at the time of the preparation of these two reports. [ 81 ] There are a number of other reports completed on the Father that are referred to below including a Forensic Sex Offender Assessment Report completed April 14, 2009 by B.C. Mental Health & Addiction Services ( the “2009 FSO Assessment Report”) [ 82 ] The 2001 Pre-Sentence Report describes the Father’s life growing up as unstable and chaotic. It appears from the various reports that this lack of stability and chaos prevailed both in his childhood and in adolescence.

At various times the Father was estranged from his native community and he was not welcomed on the reserve because of his past offending conduct.

[ 83 ] The 2001 Pre-Sentence Report confirms that he dropped out of school in grade 11. Thereafter, he held a number jobs working in construction, a fish plant and other fisheries related jobs. He has relied upon social assistance. The Father was fired from various jobs because of alcohol abuse issues. The Father was also trained as a band newsletter editor, which job he left because of conflict with those in charge. [ 84 ] At present time, the Father works steadily and puts in lengthy hours including a lot of overtime through a local labour contractor in Nanaimo. He has enjoyed success with that employer.

His employment is presently a significant priority and an important part of his life. [ 85 ] The 2001 Pre-Sentence Report and the Father’s own testimony detail a very highly challenged history of alcohol substance abuse that started when the Father was 16 years of age. He also used illicit drugs and according to 2009 FSO Assessment Report he suffered from a cocaine addiction for a number of years. [ 86 ] At approximately age 27 he commenced to have periods of self-directed abstinence from alcohol use. In 2007 he completed a residential treatment program for substance abuse.

During the completion of the 2009 FSOP Assessment Report he self-reported that he had not used drugs for an extended period of time and had been attending Alcoholics Anonymous meeting for 22 months. The Father testified that he had a leadership role in a number of these types of self-help and rehabilitative programs. [ 87 ] At the time of this

Section 40 Protection Hearing the Father testified that he has remained abstinent from alcohol for a period of some 7 years, having learned that he was unable to control himself with alcohol and could not have just a couple of drinks. He apparently came to that conclusion after the events that gave rise to his third conviction for sexual assault against his niece that occurred in 2007. In his evidence he said he made a decision in one of his programs that he never wanted to drink alcohol in the future and he has remained abstinent since then.

He stated that he is “pretty confident” that he will not drink in the future. [ 88 ] The 2001 Pre-Sentence Report confirms that the Father was in at least significant three relationships prior to his relationship with the Mother. The first relationship was a teenage relationship starting when he was about 13 that lasted for about 8 years and produced a child. The second relationship started when he was age 21 with a 17 year old partner which lasted three years and which produced a child. At age 24 he started a six year relationship with a 15 year old girl which also produced a child.

Two of the children remain with their biological mothers. One child was removed by the Ministry or USMA from that child’s mother. There are apparently historical restrictions on the Father’s access to these other biological children. [ 89 ] Hence this is another source of historical conflict in the Father’s relationship with child protection authorities. The 2001 Psychological Assessment Report indicates that at the time of its preparation that the Father expressed “a lot of resentment and animosity towards USMA”, while appearing that he also relied upon them for support, both emotional and financial.

The Father’s Sexual and Other Criminal Charges and Offences [ 90 ] The Father has a number of criminal convictions starting with a theft under $1000 in 1991, an assault causing bodily harm in 1995, in 1997 a mischief under $5,000, a firearms storage offence and an uttering threats and in 1999 a breach of undertaking. [ 91 ] In 2001 the Father was sentenced on two serious charges of sexual assault dating back to 1990 and to 1997 involving two separate victims. One of the victims was apparently around the age 13 at the time of the offence and is a half- sister of the Father.

The other victim who apparently was also a half-sister who was around age 11 at the time of the offence. The Father was age 19 at the time of the first offence and age 26 at the time of the second. [ 92 ] According to the 2001 Pre-Sentence Report the information obtained by the author, Probation Officer Dave Paruk, indicates that both victims loved and looked up to their older half-brother preceding the offences. The sexual offences were devastating to both young victims. [ 93 ] Both sexual assaults took place in the context of a drinking party on the Father’s home reserve.

The Father’s intoxication from alcohol and possibly the use of illicit drugs were common factors in both offences. The Father was sentenced to one year of jail and placed on probation for a period two years on each offence.

It appears that sentences ran concurrently. [ 94 ] Following his release the Father was subsequently convicted in 2002 and 2003 of four breaches of his probation order and sentenced to one day in jail on two of the convictions and fines on the other two. [ 95 ] The 2009 FSO Assessment Report and the Father’s own testimony confirms that he completed at least part of that sentence at the Stave Lake Correctional Centre and from November 2001 to May 2002 partook in what I understand to be a group therapy program, sexual offender counselling as well as a relapse prevention program.

The Father testified that the felt “rushed” in his counselling and rehabilitation at Stave Lake Correctional Centre, which he says was then in the process of being shut down. [ 96 ] It is not entirely clear specifically what sex offender programs or counselling or other rehabilitative and relapse prevention programs the Father took while on probation for two years and including up to 2007.

Among other things the 2001 Pre-Sentence Report recommended completion of sex offender counselling, and family violence and drug and alcohol counselling as directed by his probation officer. [ 97 ] In 2004 he was charged with sexual interference of a person under age 16 and an invitation to sexual touching involving a person under 14 years of age. The Father testified the complainant was a 9 or 10-year-old niece. I understand those matters went to trial and he was acquitted in January 2005 on both charges.

It is noteworthy that the 2009 FSO Assessment Report references a 2004 charge, trial and acquittal involving the Father’s “biological 7 year old daughter”. This discrepancy as to the alleged victim’s relationship with the Father was not canvassed during the hearing before me. [ 98 ] The Father also admitted that further allegations were made against him regarding the touching of the leg, buttocks and vagina of a young girl. Identity was apparently an issue in that case and the charges never proceeded to court.

[ 99 ] In 2007 he was charged with sexual assault. It resulted in a January 2008 sentence of 18 months in jail, probation for one year and an order to comply with the Sex Offender Information Registration Act . [ 100 ] This offense was against his 18-year-old niece, again occurring on his home reserve during a house drinking party. The Father called the RCMP and reported himself shortly following the offence, which apparently occurred after he had become significantly intoxicated.

A statement given by the Father to the RCMP in the course of investigating this offence contains an admission by the Father of an attraction to girls 16 to 18 years old and his suggestion that he has a “taste” for 14 to 16 year olds. In his testimony the Father stated he had little recollection of making that statement.

Further that the offence occurred and therefore the statement was made during a period that he was drinking heavily. [ 101 ] Subsequent to this offense but prior to sentencing the Father completed a residential alcohol and drug addiction rehabilitation program starting in June of 2007. [ 102 ] The Father served his sentence at the Ford Mountain Correctional Center and commenced his probation on January 7, 2009.

While incarcerated in 2008 he completed a number of different rehabilitative and self -improvement programs on a voluntary basis including violence prevention, cultural education, cognitive skills, basic construction, substance abuse management and a CJR 12 educational program that took 120 hours. I understand the Father also completed the sex offender program provided by that institution. [ 103 ] In April of 2009 the Father was assessed by B.C. Mental Health and Addiction Services, Forensic Psychiatric Services Commission. This produced the 2009 FSO Assessment Report.

It concluded that the Father was an appropriate candidate for the Forensic Sex Offender Program commencing May 4 and running to June 22, 2009. The Father entered into and completed the “Low Intensity Sex Offender Program”. Existing Assessments and Reports Completed on the Father [ 104 ] The 2001 Pre-Sentence Report can be regarded as a somewhat negative presentence report. The author of that report notes that the Father responded to his challenges in life while growing up by feelings of oppression and being treated unfairly.

He is described as responding by “victim stancing” which I understand to be portraying himself as a victim, while not taking responsibility for his actions. The report notes that by taking this position the Father’s situation was not improving. While he had seen a sex offender counsellor, Dave Zryd, the counsellor reported that the sessions were more support oriented and “very little was accomplished from a counselling standpoint.” [ 105 ] The 2001 Pre-Sentence Report further notes that while the Father had abstained from alcohol he was not addressing the issues that led him to drink.

While expressing remorse about his sexual assaults of his two half-sisters, he apparently attributed those sexual crimes to the fact that he was “mean and lost all responsibility when drinking”.

It concludes by saying that the Father lacked insight into his behaviour and had been resistant to change. [ 106 ] The 2001 Pre-Sentence Report states that the Father reported that earlier in 2001 two men had broken into his home and had sodomized him as “payback” for his sexual assaults on the two young girls. [ 107 ] Eight recommendations were made in the 2001 Pre-Sentence Report including: a lengthy probation period to “ensure that he has the time needed to work on developing and implementing plans to take control of his life and to complete sex offender and alcohol and drug treatment”, abstention from illicit drug and alcohol use, counselling and Alcoholics Anonymous and Narcotics Anonymous meetings for overcoming that use and also including residential treatment, completion of a community based sex offender program, attendance at other assessments, treatments and interventions including those aimed at “increasing his sense of identity and direction based on Native values and traditions” and an order that he not be in the presence of children under age 14. [ 108 ] The 2001 Psychological Assessment Report discloses the result of a number of psychological tests completed on the Father.

Dr. Clarke concluded, from the psychological testing and interview that he conducted on the Father, that the Father wanted to portray himself as a man who knows his direction in life while he is in fact still lost and in need of help. [ 109 ] Dr.

Clarke further notes on page 9 of the 2001 Psychological Assessment Report that to live his life and in concert with “the values espoused” (which this court understands to include his pride in his Native heritage and culture) it was necessary for the Father to maintain sobriety and work through his feelings of anger and loss such that he moves beyond seeing himself as a victim. [ 110 ] Dr. Clarke goes on to note at pages 9 and 10: “He also requires interventions to help him take responsibility and be accountable for his sexually offensive behaviors.

He should therefore access a sex offender treatment program that also addresses his general behaviors and attitudes towards women. He would be best served if the help he received was provided by Natives or in a native cultural context. [The Father’s] offenses most likely occurred when he was under the influence of alcohol or drugs. As such it is important that he not begin drinking or using illicit drugs again. If he did his risk for reoffending would be substantially increased.

As things stand, his static and dynamic risk factors for reoffending include: the age of his victims; concerns about prior sexual offenses; an opportunistic offending style; an unknown pattern of sexual arousal and fantasy; problems with depression, anxiety and erratic affective states; a diffuse identity; potential access to victims; a denial of the offenses; a history of alcohol and substance abuse; and reported social isolation. For the short term [the Father] is at a low to moderate level of risk to reoffend.

Should he return to substance abuse and should he not receive the help he needs to identify some positive direction for his life then his risk level would again increase substantially. There may be a parallel between USMA and the legal system for [the Father]. He may experience the imposition of probation conditions

in a similar way to the conditions he has faced from USMA. As with his response to USMA he may resent and balk at them and thus perpetuate his difficulties. It would be important to review this idea with [the Father] and ensure that he understands that the intention is not to victimize him but to help him mature, take responsibility for his life and ensure that he no longer has victims.” [ 111 ] The 2001 Psychological Assessment Report also proposes a number of recommendations for the Father’s probation including taking

part in a community-based sex offender treatment program, residential alcohol and drug treatment, not being in the presence of children under 14 years of age unless supervised by an approved adult and seeking employment or further upgrade of his skills. [ 112 ] As noted above, the Father was further assessed in the 2009 FSO Assessment Report as to treatment readiness, treatment targets, and as to the appropriate treatment. The Father was approved as suitable for a sex offender program.

Extensive references are made in the in the 2009 FSO Assessment Report to the assessments and recommendations contained in the 2001 Psychological Assessment Report. An important limiting qualification appears at the beginning of the 2009 FSO Assessment Report that says as follows: This report is not a comprehensive psychological evaluation, nor is it a comprehensive risk assessment. [ 113 ] The approved sex offender program named in the 2009 FSO Assessment Report was the Low Intensity Sex Offender Program. In the Discharge

Summary dated June 22, 2009 completed at the conclusion of this approved sex offender program (the “2009 FSOP Discharge

Summary”) it is described as being “a community-based low intensity treatment program”. The nature of such a program is therefore qualified in the following terms: As such, the extent to which sex offender program clients internalize the concepts and skills addressed in treatment cannot be definitively stated. [ 114 ] The 2009 FSO Assessment Report noted that with respect to the 2007 sexual offence against his niece, the Father claims “full responsibility for his actions, without denial or justification”.

This appears to be significantly improved insight in comparison to what he expressed about his offences against his sisters and as detailed in the 2001 Pre-Sentence Report and in the 2001Psychological Assessment Report. [ 115 ] The Father was assessed on his identified static risk factors (those being relatively fixed) as well as his identified dynamic risk factors (those being changeable) prior to entering into the sex offender program. The assessment information is referred to in the 2009 FSO Assessment Report and the 2009 FSOP Discharge

Summary. [ 116 ] At entry to the program he scored in the Low-Moderate Risk range on the static risk factors. He scored in the Low Risk range on the dynamic factors. The 2009 FSO Assessment Report states that individuals who score similarly on the test administered on average sexually re-offend at the rate of 12 percent over five years and 14 per cent over ten years. [ 117 ] The 2009 FSOP Discharge

Summary noted positive progress for the Father during the course of the program. However, six dynamic factors were identified as having not changed and four as having improved positively. [ 118 ] The 2009 FSOP Discharge

Summary noted the Father was continuing to be quite socially isolated and continuing to struggle with impulsivity but was now actively using more frequently a higher degree of cause-and-effect thinking to predict the consequences of his actions. It further noted that the Father had historically returned to substance abuse as a means to cope with unresolved grief and loss and to manage stress in his life. It further made note of his coping strategy of using sex and his sexual interest in younger girls which was stated to be largely associated with historical misuse of substances.

Those were identified as both remaining significant risk factors if the Father returned to substance use. [ 119 ] However, the 2009 FSOP Discharge

Summary placed the Father in the Low-Moderate risk for reoffending based on risk assessment results and therapist clinical opinion. The 2009 FSOP Discharge

Summary does not reference any statistical information on his likelihood to reoffend. [ 120 ] Under the heading of “Future Management” the 2009 FSOP Discharge

Summary makes the following recommendations: “It is critical that [the Father] continue to avoid substance use in the future and that he be monitored and supported relative to this historical disinhibiting factor. In the opinion of the Therapists, [the Father] should continue with close supervision, individual counseling and 12 step support within the community, and would likely benefit from Post Program Residential Treatment to address issues relating to unresolved grief and loss and ongoing substance abuse management.

In the opinion of the Therapists, [the Father] would also benefit from participation in Sex Offender Management Program at the conclusion of the current sequence.” [ 121 ] At the commencement of the 2009 FSOP Discharge

Summary the following noteworthy and cautionary limitation statement appears: “The purpose of this report is to review and summarize Forensic Psychiatric Services Commission (FPSC) Sex Offender Program treatment participation and performance. It is not to be used for other purposes (e.g. in custody and access disputes and 810 applications).

It does not represent a comprehensive psychological evaluation nor is it a comprehensive risk assessment.” [ 122 ] Quite remarkably the Father says that he was not made aware of the Future Management recommendations contained in the 2009 FSOP Discharge

Summary nor were they discussed with him. I am challenged to accept the Father’s recollection on this point given his historical sex offences and the nature of the treatment that he received. Further Counselling and Treatment Undertaken and Offered to the Father [ 123 ] The Father testified that he substantially fulfilled all of the recommendations in the 2009 FSOP Discharge

Summary and as may appear in the 2001 Pre-Sentence Report and the 2001 Psychological Assessment Report.

He says that this occurred in the course of his probation following his 2001 sentence, and also following the 2007 sexual assault offence but preceding sentencing and also following the imposition of his 2008 custodial sentence and the resulting probation order that followed. [ 124 ] He testified that he completed these in a number of ways, including: through counselling resources provided by his band and his First Nation’s Health Board, through Mental Health and Addictions, through the John Howard Society Transitional Housing Programs, through outside counsellors, through his participation in Alcoholics Anonymous and Narcotics Anonymous, and though discussions with and advice he received from Native Elders. [ 125 ] He apparently did all of this notwithstanding his contention that he did not know or was not made fully aware of the Future Management provision contained in the 2009 FSOP Discharge

Summary. [ 126 ] The Father’s further suggestion is that in recent years and in particular since his recent involvement with the Ministry because of the Mother and the Child, he has not been able to attend nor avail himself of many of these formal resources. His excuse is his continuing work obligations and the waiting lists to access some of the programs.

He testified that his wife, namely the Mother, and his “adopted uncle”, [S.R.] (“S.R.”) with whom he has shared an apartment for over the last year are the people in his life to whom he turn to for support. [ 127 ] In the course of the hearing before me he also presented a list provided to him by the Baron Road Clinic of several resources he can access from that and other clinics and organizations if and when the need arises. [ 128 ] In his testimony S.R. testified that he and the Father’s own grandmother are members of the same band. He is related but he is not a blood relative of the Father.

They have maintained a close relationship over the past year. S.R. has maintained abstinence from alcohol and drugs for 25 years. S.R. is knowledgeable in Native culture and history and has shared his cultural knowledge and his own experience with sobriety with the Father. He has spoken to the Father about the stressors in the Father’s life. [ 129 ] S.R. describes the Father as having a “surprising knowledge” about his band’s cultural history.

S.R. says the Father is careful about his sobriety and wants to keep alcohol out of his life, he is diligent about his work often doing double shifts, he is more at peace and less stressed than in the past, and specifically is more positive and not holding on to negatives as he had previously been doing. [ 130 ] S.R. says he has observed the positive and happy interaction of the Father with the Child during a supervised visit. S.R. knew that the Father was experiencing difficulties obtaining access to the Child but had not delved into the details with the Father.

It became very apparent in the course of his testimony that S.R. was not aware of the Father’s criminal convictions for sex offences and presumed that the counselling and programs that the Father had taken or was being asked to take related to anger management. The Director’s Counselling and Assessment Requirements Developed for the Father and the Mother For the Father [ 131 ] The various Ministry social workers who testified on behalf of the Director admitted that they did not have personal knowledge of the details or circumstances surrounding the Father’s sex offenses or other criminal offenses.

Therefore significant reliance was being placed on the various historical reports prepared in connection with the Father and in particular the sex offenses that are referred to above.

That information of course was reviewed by the Ministry social workers in the course of dealing with and assessing the Director’s protection concerns. [ 132 ] The Ministry was obliged to take a number of actions once it became more informed about the Father’s past offending behaviour and in particular his three prior sex offenses, the other sex offence allegations made against him that did not result in charges being laid or proceeding and his relationship with the Mother and the Child.

One of the most significant actions was that the Ministry began to implement an information gathering and an assessment process to assist it in deciding whether the Father, as a child sexual offender, could re-join the family. [ 133 ] Back in 2001 the Ministry had developed a comprehensive set of “Practice Guidelines for Deciding Whether a Child Sexual Offender Can Re-join a Family” (also referred to in these reasons as the “Protocol”) for dealing with matters of this nature where a person who has sexually abused a child wants to move into a home where a child resides.

A copy of the Protocol was entered as an exhibit in this hearing and I subsequently reviewed it in the course of my deliberations. In the Introduction the following passage describes “What are the Practice Guidelines?” Practice guidelines provide recommended procedures to help social workers meet the expectation in policy, child protection standards and guardianship standards that apply in specific child protection situations. Unlike practice standards, compliance with practice guidelines is not mandatory.

[ 134 ] On July 16, 2013 Social Worker Brandi Miller wrote to the Father (the “July 16, 2013 Letter”). The subject line was “Re-: Assessment for Reintegration of a Child Sexual Offender to a Family” [ 135 ] The July 16, 2013 Letter clarified and outlined the process for this assessment. Reference was made to the “Practice Guidelines”.

The letter clarified the basis for the assessment and the reasons for it. [ 136 ] The July 16, 2013 Letter notes as follows with reference to the Protocol: These Practice Guidelines were developed to provide the following: • A step by step framework for assessing the likelihood of future abuse and the strength of protective factors in order to determine whether reintegration should be opposed or supported. • The steps available to social workers to manage the risk of future abuse and to determine whether or not reintegration occurs through the creations of a risk reduction service plan. [ 137 ] The July 16, 2013 Letter goes on to say as follows: Through this assessment process, the safety and well-being of your children, and those frequenting your home, are of paramount consideration.

The needs and interests of the offender (yourself) and the non-offending parent [the Mother] are always secondary to the safety and well-being of any child. [ 138 ] The seven step process is then described noting that steps 2 to 5 are for the purpose of evaluating the strength of four barriers to sexual abuse.

Barriers are therein defined as “anything that will reduce the likelihood of abuse occurring”; these barriers are thereafter referred to as “stop signs”. [ 139 ] The seven steps in the following numerical order are then set out as follows under separate headings and then are amplified with the following additional information: 1. Gather information for the assessment - which then goes on to describe that relevant information about the previous abuse and the current status of the offender and the family is collected and reviewed.

The sources of that information are then described such as parole officers and offender’s treatment providers. It is specifically noted that “during this step that psychological assessments are obtained and interpreted”. 2. Assess the offender stop sign- which then goes on to describe that this is an assessment based on the nature, extent and context of the offender’s previous abuse, the treatment received by the offender, the offender’s circumstances then and now and the offender’s attitude towards past abuse and potential for re-abuse. 3.

Assess the protective adult/non-offending parent stop sign -which then goes on to describe the assessment based on whether a non-offending spouse or other adults in the home is a “strong enough protective factor to make re-abuse unlikely”. The three considerations utilized are then described: whether the person has the capacity to protect the child from future abuse; whether the person has demonstrated a readiness to put the child’s interests first; and whether the person is willing and able to develop and implement a realistic risk management plan in the home. 4.

Assess the child stop sign - which then goes on to describe the assessment based on three considerations described as follows: the child’s view about reintegration; the child’s vulnerability to abuse; and the potential impact of reintegration on the child and other children frequenting the home. 5. Assess the community stop sign -which then describes an evaluation of the degree of isolation of the children in the family including an assessment of the family social and community connections, social connections of the non-offending parent and social connections of the child/children. 6.

Determine whether to support or oppose reintegration -which then notes that this step evaluates the risk of re-offending, including the degree of risk the offender poses to the child, whether the combined strength of protective factors is sufficient to protect the child and the potential trauma to the child of reintegration 7. Developing a risk reduction service plan -which notes that this step is completed regardless of whether there is support or opposition to reintegration. This plan specifically addresses any risks identified in the assessment of the four stop sign (being the steps 2 to 5).

[ 140 ] The penultimate paragraph of the July 16, 2013 Letter then provides important guidance to the Father as follows: These steps will need to be completed in order. At our next meeting on to be determined , we will re-evaluate whether you and your family are ready to begin this process.

As we discussed at our meeting today, this process is thorough and will be time intensive. [emphasis contained in original] [ 141 ] From the Ministry’s perspective a number of problems had to be addressed and as it turned out significant hurdles presented themselves in implementing and attempting to complete the Protocol. [ 142 ] During these earlier stages of the Ministry’s involvement with the Family, steps were also being taken by the Ministry social workers to identify individuals who would be suitable to act as supervisors for the Father’s access with the Child.

The Parents wanted the Mother to be able to supervise the Father’s visits. The Ministry opposed that arrangement. Agreeing on supervisors became an issue between the Parents and the Ministry and only a very limited number of individuals proposed by the Parents were found by the Ministry to be suitable and were therefore approved. As I understand it only one of the Mother’s sisters was approved as a supervisor at the time of the hearing before me.

Thus for an extended period of time there were significant resulting practical limitations imposed upon the Father’s supervised access with the Child. [ 143 ] As noted above the major concern to the Ministry about the Mother acting as the supervisor was based upon their conclusion that the Mother was not fully aware of the circumstances and the exact nature of the Father’s past sexual offenses nor did she have sufficient training to handle the supervisory function. [ 144 ] The Father had provided the Mother with some information about his criminal convictions, but he had not made full disclosure to her.

For the Ministry this created a problem because if she was not fully knowledgeable about the risks flowing from circumstances and the details of the offences, the Mother would not have any necessary basis for dealing with the risk that the Father may pose to the Child. [ 145 ] Therefore from quite early on in their involvement, the Ministry took steps to attempt to bring the Father and the Mother together for an in person session with a social worker; the purpose being for an allocution by the Father to both the Mother and the social worker about the full details of his prior sexual offenses and the other allegations made against the Father that had either been dismissed or had not proceeded by way of any charges or by means of a trial.

The stated purpose was to facilitate an open discussion about the offences and the behaviour and the risks posed by them. That session did not materialize although separate meetings were held by the social workers with each of the Father and the Mother. The lack of any joint meetings was apparently mostly due to the reluctance on the part of the Father to talk about these matters in the presence of the Mother and the social worker. This was perceived by the Ministry social workers as a lack of willingness on the part of the Father to take responsibility for his past offences.

The continuing absence of the joint meeting also hindered the information collection and the assessment being an integral first step in the Protocol. [ 146 ] The Father was apparently referred by the Ministry to the Tillicum Lelum Aboriginal Society around the spring of 2013 for counselling and workshops. The evidence reveals that a conflict quickly developed between the service providers at Tillicum Lelum and the Father.

The service providers found the Father to be misusing the resources made available to him and that he was disrespectful of staff and Native Elders. [ 147 ] They further found him to be disruptive in the programs and workshops in which he participated. This was described in a letter dated August 26, 2013 as creating an “unsafe environment for other participants, inhibiting their ability to engage in the programs or workshops”. [ 148 ] Accordingly, services for the Father were terminated by Tillicum Lelum effective July 4, 2013.

The Father described that he felt disrespected while attending Tillicum Lelum programs, stating that there were aboriginal cultural differences that became the source of friction between him and the service providers . [ 149 ] As part of the implementation of the Protocol to determine whether or not the Father as a child sexual offender could re-join the family in the home, the Ministry wanted to have the Father reassessed as to whether or not he continued to pose a risk of sexual re- offending. They also wanted him to attend approved counselling programs.

Therefore a referral was made for the Father on October 7, 2013 to NARSF Programs Ltd. for that purpose and in addition to obtain some family counselling. [ 150 ] The acronym NARSF apparently stands for “Nanaimo Area Resources Support for Families.” It is a contractor that provides the Ministry with a full suite of programs including harm reduction services, family therapy programs, mental health outreach programs and sexual abuse intervention programs. The Ministry social workers understood that NARSF was capable of providing the necessary services for the Father, including the required updated assessment.

I understand that the Father did receive some services from NARSF but with some very limited success [ 151 ] By way of a letter dated January 21, 2014, NARSF informed the Ministry that they were declining the referral of the Father to their Family Therapy Program because it was not within the scope or the practice of that program to provide either specialized sexual offender treatment or to provide the Ministry with a formal psychological assessment to assist in their decision making under the Protocol. [ 152 ] Both prior to and subsequent to the making of the Mediated Agreement , for a number of reasons, including the limited financial resources of both the Ministry and the Father and the lack of ability to access outside financial resources it became very

problematic for the Father to successfully access and to engage in Ministry approved counselling and to obtain the required forensic assessment to properly determine the Father’s current risk to re-offend and to thereby place the Child at risk. [ 153 ] The Father sought to re-establish his historical counselling relationship with Dave Zryd and to be re-evaluated by Dave Zryd after the Mediated Agreement had been signed. For the most part this proved unsuccessful since Mr. Zryd was carrying on his practice in Port Alberni and the Father was living in Nanaimo.

The Father had limited transportation options to travel to Port Alberni. Mr. Zryd then apparently moved his practice to the west coast of Vancouver Island, being another hour and a half from Port Alberni and thereby adding to the Father’s transportation burden and inability to meet with Mr. Zryd. For The Mother [ 154 ] The Ministry decided that it was also important that the Mother undergo some family therapy.

The purpose for the Mother’s therapy was for her to gain understanding of the Father’s past offending history and to learn how to provide protection for the Child. [ 155 ] Therefore a referral was also made for the Mother to NARSF. From what I gather the Mother did not actually complete that NARSF therapy program. [ 156 ] She did in fact eventually complete an approved sexual abuse prevention training program offered by Little Warriors on May 5, 2014, but the circumstances of her taking this program with the Father also in attendance was very problematic in the opinion of the Ministry social workers.

They were concerned that his presence restricted her ability to have the full benefit of asking questions and learning from the program. Since completing that program the Mother has apparently not taken any further training in sexual abuse prevention. [ 157 ] Following her attendance at the Little Warrior’s Program in May of 2014 the Mother expressed that she had gained a lot from it. She expressed to Social Worker Patten at a June 2014 meeting that it had “opened her eyes” and made her more diligent on the Father’s visits.

At that point the Mother seemed to Social Worker Patten to be more agreeable to the Ministry’s plan for continuing supervision of the Father’s visits. However, the Mother was pressing for the approval of more Ministry approved supervisors. As previously noted, it has continued to be a problem finding suitable supervisory candidates that are acceptable to the Ministry. [ 158 ] I also gather that no referral was actually made to NARSF for the weekly one on one counselling for the Mother that was contemplated by the Mediated Agreement. Therefore that counselling did not occur.

Status of the Completion of the Protocol Steps and the Objectives of the Mediated Agreement. The Protocol [ 159 ] According to the evidence of Social Worker Michelle Sharun at the time that she ceased to have conduct of the Parents’ and the Child’s file in January 2014, implementation of the Protocol was stalled at Step 2, namely the assessment of the Father’s “offender stop sign”. [ 160 ] Social Worker Ashley Patten assumed conduct of the Parents’ and the Child’s file in February of 2014. She attempted to move the Protocol process along through meetings with the Mother.

At this stage the Father had essentially withdrawn from the process and was not engaging with Social Worker Patten or any other representatives of the Ministry. [ 161 ] A short term safety plan was entered into between the Mother and Social Worker Patten on March 21, 2014, the terms of which essentially were incorporated into the March 2014 Order. [ 162 ] Social Worker Patten testified that the Mother has been co-operative and she has been compliant with the necessary texting and phone message notifications concerning the Father’s planned access. [ 163 ] At present time, Social Worker Patten agrees that the Protocol remains stalled at the second step; therefore no further progress has been made since Social Worker Patten took over from Social Worker Sharun.

The same lack of co-operation of the Father sharing information with the Mother and the social workers about the offences is cited for this lack of progress. Relevant Provisions of the Child, Family and Community Services Act [ 164 ] The following sections of the Act are of particular relevance in the case before the bar. I have reproduced them for the benefit of the Parents and to assist them in understanding these reasons and to guide them in the future.

Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

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

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

(

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

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

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

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

g) decisions relating to children should be made and implemented in a timely manner. Service delivery principles 3 The following principles apply to the provision of services under this Act: (

a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them; (

b) aboriginal people should be involved in the planning and delivery of services to aboriginal families and their children; (

c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; (

d) services should be integrated, wherever possible and appropriate, with services provided by government ministries, community agencies and Community Living British Columbia established under the Community Living Authority Act ; (

e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children. Best interests of child 4

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

a) the child's safety; (

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

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

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

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

f) the child's views;

(

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

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

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

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's parent 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; [1] (

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 or consent 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 care when the agreement is no longer in force. Child who needs to be protected from contact with someone

(1) If there are reasonable grounds to believe that contact between a child and another person would cause the child to need protection under section 13 (1) (

a) to (

e) or (i), a director may apply to the court for a protective intervention order.

(2) At least 2 days before the date set for hearing the application, notice of the time, date and place of the hearing must be served on the following: (

a) the person against whom the order is sought; (

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

c) the person with care of the child.

(2.1) The director must, if practicable, inform each parent of the time, date and place of the hearing unless (

a) the parent has already been served under subsection (2), or (

b) informing the parent would, in the director's opinion, cause physical or emotional harm to any person or endanger the child's safety.

(3) If satisfied that there are reasonable grounds to believe that contact between the child and another person would cause the child to need protection under section 13 (1) (

a) to (

e) or (i), the court may, in the child's best interests, do one or more of the following: (

a) prohibit the other person for a period of up to 6 months from contacting or interfering with or trying to contact or interfere with the child or from entering any premises or vehicle or boarding any vessel the child attends; (

b) prohibit the other person for a period of up to 6 months from residing with the child or from entering any premises or vehicle, or boarding any vessel, where the child resides, including any premises, vehicle or vessel that the other person owns or has a right to occupy; (

c) if the court thinks the other person may not comply with an order under paragraph (

a) or (b), order that person to (

i) enter into a recognizance, with or without sureties, in an amount the court thinks necessary and reasonable, (ii) report to the court, or to a person named by the court, for the period of time and at the times and places the court thinks necessary and reasonable, or (iii) produce to the court, or to a person named by the court, any documents the court thinks fit; (

d) include any terms necessary to implement an order under paragraph (a), (

b) or (c). (3.1) to (3.6) [Repealed 2011-25-290.]

(4) Before the protective intervention order expires, the director or the person against whom the order was made may apply to the court

and the court may do one or more of the following: (

a) change the order; (a.1) [Repealed 2011-25-290.] (

b) cancel the order; (

c) shorten the term of the order; (

d) extend the term of the order for one period of up to 6 months.

(5) At the request of a director, a police officer must assist in enforcing a protective intervention order.

(5.1) If a director has applied to a court for a protective intervention order under subsection (1) and the court has ordered an adjournment of the hearing, the court may make an interim order (

a) for the purposes described in subsection (3), and (

b) for the period from the adjournment of the hearing until the conclusion of the hearing.

(6) A protective intervention order may be made at any time, including before, at or after a presentation hearing or other hearing.

(7) In this section, "court" means the Supreme Court or the Provincial Court. If a supervision order is needed 29.1

(1) A Director may apply to the court for an order that the Director supervise a child's care if the Director has reasonable grounds to believe that (

a) the child needs protection, and (

b) a supervision order would be adequate to protect the child.

(2) Notice of the time, date and place of the presentation hearing relating to an application under this

section must be served in accordance with

section 33.1 (1), (2) and (3). Removal of child 30

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

protection and that (

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

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

(2) A Director may, without a court order and by force if necessary, enter any premises or vehicle or board any vessel for the purpose of removing a child under subsection (1) if (

a) the Director has reasonable grounds to believe that the child is in the premises or vehicle or on the vessel, and (

b) a person denies the Director access to the child or no one is available to allow access to the child.

(3) If requested by a Director, a police officer must accompany and assist the Director in exercising the authority given by this section.

(4) A Director's authority or duty under this Act to remove a child applies whether or not (

a) a family conference, mediation or other alternative dispute resolution mechanism is scheduled or in progress, (

b) a date is set for hearing an application under

section 29.1, or (

c) any other steps have been taken under this Act with respect to the child. Presentation hearing and orders 35

(1) At a presentation hearing relating to the removal of a child under

section 30, the Director must present to the court a written report that includes (

a) the circum

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