Director v. K.B.W. and K.E.A. Date:, 2015 BCPC 14

Citation: Director v. K.B.W. and K.E.A. Date: 20150119 2015 BCPC 0014 File No: F8427 Registry: Courtenay 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: C.L.A. , born DOB G.M.A., born DOB and L.T.A., born DOB BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.B.W. PARENT AND: K.E.A. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Director: Paul Armstrong

Counsel for the Parent: Jason B. Nemeth Counsel for K.E.A. : Harold Henning Place of Hearing: Courtenay , B.C. Dates of Hearing: June 16, 17 and 18, 2014 and July 11, 2014 and Sept. 8, 2014 Written Submissions received on: Sept. 25 and 28, 2014, Oct. 6 and 15, 2014 Date of Judgment: January 19, 2015 Introduction [ 1 ] The Director under the Child Family and Community Service Act ( the “Director”) seeks a finding pursuant to section 13 (1) (

h) of that Act (the “ Act ”) that three children named below (the “Children”) are in need of protection, each Child having been removed by the Director at their respective dates of birth. Also the Director seeks a continuing custody order (“CCO”) pursuant to the following provisions of the Act for each of the Children namely:

a) C.L.A. (“CL”) being approximately 3 ½ years old at the time of the hearing; [DOB] - pursuant to section 49(5);

b) G.M.A., (“G”) being approximately 2 years old at the time of the hearing; [DOB] - pursuant to section 41(1)(d);

c) L.T.A., (“L”) being approximately 4 months old at the time of the hearing; [DOB] - pursuant to section 41(1)(d.) [ 2 ] The Parents of the Children (the “Parents”) namely, K.B.W. age 25 (the “Mother”) and K.E.A. age 34 (the “Father”) oppose the Director’s applications. [ 3 ] The Mother and the Father both seek a “last chance” order pursuant to section 49(7) of the Act whereby pursuant to subsection (

c) the Children would be placed in the temporary care of the Director for a further 6 months. During that period, it is submitted that the Parents should and would be given the opportunity to prepare to care for the Children while under the supervision of the Director and with assistance provided by the Director and the Ministry of Children and Family Development (the “Ministry”). Background Previous Court Proceedings [ 4 ] Pursuant to section 35 (2) (

a) of the Act , on December 8, 2010 the court ordered that the Child CL remain in the interim custody of the Director pending a protection hearing. [ 5 ] On April 4, 2011 an order by consent was made pursuant to section 49 (7) (

b) and

section 60 of the Act that the Child CL remain in the temporary custody of the Director. Since the matter proceeded by consent, no finding was made that CL was in need of protection. [ 6 ] On May 10, 2012, following a presentation hearing an order was made, pursuant to section 35 (2) (

a) of the Act , that the Child G remain in the interim custody of the Director pending a protection hearing set to commence on May 16, 2012. There has been no protection hearing with respect to the Child G prior to the start of this trial. [ 7 ] On June 26, 2013 a further order was made pursuant to

section 45 of the Act extending the total time during which the Children CL and G were to be in temporary custody of the Director until the completion of the Director’s applications for continuing custody orders. [ 8 ] On October 9, 2013, with the Mother pregnant and expecting the Child L, the trial set on Courtenay family assize, commencing November 12, 2013, was adjourned to the Judicial Case Manager to set a two day trial to hear the Director’s applications to obtain continuing custody orders for CL and G and “any other children of [the Mother ] who are in the Director’s care” . [ 9 ] On March 3, 2014 , again after a presentation hearing, an order was made pursuant to section 35 (2) (

a) of the Act that the Child L remain in the interim custody of the Director and the matter was adjourned to March 19, 2014 to commence the protection hearing.

There has been no protection hearing with respect to the Child L prior to the start of this trial. [ 10 ] On March 19, 2014 an order was made adjourning the Director’s application for a continuing custody order for the Child L to the June 16, 2014 assize in Courtenay and further directing that it be heard with the continuing custody applications for the Child CL and the Child G. [ 11 ] A Court Plan of Care has been prepared and filed with the Court for each of the Children.

Each Court Plan of Care indicates that the Director intends to pursue permanency planning for the Child and to explore adoption options for that particular Child. The Parents [ 12 ] The Parents have had difficult lives. For significant periods of their upbringing they were each a child in the care of the Ministry or its predecessor in name. [ 13 ] The Parents have both been classified as a person with a disability by the Provincial Government of British Columbia.

Therefore both are financially reliant upon disability benefits, although each has been able to maintain a form of employment at various times over the past four years. The Father [ 14 ] The Father was diagnosed with FASD and a bipolar disorder in 2003. He takes medications daily. [ 15 ] There is a dispute on the evidence as to whether or not some of the Father’s disabilities stem in part from his illicit drug use, which is denied by the Father. He admits to having used marijuana in the past, on a once per week basis, and now only very occasionally.

On March 30, 2011 he tested positive for an opiate which he says was codeine taken for a broken bone following an accident. He says he despises hard drugs and alcohol. He underwent a further drug screening in July of 2014 but the formal results were not made available nor were they presented at trial. [ 16 ] He lived with his own father until age 12, then with his older sister until age 14 and thereafter essentially on his own except for a year spent living in a group home at age 15.

He has completed grade 9. [ 17 ] He subsequently resided in Alberta for approximate 2 ½ years, during which time he was in a common-law relationship with RD. There is a child B of that relationship with whom the Father has no contact. The Father was apparently placed on a one year recognizance with a no contact provision relating to RD and the child B, as a result of a domestic violence allegation against the Father.

Reference to this recognizance appears in the Panoka, Alberta RCMP report and the circumstances were referred to in the Father’s testimony. [ 18 ] The Father was also in a domestic relationship with a woman, identified herein as N, while he lived in Chilliwack. There was substantial conflict in that relationship and the Father indicates that N physically assaulted him by striking his head against a door frame and attempting to strangle him when she became aware of his emerging relationship with the Mother. This occurred at the time his relationship with N was about to or had ended.

He and the Mother moved to northern British Columbia, then back to Chilliwack before moving to the Comox Valley. [ 19 ] The Father has a dated minor criminal conviction. He recently learned of an outstanding warrant in Alberta for a breach of a court condition; he says that he was unaware of the breach and the warrant and has recently dealt with this outstanding matters. [ 20 ] He has relied upon disability payments and welfare for approximately the last 11 years and specifically on the disability pension for the last seven years.

At the outset of the hearing he had just recently gained employment 5 days per week at a local commercial mall. He described his job as janitorial-maintenance and manager of the mall, and testified that he was earning $11.00 per hour. It appears that he did not have that job at the conclusion of the hearing. [ 21 ] The Father has had long standing anger management issues which were noted on his Person With Disabilities Application and Physician Report dating back to 2006.

The Physician Report contained within that application also noted that the Father had “significant deficits” with cognitive and emotional function. In particular the noted significant deficits were with impulse control and attention or sustained concentration. These were rated as having a moderate or minimal impact on his daily life. It further discloses that the Father was described as having a cannabis dependency which was diagnostically coded as a “substance-related disorder”.

The Father denies that he ever had such a disorder notwithstanding that it appears in his application. [ 22 ] The witnesses called by the Director describe the Father in terms of having limited copings skills; he was portrayed as menacing, accusatory, and threatening and possessing an explosive temper. Examples were provided by these witnesses of situations where they were fearful of him or were intimidated by him.

Even Sadie Parker, a midwife who had provided care to the Mother and who was the only other witness called by the Parents, indicated that people at her clinic were afraid of the Father. [ 23 ] In the course of his evidence the Father made it very clear that numerous high conflict situations that continuously marked his life were to be blamed on others. He cited that it was their attitude towards him, things they said or their reactions to him or to the Mother.

There was no indication from him that he could be the cause of any of the conflict, nor that he should assume any portion of responsibility for these situations nor that they might arise out anger management or impulse control issues on his part. [ 24 ] The Father testified to and provided a confirming letter that he sought counselling for his anger management issues. He attended six weeks of Anger Management classes and one on one counselling with Johnathan Buchanan at Island Health. The classes and the counselling apparently started about a year before the hearing.

The Father says in his evidence at the trial that he just started to receive counselling from Mr. Buchanan again but contends that he does not have an anger problem but rather he says he has issues about “dealing with his response to anger”. [ 25 ] There was a suggestion in some of the evidence that the Father shared some native heritage but that apparently remains unconfirmed despite various inquiries that have been made. The Mother [ 26 ] The Mother apparently completed Grade 11 and then went back for her General Education Development Tests, which I understand may lead to obtaining a B.C.

Secondary School Equivalency Certificate. In the last few years, as well as receiving disability payments, she has held a number of different kinds of hospitality, culinary and service related jobs on a sustained basis. [ 27 ] The Mother testifies that she uses neither drugs nor alcohol. [ 28 ] The Mother was removed from the care of her biological mother and raised by her grandparents from approximately age 2 until approximately age 11. She then moved to the care of her aunt until reaching approximately age16. Thereafter she was in non-family foster care until the age of 19.

Upon reaching 19 she lived with the support of a Community Assisted Caregiver provided by Community Living Services. As I understand it, that arrangement continued until the Mother commenced living with the Father sometime in 2010.

[ 29 ] At age 8, the Mother was tested by her school district on the Wechsler Intelligence Scale for Children-Revised Edition (“WISC- R”). Based on the overall results of the test and using the WISC terminology the Mother’s composite score placed her at the 2 nd percentile in overall ability, meaning that when compared to other students who took this test she scored as well or better than 2% of those students and 98% of those students scored better than she did.

Her “Full Scale Score” was more than 2 standard deviations below average, placing her in what was described as the “Mild Intellectual Disabilities Range”. [ 30 ] The Mother underwent a comprehensive assessment undertaken by her then school district at approximately age 14. This was undertaken because of the Mother’s continuing problems, both at home and at school, with anger management, emotional regulation, peer relationships and social skills, all of which heightened in intensity when she was in grade 7.

Thus a Report of Educational Assessment was completed in May of 2003. [ 31 ] As part of the preparation of this Report of Educational Assessment for the Mother, a standardized test known as the Connor’s Rating Scales (“CRS”) was administered. The CRS is apparently a widely used behavioural observation system designed to be used by classroom teachers and parents. The results are used to determine the severity of a student’s problem behaviour in several areas. That student’s score is then compared to a wide range of youngsters of a similar age.

The Mother’s grade 7 classroom teacher, her counsellor and principal completed the Connors Teacher Rating Scale. The aunt with whom the Mother resided completed the parent’s portion of the assessment. [ 32 ] The Mother obtained CRS scores in the “Markedly Atypical Range” placing her at or above the 98 th percentile. This meant that the Mother’s scores were more problematic than 98% of the youngsters in her age range of between 12 to 14 years.

She obtained scores in the “Markedly Atypical Range” for the following dimensions: Oppositional; Hyperactivity; Anxious/Shy; Perfectionism; Social Problems; Emotional Liability, the Connors Global Index Total and the DSM-IV Hyperactive/Impulse Index. [ 33 ] A cautionary note was contained in the various school assessments admitted into evidence.

It was to the effect that the assessments were for current use at that time and the accuracy and relevance of the reports would change over time given the changing and developing nature of children and young people. [ 34 ] Based on medical and psychiatric reports prepared in 2007 and 2008 there is a reference to a family history of bipolar disorder specifically mentioning the Mother’s own biological mother.

There is also a recurring suggestion that the biological mother may have consumed alcohol throughout the Mother’s pregnancy. [ 35 ] Between the ages of 15 and 20, a number of medical and psychiatric referrals were made due to the Mother’s behaviour and attitude marked by uncontrollable loss of temper, impulsivity and loud and obnoxious outbursts which occurred again both at school and in the home . [ 36 ] In June 2004 the suggestion was made in a one of the professional reports that the Mother had fetal alcohol affects which had led to some abnormalities of her brain development.

Subsequent historical diagnoses also included possible Borderline Intellectual Functioning, Bipolar Disorder Not Otherwise Stated (NOS), and an adjustment disorder with mixed emotional features and Fetal Alcohol Spectrum. Various medications, therapies, counselling and continued support were among the things recommended in her treatment. [ 37 ] In January and February of 2012, the Mother’s physician referred her to psychiatrist Dr. Jeffrey Barber. In his January 31, 2012 report Dr. Barber indicated as follows: “I was unable to elicit any convincing history of bipolar disorder.

There does not appear to be any other Axis I diagnosis present. She has the facial features consistent with fetal alcohol syndrome. Unfortunately there is no available documentation of early growth delay or formal intellectual testing showing deficits.” [ 38 ] An earlier diagnosis of the Mother having an Auditory Processing Disorder was noted by a Dr. Hallman in June of 2007. This processing disorder is not to be confused with hearing impairment or a hearing loss which was subsequently detected in an audiogram completed on the Mother in August of 2007.

A letter from a Registered Hearing Instrument Practitioner dated July 4, 2014 admitted into evidence stated that the Mother required the use of hearing aids to assist with conversation and to hear environmental sounds. [ 39 ] From the testimony of the Mother I understand that the hearing aids she had received from the Province’s social assistance program were stolen at some point in 2012 and were not replaced. At the commencement of her testimony on the afternoon of July 11, 2014, and while on the witness stand, she inserted a loaned pair of hearing aids that she had just obtained.

She also indicated that she could not hear some of the earlier testimony in the trial. Her legal counsel assured the Court that there were no issues arising from this. When she resumed her evidence in chief on September 8, 2014 she was not wearing or using the hearing aids. Therefore she was instructed by the Court to make it known if she did not hear any of the proceedings. [ 40 ] The Mother testified that she shares some native heritage but that remains unconfirmed notwithstanding various follow up inquiries made by the Ministry.

The Relationship of the Parents [ 41 ] The Parents have been in a relationship for a period of some six years. As noted above they lived for short periods of time in Chilliwack and then in northern British Columbia prior to their arrival in the Comox Valley.

At that time the Mother was pregnant with the Child CL. [ 42 ] As previously noted and as further described below, the nature of the Parents’ relationship was problematic from a child protection prospective as soon as the Parents became known to Ministry representatives in the Comox Valley. [ 43 ] According to the Mother’s statements made to Ministry officials, the Mother and Father physically separated for a period of

time apparently between July and approximately November in 2011 following the birth of the Child CL. The Mother continued to live in the Comox Valley and the Father moved to Surrey British Columbia. Upon the occurrence of the separation, the Mother portrayed this as being permanent in nature.

There is some dispute as to whether or not that separation was due to economic reasons or was intended to allay concerns of the Director about the continuation of the Parents’ domestic relationship from which the various child protection concerns arose. [ 44 ] There were various reports of the Parents being seen together or communicating with each other during this alleged period of separation. During this alleged period of separation the Mother also became pregnant with the Child G; the Father is that child’s biological parent.

Clearly the Parents were in contact more than they were admitting to the Ministry officials. In fact the Father testified that he and the Mother never really separated. Matters Giving Rise to Ministry Involvement [ 45 ] The Parents were at one time essentially homeless for approximately 6 months upon their arrival in the Comox Valley and shortly before the birth of CL.

Obtaining and maintaining stable housing in the Comox Valley has been challenging for them over the last four years. [ 46 ] Beginning around June through to November of 2010 and prior to the birth of CL the Ministry had received five reports from citizen sources and from community professionals about the Parents. These reports dealt with a variety of concerns including mental health issues, domestic violence, aggressive behaviour, and the Parents’ ability to care for an infant child.

The basis for these reports is disputed by the Parents. [ 47 ] All three Children were removed in succession by the Ministry from the Parents shortly following the respective times of their birth. Thus Children have remained in care and in a foster placement for their entire lives. [ 48 ] Therefore, since 2010 there has been very significant Ministry involvement in the lives of the Parents and subsequently the lives of their three Children.

There has also been significantly high conflict and mistrust in the relationship between the Parents on one hand and the Ministry social workers and its contractors on the other. Each side blames the other for the highly conflicted situation. Child Protection Concerns [ 49 ] The Ministry officials followed up on the reports that had been received about the Parents following their arrival in the Comox Valley. There were significantly increasing and continuing concerns about domestic violence in the relationship between the Parents both prior to the birth of CL and continuing thereafter.

In addition there have been a significant number of reports made to the RCMP, including very recent reports, which deal with and describe the existence of this conflict and violence in the Parents’ relationship. [ 50 ] Similar reports were received from community professionals in August of 2011 when the Mother was pregnant with the Child G.

The concerns were about the Parents fighting, inappropriate communication between each other, untoward behaviour in the presence of others and aggressive behaviour on the part of the Father both towards the Mother and other individuals. [ 51 ] The Ministry Social Workers Collard and Davis and Family Development Worker Partridge testified about their first hand observations of incidents of abuse and conflict within the Parents’ relationship. [ 52 ] At various times after the commencement of Ministry involvement with the Parents, the Mother disclosed to Ministry social workers and family development workers that she had been the victim of domestic abuse at the hands of the Father.

There was also a disclosure of increased domestic violence perpetrated by the Father on the Mother. These allegations were taken very seriously by the Ministry representatives. Accordingly reports were made to the RCMP. [ 53 ] Thereafter following the initial disclosures there emerged a pattern of the Mother both minimizing or covering up incidents of domestic violence and also denying such events took place or recanting specific allegations of such violence and abuse. The Mother even went so far as to formally complain against Family Development Worker Liane Partridge alleging that Ms.

Partridge’s disclosure of the Mother’s allegations to the RCMP amounted to a breach of confidentiality. [ 54 ] On some occasions the Mother went so far as to suggest to the RCMP that she had made up the story of an assault being committed upon her by the Father. In cross-examination she denied a recollection of any specific events of this type. [ 55 ] This denial of her recollection was made even in the face of the Mother’s admitted complaint made against Ms. Partridge.

The Ministry Family Plan [ 56 ] In May 2011 the Parents and the Ministry entered into a family plan (the “Family Plan”) which identified three priorities that needed to be addressed by the Parents: (1) partner/adult relationships (2) parenting skills/parent’s actions toward the child CL (3) mental health/coping skills [ 57 ] The first priority to be addressed was dealing with the reports of the Parents’ inappropriate behaviour in the community and specifically learning to deal positively with conflict and demonstrating the application of learned skills from relationship counselling. [ 58 ] The second priority was dealing with improving their parenting skills with CL and undergoing a parenting capacity assessment.

This resulted in the completion of the report authored by Dr. Raymond Shred, referred to below.

[ 59 ] The third priority was to deal with the Parents’ mental health and coping skills through services provided by designated agencies and specifically to determine “whether service planning barriers” encountered by the Parents resulted from the Parents’ developmental delays or existing mental health conditions. [ 60 ] Various supports were identified in the Family Plan to assist the Parents in successfully addressing the Ministry concerns and in achieving realization of these goals.

These supports included relationship counselling with certified counsellor, Leslie Wells, working directly with Liane Partridge the Family Development Worker and working with the Ministry social workers.

The identified supports included obtaining counselling and obtaining reports from Adult Mental Health workers, counsellors and medical professionals. [ 61 ] The evidence adduced by the Director indicates all of these concerns still remained outstanding as of the time of the hearing before this Court. [ 62 ] The Father testified that he had never seen the Family Plan and notwithstanding the appearance of his signature on the document he testified that he did not remember signing it. [ 63 ] Relationship counsellor Leslie Wells, who holds a designation as a registered clinical counsellor, reported to the Ministry officials and to Dr.

Shred about her significant concerns about the Parents’ relationship and in particular the significant emotional explosions that occurred during the counselling sessions. Notwithstanding the completion of four of the multitude of planned counselling sessions, zero progress was being made; Ms. Wells ultimately concluded that there was no hope for improvement in the Parents’ highly conflicted and abusive relationship. She reported that the relationship was explosive and therefore concluded that the Parents needed to separate. Concerns about the Mother’s safety were also expressed.

Leslie Wells did not provide viva voce evidence at the hearing. [ 64 ] Again the Parents take issue with these conclusions. They deny the existence of any problem with domestic violence and any conflict in their relationship. They characterize Leslie Wells as being responsible for problems observed by her in the counselling sessions and state that she was “not a good fit for them”. The Children [ 65 ] The evidence is that the Child CL is a shy, sweet child who is characterized as having a “global delay” in her development. She has a one-on-one support worker while at day care. She wears glasses.

In particular there is a delay in her language development and in some of her motor skills. She is being treated by an occupational therapist. [ 66 ] The Child G is described as sweet energetic child who is meeting her developmental milestones. She is in the early stages of verbally expressing herself. The evidence indicates that due to her high energy and level of activity she requires to be watched by an adult with a degree of care. Based on the evidence of Family Development Worker Partridge there is a concern that when in the company of her Mother, the Child G is “emotionless and flat”.

This apparently is not something that the foster parents have observed when G is in their presence. [ 67 ] The Child L is meeting his normal developmental milestones and due to his very tender years obviously is just in the process of developing and displaying his personality. [ 68 ] CL and G reside in the same foster home. L is in a separate foster home suitable for an infant. The Children have formed an attachment to their foster parents. [ 69 ] The Ministry arranges for the Children have regular contact with each other.

The Parents Relationship and Interaction with the Children [ 70 ] There have been material changes in each Parent’s interaction with the Children while in care. In particular there has been a reduced level of involvement with the Children and declining opportunities for each Parent to have continued engagement with the Children. [ 71 ] The Mother’s supervised visitation with the Children, while each has been in care, has continued at different times and at different locations. As time has passed there has been a reduced frequency of visitation.

At the time of the hearing the Mother was having access limited of one visit per month of two hours in duration. [ 72 ] When the Child CL was initially removed and placed under a temporary custody order shortly after her birth, both Parents had supervised access to her. The Mother was observed during the visits to be quite volatile and with quickly changing moods, swinging from good to bad and back to good, when the Father was present at the supervised visitations. There were displays of anger between the Mother and the Father at every visit with the Father berating and acting abusively towards the Mother.

The Father also used menacing and threatening tones towards the Mother, which tones were also directed at the supervisors. The Father’s supervised visitation along with the Mother occurred twice per week for about 6 months. The Father’s visitation was subsequently suspended because of his untoward behaviour in his dealings with Ministry officials and the Mother. Therefore the Father’s visits with CL have been very limited in subsequent years and virtually non-existent. [ 73 ] There have been few if any visits by the Father with the other two Children G and L since they were taken into care.

Therefore there has been very little contact between the Father and these two Children. He was present at the time of the birth of the Child L. However, he was unable to attend the birth of the Child G because of a physical altercation occurring on his way to the hospital, during which he says he was physically attacked, resulting in a police attendance.

Except for the Father’s early visits with G and L Ministry officials have not allowed him to have any further supervised access to those two of the Children. [ 74 ] The evidence of the Ministry witnesses, in particular Liane Partridge, regarding the Father’s early interaction with CL during the supervised visits is that he was quite attentive and quite “hands on” with diapering and holding her, but it was if he did not trust the

Mother to do these tasks.

The Father demonstrated low tolerance for toddler behaviour and reprimanded CL for her behaviour when CL was only 1 to 1 ½ years old. [ 75 ] The cause of this overall situation of limited or no access for the Parents with the Children is an issue in dispute between the parties, as will be discussed below. [ 76 ] There have been several different Ministry social workers involved in the Parents’ child protection files. [ 77 ] However, for the most part the supervised visitations by the Mother have been overseen by Liane Partridge, a Family Development Worker employed by Comox Valley Family Services Association.

It contracts with the Ministry to provide Ministry clients with various family support services. Ms. Partridge has 15 years’ experience in this role. She described the role as teaching parenting skills, educating parents, teaching them about life skills including financial and household training and providing them with support to improve those skills. Simply put it includes anything that helps provide a safe home for the family. [ 78 ] At the completion of each two hour supervised visit, Ms.

Partridge or her substitute, Heather Sam completed a “Supervised Visit Report” which provided details of the participants, timing and location of the visits, cleanliness of the residence used for the visits, where applicable, and also chronicled observations about the “Parents Attitude/Behaviours During Visit”, “Children’s Attitude/ Behaviours During Visit” and “Interventions or Critical Incidents”.

The numerous Supervised Visit Reports were all admitted into evidence. [ 79 ] The Supervised Visit Reports contain a number repeated and continuing concerns about the Mother’s “attitude and behaviours” which were also the subject matter of the viva-voce evidence of Liane Partridge, and Ministry social workers Tammy Collard and Tanya Davis. [ 80 ] This evidence was given in the context of what can be characterized as the Mother’s lack of parenting capacity.

Of particular concern was the observation that the Mother was not able to retain and implement necessary parenting skills despite years of intensive support and instruction provided to the Mother through resources provided by the Ministry. Simply put, there was little if any improvement in the Mother’s parenting skills over a span of approximately 4 years. [ 81 ] Also these Ministry witnesses testified about the Mother’s lack of ability to read the Children’s cues, to interpret situations and appropriately respond to the needs of the Children.

There was a lack of her understanding about age appropriate child development and her inability to foresee safety issues with respect to the Children. [ 82 ] Concerns were also expressed about the Mother’s lack of attachment, lack of expressions of physical affection and lack of face to face interaction between the Mother and the Children.

Specifically some concerns were expressed about the Mother’s lack of willingness or ability to provide appropriate levels of attention to all of the Children when they were in her presence. [ 83 ] There were notable examples of the Mother being engaged in self focused activities such as texting and speaking to the supervisors about her personal situation and venting about her problems instead of making productive use of her supervised visits; there were other examples of her focusing on one of the Children to the exclusion of or ignoring the other Children. Ms.

Partridge described how the Mother treated CL like an “inanimate object” in her early years. Now the Mother does not acknowledge the Children’s developmental milestones and does not speak to or engage with the Children but rather spends most of her time dressing and undressing one of the Children, now usually the Child L. Dressing and diapering has been a consistent focus of the Mother throughout all supervised visits apparently to the exclusion of other activities. [ 84 ] The Supervised Visit Reports and Ms.

Partridge’s viva voce detail a large number of child safety concerns observed during the Parents’ supervised visits and particularly the visits of the Mother. These concerns occurred during feeding and dressing, to the holding and supervision of the Children by the Mother and the lack of adequate observation of and recognition of potential child hazards while engaging in these activities. [ 85 ] In the course of her evidence, when asked about how she felt about the prospect of the Children being placed with the Parents, Ms.

Partridge expressed great concern about the excessive domestic violence, about abuse and neglect and for the Children’s lives being at risk. She then spontaneously became emotionally overwhelmed and broke down and cried. [ 86 ] There was abundant evidence about the numerous supports and family services offered by the Ministry to the Parents since the Ministry became involved in their lives and those of their Children commencing some 4 years ago.

The supports and services include those provided by Mental Health and Addictions Services; group and relationship counselling, Triple P Parenting, the services of two family development worker who were made available to assist with development of the Parents’ parenting skills, life skills, household management and to supervise parental visits with the Children; a Roots Assessment; services from Community Living British Columbia, housing assistance through the Friendship Center, and anger management counselling and victim services support for the Mother. [ 87 ] Notwithstanding that numerous resources have been made available, there is a clear pattern, highlighted by several specific instances, of the Parents not being cooperative with the service providers or complaining about them.

In one instance the Mother alleged that she was sexually assaulted by a Ministry worker who allegedly touched the Mother’s breast while in the course of offering breast feeding instruction. [ 88 ] Especially in the case of the Father there is clear evidence that he could not or would not work in a reasonable fashion with the Family Development Workers or the Ministry social workers.

Specifically he failed to complete program such as the Triple P Parenting Program and did not follow up adequately with the services available from Mental Health and Addictions, contending that he was told by the service provider that he did not require their available programs because he was “too highly qualified”. [ 89 ] The Parents take issue with a numbers of the conclusions reached by the Ministry social workers and its contractors and the numerous concerns expressed by all of them.

The Shred Report [ 90 ] After CL was taken into care, the Ministry engaged the services of Dr. Raymond Shred, a registered psychologist, who has practiced in the area of child and adult clinical psychology for approximately 14 years. Among his qualifications, Dr. Shred has been accepted as a an expert witness in the areas of: effects of sexual abuse on children, the effect of family violence on children, child psychology, the effects of divorce on children and the preparation and presentation of parenting capacity assessments. Dr.

Shred was qualified and accepted as an expert in these proceedings for the preparation and presentation of parental capacity assessment reports. [ 91 ] Dr. Shred prepared a Psychological Assessment Report which specifically provided a parenting capacity assessment of the Mother (the “Shred Report”). It was completed on November 14, 2011. At the time of preparation of the Shred Report the Mother was 22 years old and the only child then born and subject of the Director’s concerns was CL. The Mother and the Father were reportedly separated at that time, based upon information received by Dr.

Shred from both the Ministry and the Mother. [ 92 ] The Shred Report was admitted into evidence at the hearing. Also Dr. Shred provided viva voce evidence. No parenting capacity assessment report was completed on the Father nor does the Shred Report consider the couple’s parenting capacity. That would have occurred if the Parents were known to be residing or intending upon residing together, which of course was contrary to what was told to Dr. Shred. [ 93 ] Significant reliance is placed upon the conclusions reached in the Shred Report by the Director.

The Parents challenge significant portions of the basis and assumptions utilized in the Shred Report and the conclusions reached by the Shred Report. [ 94 ] The Shred Report is comprehensive in nature. Its stated goal was “to gather information necessary to make recommendations regarding the safety and well-being of the (child) involved”.

The Shred Report acknowledges it has inherent limitations which arise from the various informational sources, testing and self-reporting utilized. [ 95 ] Specifically it notes that: “information in this report was obtained from multiple sources and the recommendations were made based on information that was consistent across sources.… My role in conducting this assessment was to look for commonalities among the sources of information.” [ 96 ] Dr.

Shred conducted several interviews with the Mother, numerous Ministry officials and other professionals who had dealt with the Mother and in some instances with the Mother and CL. He reviewed an extensive number of documents contained within the Ministry files about the Mother. He also conducted a two hour observation of the Mother with CL. [ 97 ] The Shred Report indicates that his evaluation of the Mother detected no signs of bipolar disorder.

The results of other psychological testing were deemed to be inconclusive owing in part to many unusual responses provided by the Mother. [ 98 ] Based on the psychological testing of the Mother completed by Dr. Shred he found that she is functioning at the “borderline level of intelligence”. [ 99 ] Dr. Shred further noted that: “her learning profile and her behavior as observed by numerous reporters are consistent with the presence of Fetal Alcohol Spectrum Disorder. Central characteristics of the disorder tend to be memory problems and the relative inability to learn from one’s experience.

It does not mean that a total inability to learn, but rather a different way of learning that is usual for most people.” [ 100 ] The earlier diagnosis of the Mother by Dr. Hallman of an Auditory Processing Disorder was also noted. [ 101 ] Dr. Shred formed some opinions from the observed interactions between the Mother and CL. He noted concerns relating to feeding, physical care and diapering. He further noted that none of his observations could be regarded as “directly harmful” to the Child CL or put CL in any danger.

However, they did raise concerns about the Mother’s ability to provide appropriate care in circumstances where she is not being observed by a visit supervisor and a psychologist. He expressed concerns that although attentive, there were not very many examples of “playful, affectionate interaction” between the Mother and CL. [ 102 ] Dr. Shred notes that one of the ways of looking at the ability of a parent to provide a safe and nurturing environment for their child is to look at the existing risk and protective factors.

The risk factors include child risk factors of which none were identified as being present in this case because CL was not born prematurely and had a positive, cooperative temperament. Dr. Shred observes that there may be some delays in CL’s development but those were not significant. [ 103 ] However, Dr. Shred goes on to remark that in the present case there are a number of parental risk factors. In particular he noted some concerning personality characteristics of the Mother.

These included her cognitive delays, impaired judgment and poor problem- solving skills, low tolerance for stress or frustration and her difficulties with emotion regulation and her inaccurate knowledge and expectations about child development. [ 104 ] However Dr. Shred was able to identify some important protective factors including the Mother’s ability to manage her financial situation and the numerous resources that had been made available to her including child care services. [ 105 ] Having regard to all of these factors Dr.

Shred concludes at page 43 as follows: “Overall, it is my opinion that the risk factors far out way the protective factors regarding [the Mother’s] ability to provide a safe and nurturing environment for [CL]. At this point in assessment I would be most likely to recommend that [CL ]remain in care and would

likely conclude that [the Mother] would not be able to provide a nurturing and safe environment for [CL]. If [the Mother] is not able to provide consistent care when she is being supervised, I find it difficult to imagine that she would be able to do so if left on her own without supervision.” [ 106 ] Specifically four referral questions were asked of Dr. Shred. He provides the answers set out below to those questions, found on pages 44 to 46 of the Shred Report. [ 107 ] First: Can the Mother learn and generalize the learning? Does she have insight? [ 108 ] In answer to the first part of this question Dr.

Shred concludes that the Mother was able to learn and generalize from her learning but at a different rate and with some difficulties not experienced by other people. Her Auditory Processing Disorder made communicating information verbally somewhat difficult for her. Although she has the ability to say the right thing at different times Dr. Shred was unclear in his own mind as to whether she has the ability to follow through on plans. [ 109 ] In response to the second part of the question, he finds her to have less well-developed insight than other adults her age.

Specifically he was very concerned when she told him that “she has absolutely no worries about being a parent”. In response to that statement Dr. Shred says: “I worry greatly when people do not have the insight to be aware that there are numerous ways to cause harm inadvertently to their children through our parenting actions. Worrying from my perspective includes the ability to foresee potential problems and to think of possible solutions before the problems arise.

Having no worries at all suggests that one is not aware of potential problems.” [ 110 ] Second: Will the Mother be able to foresee upcoming developmental gains and be able to support and encourage baby CL to meet them? [ 111 ] In response to this question Dr. Shred concludes that the Mother has trouble in this area. In particular she has inappropriate age related expectations for CL and demonstrates a lack of concern about CL’s developmental status. He concludes that she lacks insight to engage in activities with CL that would help her master the next step of her development, such as walking.

Thus the Mother will likely be reactive rather than proactive to each developmental level that CL attains. Dr. Shred suggests that daily exposure by the Mother to CL with the assistance of an expert in child rearing may be helpful for the Mother in developing a more realistic understanding of CL’s developmental status and the fact that CL was not performing at the expected level. [ 112 ] Third: What is the Mother’s IQ? How stable is her perception of day-to-day events? [ 113 ] Based on his testing, Dr.

Shred concludes that the Mother was in the “borderline range” with respect to her IQ and that her Full Scale IQ placed her in the 8 th percentile, meaning that she does better than only 8% of people her age in terms of intellectual ability. While noting that he did not have enough information to provide a definitive answer to the question about the stability of the Mother’s perception of day-to-day events, Dr. Shred points to a number of concerning situations which tended to demonstrate a somewhat diminished perception of day-to-day events. [ 114 ] Fourth: Can the Mother protect baby CL?

How does the Mother perceive the Father’s future role in her life? [ 115 ] In response, Dr. Shred indicates that he believes the Mother has very good intentions of protecting CL. But he has a concern that the Mother may not be able to protect CL in a dangerous situation through her own inattention or impulsive behaviour. [ 116 ] In response to the second part of this question, Dr. Shred indicates he could not answer the question with any degree of certainty.

This is based on the Mother’s explicit statement to him that she had no plans to resume her relationship with the Father even in the eventuality that CL was not returned to her care. Dr. Shred notes that this despite this assertion by the Mother, there were numerous reports and observations made to the Ministry about the Parents being observed in each other’s company. [ 117 ] Dr.

Shred notes and apparently accepts the professional opinion expressed to him by Leslie Wells, in her capacity as a therapist, formed on the basis of her observations at the Parents’ therapy counselling sessions that: “there were no positive aspects to their relationship …Her opinion was that the relationship was dangerous to [the Mother].” [ 118 ] As it turned out the Parents did resume their relationship and once again commenced to cohabitate following the completion of the Shred Report and likely were not actually separated. [ 119 ] In his viva voce evidence Dr. Shred adopted the

summary of recommendations contained in the Shred Report. He further indicated that the risk factors outlined in the Shred Report remained a present concern and it was “highly unlikely” that things would have improved. [ 120 ] He further indicated that without “a major intervention” there was a low chance of any change occurring. He also expressed the view that the problems and concerns identified in the Shred Report for the Child CL would now be magnified with the addition of two more children, who potentially could fall under the care of the Mother. [ 121 ] Dr. Shred did acknowledge that immediately prior to being cross examined he became aware of a hearing test that showed the

Mother had marked hearing loss in both ears. He stated that hearing loss is different than the Mother’s Auditory Processing Disorder but hearing impairment could have impact on the validity of tests that had been conducted on the Mother over the years. The Ministry’s Plan in the Event of the Making of a Continuing Custody Order [ 122 ] The Ministry’s plan should a CCO be made is to find a favourable adoptive placement. Based on the evidence of Social Worker Davis the chances for adoption of children are increased for children of a younger age.

The Ministry is hopeful that at present there may be a family willing and able to take all three Children together. Relevant Provisions of the Child, Family and Community Services Act [ 123 ] The following sections of the Act are of particular relevance in the case before the bar. 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. 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 circumstances that caused the Director to remove the child,

b) an interim plan of care for the child, including, in the case of an aboriginal child, the steps to be taken to preserve the child's aboriginal identity, and

c) information about any less disruptive measures considered by the Director before removing the child.

(2) At the conclusion of the hearing, the court must make

a) an interim order that the child be in the custody of the Director,

b) an interim order that the child be returned to or remain with the parent apparently entitled to custody, under the supervision of the Director,

c) an order that the child be returned to or remain with the parent apparently entitled to custody, or

d) an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the Director's supervision. Protection hearing 40

(1) At the protection hearing the court must determine whether the child needs protection.

(2) If the court finds that the child does not need protection, it must

a) if the child was removed, order the Director to return the child as soon as possible to the parent apparently entitled to custody unless the child has already been returned, and

b) terminate any interim order made under sections 33.2 (2), 35 (2) and 36 (3).

(3) If the court finds that the child needs protection, it

a) must consider the plan of care presented by the Director, and

b) may hear any more evidence the court considers necessary to help it determine which order should be made under

section 41. Orders made at protection hearing 41

(1) Subject to subsection (2.1), if the court finds that the child needs protection, it must make one of the following orders in the child's best interests:

a) that the child be returned to or remain in the custody of the parent apparently entitled to custody and be under the Director's supervision for a specified period of up to 6 months;

b) that the child be placed in the custody of a person other than a parent with the consent of the other person and under the Director's supervision, for a specified period in accordance with

section 43;

c) that the child remain or be placed in the custody of the Director for a specified period in accordance with

section 43;

d) that the child be placed in the continuing custody of the Director.

(1.1) When an order is made under subsection (1) (

b) or (c), the court may order that on the expiry of the order under subsection (1) (

b) or (

c) the child

a) be returned to the parent, and

b) be under the Director's supervision for a specified period of up to 6 months.

(2) The court must not order under subsection (1) (

d) that the child be placed in the continuing custody of the Director unless

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found,

b) a parent is unable or unwilling to resume custody of the child, or

c) the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interests to be returned to the parent.

(2.1) If an order was made under

section 33.2 (2), the child has not been removed since that order was made and the court finds that the child needs protection, the court must order that the director supervise the child's care for a specified period of up to 6 months.

(3) The court may attach to an order under this

section any terms or conditions recommended by the director to implement a plan of care. Continuing custody hearing and orders 49

(1) Not sooner than 60 days before a temporary custody order expires, the Director may apply to the court for a continuing custody order.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearing

must be served as follows: (

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

b) on each parent; (

c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band; (c.1) if the child is a Nis g a'a child, on a designated representative of the Nis g a'a Lisims Government; (c.2) if the child is a treaty first nation child, on a designated representative of the treaty first nation; (

d) if the child is neither a Nis g a'a child nor a treaty first nation child and is neither registered nor entitled to be registered as a member of an Indian band but is an aboriginal child, on a designated representative of an aboriginal community that has been identified by (

i) the child, if 12 years of age or over, or (ii) the parent, if the child is under 12 years of age; (d.1) any person who has been made a party under section 39 (4); (d.2) any person who has custody of the child under section 41 (1) (b), 42.2 (4) (c), 54.01 (9) (

b) or subsection (7) (

b) of this section; (

e) on the Public Guardian and Trustee, if appointed as the child's property guardian under

section 58.

(3) If the persons referred to in subsection (2) (

b) to (d.2) appear at the continuing custody hearing, they are entitled

a) to be parties at the hearing, and

b) to notice of a hearing under

section 42.2, 54, 56 or 57 and, if they appear at the hearing, to be a party at that hearing.

(4) The court must order that the child be placed in the continuing custody of the Director if

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or

b) a parent is unable or unwilling to resume custody of the child.

(5) The court may order that the child be placed in the continuing custody of the Director if there is no significant likelihood that

a) the circumstances that led to the child's removal will improve within a reasonable time, or

b) the parent will be able to meet the child's needs.

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

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

b) the plan of care, and

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders:

a) that the child be returned to the custody of the parent apparently entitled to custody;

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months;

c) that the child remain or be placed in the temporary custody of the Director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the Director supervise the child's care for a specified period of up to 6 months.

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

b) or (

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

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

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

b) that the child be returned to the parent apparently entitled to custody. Consent orders 60

(1) With the written consent of the following, the court may, at any time after a presentation hearing, make any custody or supervision order that is provided for in this Part, other than a transfer of custody under

section 54.1, but including an order transferring

custody of a child under

section 54.01 (5) and a continuing custody order:

a) the Director;

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

c) each parent of the child;

d) if the child is to be placed for a specified period in the custody of a person other than a Director, that person; i. any person who has been made a party under section 39 (4);

e) if the child is an aboriginal child, the person who is or would have been entitled under section 38 (1) (c), (c.1), (c.2) or (

d) to notice of any protection hearing concerning the child.

(1.1) Despite subsection (1), if a child is in the care of a person other than the child's parent under an agreement made under

section 8, the court may, with the written consent of the persons referred to in subsection (1) of this section, make an order under

section 54.01 (5) transferring custody of the child to the person other than the child's parent.

(2) Despite any other provision of this Act , the court may make an order under this

section without a hearing, the completion of a hearing or the giving of evidence, but it must be satisfied that each person whose consent is required, other than those mentioned in subsection (1) (

a) and (

e) a) has been advised to consult with independent legal counsel before signing the consent,

b) understands the nature and consequences of the consent, and

c) has given voluntary consent to the order sought.

(3) The court may dispense with any consent required under subsections (1) and (6), if the court considers it in the child's best interests to do so.

(4) An order may be made under this

section without the court finding that the child needs protection.

(5) A consent by a parent to an order under this

section is not an admission by the parent of any grounds alleged by a Director for removing the child.

(6) In addition to its powers under subsection (1) and subject to subsection (7), the court may, with the written consent of the parties, make any other order mentioned in this Act , including a transfer of custody under

section 54.1.

(7) An order under subsection (6) to transfer custody under

section 54.1 must not be made unless

a) the continuing custody order was made by consent,

b) the time limit under section 81 (2) in relation to the continuing custody order has expired and no extension under section 81 (8) has been granted, or

c) all appeals related to the continuing custody order have been heard and the continuing custody order has been upheld. The Applicable Tests To Determine Whether a Continuing Custody Order Can Be Granted [ 124 ] Our Court of Appeal has considered the applicable test for CCO’s in B. (B.) v. British Columbia (Director of Child, Family and Community Services) 2005 BCCA 46 ; [2005] B.C.J. No. 124. [“B.(B)”]. [ 125 ] Different tests will apply for determining whether a CCO can be granted in favour of the Director under s 41(1)(

d) of the Act on one hand and under s 49(4) and (5) on the other. [ 126 ] Section 41(1) (

d) applies following a finding of a need for protection at a protection hearing. Section 49(5) applies following a period of temporary custody. [ 127 ] In the present case, the Child CL was subject to the interim custody order under s. 35(2)(

a) pending a protection hearing, made on December 8, 2010. CL then remained in the care of the Director subject to a temporary custody order under s. 49(7)(b), with the consent of the Parents and the Director all pursuant to s. 60. It was made on April 4, 2011.

Because that order proceeded by consent, there was no finding made or any acknowledgment of CL being in need of protection at that time. [ 128 ] Since that date there has never been a finding or acknowledgment of a need of protection for the Child CL but she has remained subject to a temporary custody order since December 8, 2010. [ 129 ] Therefore the applicable test in relation to the granting of a CCO application for CL is under s. 49 (5) and (6). [ 130 ] Furthermore, the Parents’ application for a “last chance order” is made pursuant to section 49(7)(c). [ 131 ] Also, Child G was subject to an interim custody order under s. 35(2)(

a) pending the protection hearing, made on May 10, 2012

and Child L was subject to the same order, made on March 3, 2014. No protection hearing has occurred and no

section 60 consent order has been made and there is finding or acknowledgement of a need of protection for either the Child G or the Child L. [ 132 ] Therefore the Director is seeking a CCO for each of Child G and Child L under section 41(1)(d). Accordingly, the applicable test in relation to the CCO applications for the Children G and L falls under

section s. 41(2). The Parents application for a “last chance order” is therefore made pursuant to section 41 (1)( c). The Requirement for a

Section 40 Finding that a Child is in Need of Protection [ 133 ] Our Court of Appeal has noted in the B.[B.] case supra, that there is no provision in the Act expressly requiring a court to find a child in need of protection before considering a CCO under

section 49. [ 134 ] In that case the Court of Appeal approved of the decision of Rae P.C.J. In Re J.S. [1998] B.C.J. No 1443 which held that the making of a

section 40 finding that a child is in need of protection must be made from the date that a child is removed from their parents’ care. Such a finding must be made before a CCO can be made. [see: B.(B.) paragraphs 23 to 25.] [ 135 ] Madam Justice Huddart notes the following about the necessary approach of making such a

section 41 finding at paragraph 25 in B.(B.): This approach has the important advantage of providing a baseline for the assessment of a child's needs and parents' capacities under s. 49, just as it does for one under s. 41. On applications under both sections, the circumstances that led to the child's removal are fundamental to the choice of the appropriate order. It also permits the Court to make findings of fact about the parents' reasons for consenting to a temporary custody order. Those reasons are likely to be an important circumstance to be considered on a continuing custody application.

Position of the Director [ 136 ] In submissions the Director says that based upon the Director’s evidence led at the hearing the Director has demonstrated that at the time of the removal of each Child such Child was in need of protection. [ 137 ] The Director says that the evidence supports the conclusion that there remains considerable risk of harm to the Children if they were to be placed in the custody of the Parents. Notwithstanding the passage of four years, the child protection concerns identified in the Family Plan have not been addressed.

Parenting capacity, conflict and domestic violence and anger management/impulse control remain significant child protection concerns. [ 138 ] In addition the Director says that on the basis of the totality of the evidence presented, the Parents would not be able to meet the Children’s needs and neither Parent is capable of either resuming or assuming custody of the Children. [ 139 ] In that regard, and specifically with respect to the Mother’s parenting capacity, reliance is placed upon the opinions expressed by Dr.

Shred and in the Shred Report along with the numerous and lengthy observations of the Ministry social workers and the Family Development Workers. [ 140 ] With respect to the Father, the Director cites the lack of visitation by the Father with the Children for a number of years. It is submitted this stems from his inability to work with the Family Development Workers and the Social Workers. He did not complete the Triple P parenting program and he failed to follow up with Mental Health and Addictions, apparently having formed his own opinion which was expressed in his evidence that he was “too highly qualified”.

The Father has failed to deal with anger management and impulse control issues. [ 141 ] Furthermore, the Director submits that a “last chance order” in this case is inappropriate because the evidence does not support a finding that there is a significant likelihood that the circumstances leading to the removal of the Children will improve or that the Parents will be able to meet the Children’s needs within a reasonable period of time. [ 142 ] In addition, the Director submits that a favourable placement by way of adoption is in the best interests of all of the Children.

Specifically it will provide the Children with a necessary permanent and stable home and with caregivers who will be able to meet their physical, emotional and financial needs in a safe and secure environment. The making of the six month last chance order will amount to a considerable further delay of a timely decision relating to the Children, being a guiding principles under

section 2 (

g) of the Act . Position of Parents [ 143 ] There are some distinct themes shared by the Parents in their submissions. [ 144 ] First, they both contend that there is no basis for the Director’s concern about family violence or domestic abuse in their relationship and say that there is no corroborating evidence to support that concern. They deny the existence of family violence or domestic abuse.

They point to a lack of criminal charges or reports of actual physical violence. [ 145 ] It is certainly conceded by the Father in submissions that the Parents have had arguments during their relationship which may have become heated causing the neighbours to complain about noise. The Parents testified and say in their submissions that the numerous reports made to the Ministry and to the police arise from the necessity of the Parents to speak loudly to each other because of the Mother’s hearing impairment and according to the Father’s evidence, the necessity of the Mother having to yell when she speaks to him.

Furthermore, the various incidents observed by Ministry officials were mistakenly interpreted as escalating domestic arguments between the Parents and as threats directed at Ministry personnel, when in fact what was being observed was the Father dealing with a high conflict situation with a neighbour. [ 146 ] Second they contend that they have taken and wish to take counselling to improve the quality of their relationship. The Father

has addressed anger management issues by obtaining counselling which he intends to continue within the future. [ 147 ] Third they submit there is no evidence of neglect of the Children by the Parents since the Parents never have had the care of the Children and their interaction has been limited to supervised visits. They say in fact that the Parents have been able to maintain suitable and stable housing for themselves and available for the Children during the last two years and have thereby addressed the initial concerns of the Ministry at the time of birth of CL.

They also meet their financial needs through their disability payments and their employment. [ 148 ] Fourth they contend that the Ministry has systematically deprived the Parents of a real chance to care for their Children and the chance to learn to care for them. Specifically when any care opportunities were made available it was really for the purpose of gathering evidence against the Parents, and thus in furtherance of the Ministry’s early established goals of having the Children permanently taken into care and thereafter adopted. [ 149 ] Fifth that a “six month last chance order” under section 49(7)(

c) or under section 41(1) (

c) of the Act is warranted on the basis of the whole of the evidence and therefore should be granted. This order should have an accompanying requirement that Ministry provide help to the Parents. This will permit the Parents to be given an opportunity to prepare to care for the Children while under the supervision of the Ministry. It is submitted that this will achieve a positive parenting environment. It is said that such Ministry help must come from different Social Workers and Family Development Workers than those who have “broken the trust” of the Mother.

Position of the Mother [ 150 ] On her own behalf the Mother specifically submits that on the evidence and in particular based on more recent assessments that it cannot properly be concluded that Mother has bipolar or other mood disorders. The Mother was found to be functional in the most recent assessment completed by Dr.

Barber. [ 151 ] Next the Mother says that with respect to the Shred Report, the opinions expressed in it and the conclusions reached are essentially formulated on information received from the files and opinions of Ministry Social Workers and from the Ministry’s contractors. [ 152 ] It is submitted that the reports of visitation supervisors and the Social Workers “disclose a disturbing and difficult environment under which [the Mother] has had to try to develop a relationship with her children.” [ 153 ] Furthermore the alleged risks to the Children when interacting with the Mother have been exaggerated by Ministry Social Workers and contractors.

Numerous examples of this were provided by Mother’s counsel in the written submissions. [ 154 ] It is contended that the Ministry employees have provided the Mother with “constant negative feedback in real time, often unnecessarily” and the access environment provided by the Ministry for the Mother to interact with the Children was “oppressive and unsupportive” and is described as artificial and stressful. [ 155 ] The Mother’s decreased visits with the Children that were instituted by the Ministry were designed to prevent the Mother from developing her parenting skills and for adequate bonding between Mother and the Children to develop. [ 156 ] I understand from the foregoing that the Mother is saying that the inescapable conclusion that should be reached is that essentially she was being set up by the Ministry to fail. [ 157 ] Specifically it is submitted that the Ministry’s action of stopping the provision of resources to the Mother that might assist her in developing the skills and relationship a normal parent and child would have together is “callous” and is contrary to the guiding principles of the Act under sections 2(

b) and (c). [ 158 ] However, it is further noted in the submission that the Mother’s skills in breast feeding, diapering, feeding and clothing the Children have developed to the point that she has “mastered” them despite the Ministry’s actions. Position of the Father [ 159 ] The Father specifically says in his submissions that the Ministry has denied him any meaningful contact with the Children and notes that there is no parenting assessment completed by Ministry. Therefore there is no evidence of the Father’s parenting capability.

It is further noted that Family Development Worker Partridge testified that when the Father did have contact during his visits with CL that he was able to bond and act appropriately with her. [ 160 ] Therefore it is suggested that if there are any shortcomings in the Mother’s parenting abilities that the Father would be able to compensate for those shortcomings.

It is said that this suggestion is supported by the Mother’s submission in which it is stated that the Mother “clearly sees [the Father] as a source of support and assistance in parenting”. [ 161 ] The Father further submits that notwithstanding his admission to being bipolar and having FASD there is no evidence that these conditions prevents him from having the capacity to parent the Children. Furthermore there is no evidence of a diagnoses of a mental health issue. Assessing Credibility [ 162 ] As will be noted from the

summary of evidence and the stated positions of the parties noted there is a significant conflict in the viva voce evidence adduced and being relied upon by each of the parties, being the Director on one hand and the Parents on the other. Therefore as part of my analysis I must assess the credibility of the witnesses. [ 163 ] A trial judge must assess the accuracy and reliability of the evidence before the court, even if that evidence is only adduced by

one of the parties. [164] Accordingly, I will now turn to an assessment of the credibility. Assessment of credibility in its broadest sense includesveracity, reliability, and accuracy of the only witnesses who testified. [165] In assessing the credibility of the witnesses I am guided by the observations of O'Hallaran J.A. in Faryna v. Chrony, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) 354 at pp. 356-357: On reflection it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibilityof the evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearlywhat he has seen and heard, as well as other factors, combine to produce what is called credibility... The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the trust of the story of awitness in such a case must be its harmony with the prepo

[…]