Director v. K.L.R. Date:, 2010 BCPC 342

Citation: Director v. K.L.R. Date: 20101221 2010 BCPC 0342 File No: F8669 Registry: Abbotsford 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: K. M. R. , born (d.ob.), 2003 E. A. R. , born (d.o.b.), 2003 BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K. L. R. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Director: R. E. Caldwell Counsel for the Parent: G. M. Green Place of Hearing: Abbotsford , B.C.

Dates of Hearing: August 23, 25-27, September 3, October 22, December 9, 2010 Date of Judgment: December 21, 2010 Introduction [ 1 ] This is an application brought by the Director of Child Family and Community Service (the “Director”) for an order placing the children K.M.R. and E.A.R. (twin girls born d.o.b., 2003) into the continuing custody of the Director pursuant to

section 49 of the Child Family and Community Service Act (the CFCSA). The Respondent K.L.R. is the mother of these children and she opposes the Director’s application. [ 2 ] These children were removed from the Respondent by the Director at birth because of the Respondent’s problem with drug abuse. The children were returned to the Respondent’s care after she showed improvement in addressing her drug problem, but they were removed again twice (on December 8, 2006 and again on April 28, 2008) after the Respondent relapsed into drug use. [ 3 ] On January 15, 2009, the parties agreed to the making of an order under section 49(7) of the CFCSA (informally known as a

“last chance order”). The six month period under this order has expired and the Director is now seeking an order for continuing custody of these children. The Director takes the position that the Respondent has not shown sufficient improvement such that it would be safe to return these children into her care.

While the Director acknowledges that the Respondent has shown some progress in her recovery, it takes the position that this is “too little too late” and that the Respondent has not complied strictly with the terms of the last chance order. [ 4 ] The Respondent asks for an order returning the children into her care. She takes the position that she has demonstrated a marked improvement in her ability to parent, including a significant period of sobriety, a stable residence, employment and a relationship with a partner who is solid in his recovery and who is supportive of her in her recovery.

Her counsel argues that an order returning the children to the Respondent’s care is in the children’s best interests and is in keeping with the intent of the CFCSA. [ 5 ] Following are my reasons for the order that I make in this matter.

Summary of Evidence [ 6 ] The Respondent K.L.R. was born on (d.o.b.), 1979. She comes from a good home with loving parents. While there is currently significant tension in the relationship between the Respondent and her parents, Mr. and Mrs. R. have been remarkable in the devotion that they have shown to their grandchildren and in the efforts that they have made to support the Respondent throughout her troubled youth. They are incredibly kind and generous people. [ 7 ] The Respondent first gave birth in 1999 at the age of 19, when her daughter F. was born.

At the time the Respondent was living at her parents’ home, but she moved out due to conflict with her parents and the rules they set for her. The Respondent became involved in a life of drug abuse and as a consequence, F. was removed from her care sometime in the fall of 2000. According to an agreed statement of facts, the Director and the Respondent attempted to address the issues that led to F’s removal, but consensual random drug testing showed that the Respondent continued to test positive for cocaine use into the spring of 2001.

The Respondent kept missing scheduled access visits and on eventually, on November 13, 2001, the Respondent consented to a continuing custody order. Faith was later adopted by the Respondent’s parents, and she continues to reside with them. [ 8 ] In 2001, the Respondent gave birth to a set of twins named B. and C. These children were removed from the Respondent’s care because the Respondent was still very active in her cocaine use. The Respondent did not request any access to these children and on April 1, 2003 a continuing custody order was granted, placing them in the Director’s care.

B. and C. have since been adopted by an unrelated family. [ 9 ] The children who are the subject of this application were born at a home on the Matsqui Reserve where the Respondent was living at the time and they were transported to MSA Hospital in Abbotsford immediately following their birth, where they tested positive for cocaine and opiates in their systems. These children were promptly taken into care by the Director. The children were then taken to Royal Columbian Hospital in New Westminster, BC for special care during their withdrawal.

They remained at that hospital for about a week before being placed in the care of the Respondent’s parents. [ 10 ] It was following the birth of these children that the Respondent made her first serious effort at recovery from her addiction. She entered Peardonville House for Women, a very reputable treatment centre in Abbotsford, on April 7, 2003 where she remained until June 12, 2003, completing that facility’s program.

Upon her discharge from Peardonville House, the Respondent commenced regular attendance at 12 step programs and also attended Abbotsford Addiction Services. [ 11 ] Problems became apparent in the summer of 2003 when the Respondent ceased contact with Abbotsford Addiction Services, failed to attend sessions with Project Parent and began to miss visits with the children.

The Respondent also refused to submit to urinalysis and she admitted that she had relapsed into cocaine use. [ 12 ] In January of 2004 the Respondent reconnected with Abbotsford Addiction Services and attended 13 group counselling sessions over the first part of the year. She made efforts to remain clean and sober, but admitted to a relapse on March 12 th . At that time the Respondent was living with a man named E.F. and she and Mr. F. completed Project Parent in April of 2004. On August 4, 2004, the Respondent consented or an order under

section 41 of the CFCSA giving the Director temporary custody of the children for three months. [ 13 ] In the fall of 2004 the Respondent once again tested positive for cocaine and other substances. Her relationship with Mr. F. had soured and he was incarcerated for an assault conviction. [ 14 ] Despite these setbacks, the Respondent continued to make efforts at recovery. On September 27, 2005 the Respondent consented to an extension of the temporary custody order for a further six months.

She made substantial changes to her lifestyle and on January 17, 2006 the children were returned to her under a six month supervision order. That period passed without incident and the order expired. [ 15 ] Regrettably, in the fall of 2006 the Respondent once again disclosed that she had relapsed and was using cocaine again. She was living with Mr. Forcier and he was being violent towards her. In spite of this, the children remained in the Respondent’s care and a safety plan was put in place in which the children were to go to the home of the grandparents if the Respondent was using cocaine.

The social worker tried to work with the Respondent to get her back on the track of recovery, but the Respondent was unwilling to cooperate. She did avail herself of the safety plan on at least four occasions, but continued to use drugs and to live with Mr. F. even after police were called in response to their domestic disputes. She would not cooperate with drug testing and would not call or meet with her social worker. [ 16 ] On December 8, 2006 the children were once again removed from the Respondent’s care.

The Director once again obtained an order placing the children into care and on February 27, 2007 the children were ordered into the temporary custody of the grandparents under

section 41 of the CFCSA. The Respondent once again got back on track in addressing her addiction issues. [ 17 ] On July 3, 2007 the children were once again returned to the Respondent under another six month supervision order. The Respondent followed the terms of that order and the order lapsed.

[ 18 ] On April 13, 2008, the Respondent relapsed yet again and was admitted to MSA Hospital in Abbotsford as the result of an overdose of crack cocaine. The children were placed in the care of the grandparents. The Respondent had another relapse in late April and on April 28, 2008 the children were removed and placed in foster care. On May 8, 2008 the Respondent moved to Kamloops, BC with her current partner, R. B. On May 27, 2008 the Director obtained an interim custody order under

section 35 of the CFCSA. [ 19 ] The Respondent attended the Phoenix House detox center in Kamloops, BC from June 19-23 of 2008. The Director applied for a continuing custody order for these children on July 8, 2008. The children were moved back into the grandparents’ home in August of 2008. [ 20 ] On October 22, 2008, the Respondent and her partner R. B. both tested positive for cocaine use.

On November 8, 2008 they both entered the Round Lake Treatment Facility and satisfactorily completed the requirements of that program on December 16, 2008. [ 21 ] On January 15, 2009, the parties participated in a case conference at which they consented to the making of an order under section 49(7) of the CFCSA (known as a “last chance” order.) Under the terms of that order, it was agreed that the children would remain in the temporary custody of the Director for a period of six months (which was scheduled to expire on July 14, 2009.) This order provided that the Respondent would have reasonable access to the children, to be supervised at the discretion of the Director.

The Respondent was to meet with the Director to come up with a risk reduction plan. Access visits were planned at that time. [ 22 ] Unfortunately things didn’t progress well. The Respondent missed three access visits in a row and the social worker was unable to contact her. The parties never did meet to come up with a risk reduction plan. [ 23 ] On April 8, 2009 the Respondent contacted the social worker and admitted that she had relapsed once again. As a result of this, access visits were terminated and the Director pressed on with its application for a continuing custody order in respect of these children.

No services are being provided to the Respondent by the Director other than some travel money for access visits. [ 24 ] On May 8, 2009 the Respondent and R.B. moved from Kamloops to Powell River, BC. The Respondent testified that she has not had a relapse since April of 2009 and has been clean and sober continuously since then. The Director does not have any evidence to dispute this claim. [ 25 ] The Director has expressed concerns about possible neurological problems that the Respondent may be suffering from The Respondent suffered from a head injury when she was 13.

The Director is concerned that the injury may be connected to many of the bad choices that the Respondent has made in her life. Although medical investigation of the injury is expensive, at one time the Director had been willing to look into this, but according to the social worker, the Respondent “refused to engage and it was not feasible to look into it at this stage.” [ 26 ] At present, the children are residing with the Respondent’s parents. They are very healthy and show no present effects from the substances that were in their system at birth. They are active in swimming and appear very happy.

The Respondent’s mother does not work outside of the home and is a full-time caregiver to these children and to their sister, F. The Respondent and R.B. see the children once a month and also have access by telephone and by webcam. [ 27 ] In the course of her current employment, the Respondent suffered an injury that required her to take prescription painkillers. This is of concern to the Director because one of the Respondent’s previous relapses after she began taking prescription painkillers.

Another concern of the Director’s is that the Respondent did not consent to having the social worker contact her recent employers. [ 28 ] Social Worker Lisa Waddell testified about the views of the children. They have expressed to her a wish to live both with the Respondent and with their grandparents. In what the children see as a perfect world, they would all live under the same roof.

It is clear that the children have no fear of the Respondent and would be happy living with her, but that they also want to maintain a strong connection with their grandparents. [ 29 ] This is problematic because of tensions which have arisen between the Respondent and her parents. The Respondent has accused her brother of sexually assaulting her when she was a young teen, something that is vigorously denied by the rest of the family. The incident has been investigated and police and social workers have found no substance to the claim.

The claim has come about as the result of a recovered memory during counselling. While there is considerable experience tending to show that such recovered memories are often the product of false memory syndrome, whether or not this is a false memory, it remains very real to the Respondent. This is best illustrated by the fact that it would have simplified matters for her in her case to regain care of the twins if she simply chose to omit any mention about the matter.

But from the fact that he has maintained this accusation under oath, at the risk of complicating her claim to care for the children suggests that this is a very significant matter to her. It is an issue which causes considerable strain in the family and impedes what might otherwise be an orderly transition of care of the children from the grandparents to the Respondent. [ 30 ] Under cross-examination, social worker Lisa Waddell acknowledged that she didn’t know a lot about the Respondent’s new life in Powell River.

The Director has an office in Powell River and would be able to monitor the children if they were ordered to live with the Respondent. Ms. Waddell also acknowledged that in a mediation session held following the last chance order, the Director took the position that it was unwilling to consent to the Respondent having access to the children unless the Respondent consented to the making of a Continuing Custody Order.

The Respondent subsequently applied for and was granted an order giving her access to these children. [ 31 ] The Respondent’s mother gave evidence about an injury which the Respondent suffered as a grade seven student. The Respondent was on a skiing trip and took a bad fall of about 100 feet, striking her head.

She believes that this accident was the cause of a number of significant behavioural changes which saw the Respondent go from being a very caring child into one with discipline problems that saw her hospitalized in a psychiatric ward for a time and later in foster care. (The Respondent agrees with this assessment. In her evidence, she testified that “it was like I was a totally different person after the accident.”) It was during this period that the Respondent first alleged that she was abused, but an intense investigation at the time found that this accusation was without any tangible support. Mrs.

R. testified that the Respondent began using street drugs and that while the Respondent was active in her drug abuse, the family tried its best to offer help and intervention, to no avail. She testified that the Respondent also had a history of depression for which she was treated with counselling and anti-depressants.

[ 32 ] Mrs. R. recalls that when F. was born, the Respondent stopped using drugs “cold turkey” for a time and that she was a good mother at first, but that she had trouble later on with depression. The Respondent moved out of her parents’ home and took F. with her. It soon became apparent that the Respondent was unable to care for Faith, so the grandparents intervened and took care of the child. Mrs. R. described the Respondent’s pattern of addiction when these children were born. [ 33 ] Mrs.

R. testified that the Respondent “is a good parent when she’s healthy.” In her testimony, she described the contact that the Respondent had with the children during the visits in positive terms, stating that the visits “have gone well” and that “K.R. tries to be even with the kids” during the visits, “everyone seems to get along.” She added that “K.M.R. wants us all to live in one big house. She wants to live with [the Respondent and R.B.] but she doesn’t want to leave my husband and I.” She later reiterated that when the Respondent is clean and sober, she is a good mother. Mrs.

R. added (referring to the Respondent) “I’m pretty sure she isn’t using drugs now” and “right now she’s doing really well.” [ 34 ] Unfortunately, these court proceedings have caused considerable strain on the relationship between the Respondent and her mother. The Respondent testified that on a recent visit scheduled in between court dates, she was told by her mother that “I’m not supervising the visits any more, we’re done.” She described a visit in October in which the atmosphere was tense and F. refused a hug from the Respondent. The Respondent testified “my mom and I don’t have any contact.

My testimony about [her brother] seems to have closed the door on that.” [ 35 ] The Respondent has a very busy life in Powell River. She is pursing a course that would give her a certificate as a Community Support Worker which would allow her to work with persons with disabilities. She testified that she moved to Powell River to get away from her drug connections in Abbotsford and because she had heard that there were employment opportunities there for her and Mr. Bird. Initially she got a job at a McDonald’s Restaurant, and later found better paying work at a local restaurant.

She now works for (name of employer). She started off as a volunteer with that organization, and has taken a number of courses that will make her more marketable in the job market including a CPR course, a food safe course, a first aid course, a course involving the safe handling of hazardous materials and she has also obtained her class 4 driver’s license. She and R.B. live in a two bedroom home and have a good relationship with their landlord. R.B. works full time at a local store. Between full-time employment and her classes, the Respondent is working towards a goal of financial stability.

Her progress is quite remarkable when one considers the places that her addiction had taken her. [ 36 ] The Respondent testified that she has been honest about her drug use, stating “when I’ve been using, I let people know” and while honesty is not a typical characteristic of drug abusers, this claim is consistent with the evidence of all of the other witnesses. [ 37 ] The Respondent and R.B. have been together since late 2006. There were times when they were active in their drug use together and when they have relapsed together.

According to everyone’s evidence, the children see R.B. as a father figure, and he has responded in kind. When clean and sober he has a good work history. Both he and the Respondent testified that they are happier living in Powell River than they have been for a long time. [ 38 ] While living in Powell River, the Respondent has been seeing Terry Ewen, a mental health and addictions counsellor for the Vancouver Coastal Health Region. The Respondent had been seeing him once every two weeks, but this frequency has decreased with Mr. Ewen’s approval.

He testified that the Respondent “appears to be doing well so once a month is fine”, adding “all signs point to good recovery.” He summarized the Respondent’s relapse prevention plan as having a routine, working, avoiding contact with her old crowd, having a partner who is also in recovery, acknowledging her addiction, acknowledging the wreckage that it has caused and good mental health management. He was complimentary of the way that the Respondent handled matters when she was prescribed painkillers as the result of a work injury.

Position of the Parties [ 39 ] The Director asks for an order placing the children in its continuing care. Counsel for the Director cites the past conduct of the Respondent as cause for concern. She argues that the Respondent’s history of relapse is such that, despite the recent good progress that the Respondent has made, the risk of return is too great. She stresses that the Respondent has not complied with the terms of the last chance order, terms which were put in place to promote the safety of the children.

She also takes the position that the court only has two options: a continuing care order or a return of the children to the mother, and the former is the only reasonable and safe option. [ 40 ] Counsel for the Respondent stresses that it is the child’s interest that needs to be considered first, not meeting the dictates of a powerful state agency. He notes that much of the case for the Director focussed on how the Respondent did not comply with the demands made on her by the Director, and this is not what the CFCSA asks the court to consider in making a decision of this nature.

He is critical of the Director’s position of “three strikes, you’re out” and of how the Director has ceased any measure that would assist in reuniting the children with the Respondent. He argues that the present reality is that the Respondent is ready, willing and able to parent these children despite her past and despite the fact that she has not done things according to how the Director would have liked. Counsel for the Respondent also takes the position that the court has a third option, and that is a return under supervision.

Applicable Law [ 41 ] In s. 49 of the CFCSA, the Legislature of British Columbia has set out the duties and obligations of this court when faced with an application to place a child or children into the continuing care of the Director. That

section reads in part as follows:

(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 the director or a person other than the parent for a specified period of up to 6 months. [ 42 ]

Section 49 must be interpreted by considering the rest of the CFCSA. The Act is principally concerned with the safety and well- being of children.

Section 2 provides the 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. [ 43 ]

Section 4 of the CFCSA defines what is in a child's best interests. That

section reads as follows: 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. [ 44 ] Notwithstanding the very able submissions of counsel for the Respondent, I agree with counsel for the Director that at this stage of the proceedings, the court has only two options: either to make the continuing custody order or to return the child to the mother. This was the conclusion reached by the late Chief Judge Stansfield in Director v. F.C. 2004 BCPC 531 at para. [9] . I agree with this conclusion, based on a reading of subsections (9) and (10) of

section 49. Those subsections essentially provide that, once a last chance order has been made under section 49(7)(b), if the director applies for a continuing custody order before that last chance order expires, then the court must make one of the two orders contemplated under subsection 10. I believe that this is so to prevent a potentially ongoing series of last chance orders, which would make a mockery of the notion of a last chance, and which would conflict with the Act’s direction to make timely decisions about the continuing care of children. Those subsections read as follows:

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

b) 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.

Analysis [ 45 ] The first thing that I am required to consider on the facts of this case is whether the Respondent is able to care for her children. The evidence is clear that she is willing to care for the children, but

section 49 asks this court to make a determination if she is able to care for them and to meet their needs (as required in section 49(4)(

b) and (5)(b)). In making that determination I must consider the factors set out in subsection (6) as well as the guiding principles of the CFCSA (set out in

section 2) and the best interests of the children (set out in

section 4.) [ 46 ] There is no doubt that the Respondent’s past is a sad story of drug abuse and relapse. This is not an unusual pattern for those with addictions. Many people, like the Respondent, will relapse even after undergoing residential treatment at reputable centers like Peardonville House or Round Lake. It is understandable, given the Respondent’s past, that the Director would have concerns about returning the children to the Respondent. While she appears to have maintained continuous sobriety for about twenty months now, she had previously maintained an even longer period before relapsing again.

While there are too many sad cases in which drug abuse has taken people to lows they could never imagine , the recovery community is also full of success stories of people who have recovered and went on to have responsible and productive lives even after numerous relapses. Because addiction is a lifetime condition, there is no satisfactory predictor of who will be successful in recovery and who will not.

As counsel for the Respondent stated in his submissions, gauging the prospect of success in recovery is an art, not a science. [ 47 ] In considering the Respondent’s prospect for successful recovery, in my view the best evidence comes from two sources: Mr. Ewen, and the Respondent’s mother. In offering the opinion that “all signs point to good recovery”, Mr. Ewen was able to identify specific indicators, namely: (

a) having a solid routine in her life, (

b) having stable employment, (

c) avoiding contact with her old crowd, (

d) having a partner who is also in recovery and who supports her in her recovery, (

e) acknowledging her addiction (i.e. not being in denial about her addiction), (

f) acknowledging the wreckage that her addiction has caused, (

g) maintaining contact as directed with her counsellor, and (

h) making amends to the community by doing volunteer work. [ 48 ] The evidence of the Respondent’s mother that the Respondent “is a good parent when she’s healthy”, that visits “have gone well”, that the Respondent “tries to be even with the kids” during the visits, that “I’m pretty sure she isn’t using drugs now” and “right now she’s doing really well” are all positive endorsements that the Respondent is doing more than just maintaining some kind of white knuckle sobriety. [ 49 ] This evidence satisfies me that it can not be said that the Respondent is unable or unwilling to care for the children.

The changes that she has made in her life demonstrate a clear willingness to care for the children, and the evidence presented in the Director’s case as well as the Respondent’s shows that the Respondent is not only an able parent, but a “good parent” when clean and sober.

In view of this evidence and the evidence that “all signs point to good recovery”, the grounds for making a continuing custody order under section 49(4) are not present here. [ 50 ] On a consideration of the factors listed in subsection (5), when I consider the evidence presented, I am satisfied not only that the conditions which led to the removal of the children will improve within a reasonable time, but that they have in fact improved dramatically. The evidence also satisfies me that the Respondent will be able to meet the children’s needs.

Specifically, she and her partner are gainfully employed and will be able to provide for the children’s material needs such as food and shelter. She has demonstrated throughout these proceedings, from her efforts at recovery, and from her recent conduct on the visits, an ability to provide for the children’s emotional needs as a loving parent.

She has also taken measures to maintain her sobriety by relocating to a safe community away from her old acquaintances and triggers, by connecting with a local addictions counsellor, by having a stable relationship with a partner who supports her recovery and who is in recovery himself, and by building a healthy routine. All of this contributes to the goal of meeting the children’s need for safety and a life free from the curse of a parent active in drug addiction.

All of this leads me to conclude that the grounds for making a continuing custody order are not present here. [ 51 ] In coming to this conclusion, I have considered the Respondent’s past conduct as required by subsection (6). It has not been lost on me that the Respondent has tried and failed at recovery many times in the past. I am taking into consideration her recent past as well however, specifically the past twenty months in which she has been building stability in her life. I am not critical of the Director for being very concerned and very cautious about the future of these children.

Surely however, the Respondent’s past can not serve as a permanent bar to the return of her children in a case such as this one where the Respondent has made very significant deposits in the bank of positive lifestyle change. [ 52 ] I have also considered the plan of care proposed by both parties. The children are now in a safe, secure and loving home with their grandparents. They will also be loved, cared for and nurtured in the care of the Respondent. The current climate of acrimony between the Respondent and her parents is a huge concern.

It is especially sad because it will be the children who are most hurt by it. These girls clearly love their mother and their maternal grandparents immensely, and it would be cruel to them to force them to choose sides or to be made to feel somehow as if feeling love for one side is somehow being disloyal to the other. I get the sense that all of the adults realize this and that each is capable of putting their own feelings aside in favour of the children’s happiness. I hope, for the sake of the children, that in time the bad feelings that have come about as the result of this litigation will dissolve.

The grandparents have served

as the children’s saviours when they most needed one. It is very important that these children maintain a good relationship with their grandparents and with their sister F. [ 53 ] In cases of this nature, where emotions run high, it is easy to look for parties to vilify. The Respondent is critical of the Director, believing that in setting conditions and in being unwilling to work with her on any terms but their own, this is more about their being control freaks than about their statutory mandate to work to reunite families in distress.

Counsel for the Respondent cited the comments of the late Chief Judge Stansfield in Director v. F.C. , supra, at paragraphs [12] to [23] as a well articulated example of how the relationship between the Director and a parent in distress can change from helpful to hostile.

While it is true that many judges express concern about being made to feel as if the Director is trying to dictate to the court, in my view this may be a misperception arising not from the actions of social workers in the field, but from aggressive advocacy on behalf of the Director in those cases. [ 54 ] In this case, it is understandable that the individual social workers would have some reservations about the Respondent’s chances at recovery, given the number of times in the past that she gave the appearance of success, only to dash everyone’s hopes with another relapse.

In my view this isn’t the same climate of hostility that Chief Judge Stansfield described, it is just basic human nature. Anyone close to this situation would worry about being burned again by the Respondent. In a perfect world, social workers might put their chins up and say “well, the other times things didn’t work, but I’m sure this time will be different.” It is reasonable to expect a standard of professionalism. It is not reasonable to expect them to achieve the level of sainthood.

In this case I think that the Respondent has to accept and own responsibility for causing some scepticism among those entrusted with protecting her children. Every healthy recovery includes the making of amends to those harmed by one’s addiction. Rather than seeking to blame the social workers, a wiser course of action is to see where they have been right in protecting her children in the past and in being grateful to them for keeping them safe and for giving her the opportunity to get healthy and be able to return into her children’s lives as a parent they can respect and be proud of.

She must do everything she can to see that she does not let them down. [ 55 ] In

summary, I find that the grounds to make a continuing custody order are not present in this case. I am satisfied that the Respondent is willing and able to care for these children, that the conditions which led to their removal from her have improved significantly and that the Respondent is now able to meet the children’s needs. Because the conditions required for the making of a continuing custody order are not present, section 49(10) requires that I make an order that the children be returned to the Respondent. [ 56 ] I am mindful that this order is being made just four days before Christmas.

While what I am about to say does not form a term of my order, I would see it in the best interests of the children that they be permitted to remain in their current home until after the 25 th to spend Christmas with their sister and grandparents. They will have many future Christmases at home with the Respondent, and it would not seem right to take them out of their current home without letting them celebrate Christmas with the family that has been caring for them for so long. [ 57 ] I wish to thank Ms. Caldwell and Mr.

Green for their able representation of their clients, their attention shown to the presentation of their cases and for their very skilled advocacy. Order [ 58 ] For the foregoing reasons it is ordered that the children K. M. R. and E.A.R., both born (d.o.b.), 2003, be returned to the care of K.L.R., pursuant to section 49(10) of the Child Family and Community Service Act. Dated at the City of Abbotsford, in the Province of British Columbia, this 21st day of December, 2010. __________________________________ The Honourable Judge K. D. Skilnick