M.R.L v. Director CFCS Date:, 2011 BCPC 2

Citation: M.R.L v. Director CFCS Date: 20110114 2011 BCPC 0002 File No: F9875 Registry: Chilliwack 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: E.A.L. , born (d.o.b.), 1992 T.A.L. , born (d.o.b.), 1993 A.A.L. , born (d.o.b.), 1997 BETWEEN: M. R. L. APPLICANT AND: DIRECTOR OF CHILD FAMILY AND COMMUNITY SERVICE RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Director: K. D. Munstock Counsel for the Parent: D. R. Klassen Place of Hearing: Chilliwack , B.C.

Dates of Hearing: January 13, 2011 Date of Judgment: January 14, 2011 Introduction [ 1 ] On January 30, 2009, an order was made placing the children who are the subject of this application in the continuing care of the Director of Child Family and Community Service (the “Director”) pursuant to

section 49 of the Child Family and Community Service Act (the CFCSA). That order also gave M.R.L., (the Applicant in this matter, and the Respondent in the original matter) reasonable access to the two younger children on terms set out in the order. The children who are the subject of that order are: E.A.L., born (d.o.b.), 1992 (now almost 19 years of age) T.A.L., born (d.o.b.), 1993 (now 17 years of age) and

A.A.L., born (d.o.b.), 1997 (now 13 years of age.) [2] The Applicant is now seeking an order under

section 54 of the CFCSA for leave to apply for cancellation of the ContinuingCustody Order. She also asks for an order amending the Continuing Custody Order by deleting the conditions attached to her exercise ofaccess. The Director opposes both of these applications. Following are my reasons for decision on this matter. Applicable Law [3] Section 54(1) of the CFCSA reads in part as follows: Cancellation of continuing custody order 54

(1) With the permission of the court, a director or a party to a proceeding in which a continuing custody order was made may applyto the court for the cancellation of the order if the circumstances that caused the court to make the order have changed significantly. [4] This is a

summary application in nature. A judge hearing this application serves as a gatekeeper who must decide whether or notthe application has any prospect of success. As the Honourable Justice Martinson said in C.L. v.

Director CFCSA [2004] BCJ No. 254;2004 BCSC 172, at para. 6, “the hearing is designed to summarily cull applications brought without any prospect of success.” She wenton to state: [7] The only factor to be considered on such a leave application is whether the circumstances that caused the court to make thecontinuing custody order have changed significantly. [8] The person applying for leave does not have to demonstrate that there is a realistic prospect that the order will be cancelled basedon all the criteria set out in the

section governing the actual application to set aside the continuing custody order, s. 54(4). [9] Rather, the applicant must demonstrate a realistic chance of arguing that there has been a significant change in the circumstancesthat caused the original order to be granted. [10] The best interests of the child are to be considered at the actual application to set aside the order, not at the leave application: s.54(4)(b). [5] In S.S. v. Director CFCS 2004 BCSC 1425 , [2004] BCJ No. 2274; 2004 BCSC 1425 the Honourable Justice Joycesummarized the law relating to this

section as follows: [5] In my opinion, the law relating to an application under s.54(1)... can be summarized as follows: 1. The hearing is

summary in nature; 2. The hearing is designed to summarily cull applications brought without any prospect of success; 3. The only factor to be considered on the leave application is whether the circumstances that caused the court to make the continuingcustody order have changed significantly; 4. The applicant for leave does not have to demonstrate that there is a realistic prospect the order will be cancelled based on all thecriteria set out in the

section governing the actual application to set aside the continuing custody order; 5. Rather, the applicant must demonstrate a realistic chance of arguing that there has been a significant change in the circumstancesthat caused the original order to be granted; 6. The best interests of the child are to be considered at the actual application to set aside the order, not at the leave application; and 7.

It is not for the judge hearing the leave application to hear all of the evidence and determine whether the change justifies settingaside the continuing custody order; that is the job of the judge who hears the application if leave is granted. [6] Based on the foregoing therefore, I must consider whether the circumstances which led to the granting of the continuing custodyorder have changed significantly, and whether, if leave is granted, the application has any prospect of success. I interpret the word“significantly” using its usual dictionary definition as being of importance or consequence.

In this context, I take the word to mean thatthe circumstances have changed in a manner that relevant to the issues pertaining to the continuing custody of a child and that is morethan trite or trifling and which may properly invite reconsideration of the decision to grant the earlier order.

Summary of Evidence [7] The continuing custody order in this case was granted based on the Applicant’s inability to care for the children due to her use ofcrack cocaine, her inability to provide a safe and stable home for the children, her unwillingness to cooperate in proving her use of orabstinence from the use of drugs, and her inability to put forth any reasonable plan of care for the children.

In the reasons for judgementgranting the application for a Continuing Custody Order, I wrote (at 2009 BCPC 65): [56] The mother’s past conduct in not indicative of a likelihood that she will be able to provide the children with a safe and stable homeor that she will be able to adequately fulfil the role of caregiver to these children. While the past is not entirely negative, it contains ahistory of frequent moves, the lack of a stable home, an inability to protect the children from those in her home, nor to make them feelsafe in those homes.

This is especially so prior to the time of the removal, when the children were moved suddenly, lodged temporarilyin a hotel and left with relatives. The complaints of the children about not being fed and of sleeping in vehicles are of concern, as is theirconcern about feeling unsafe because of the persons that the mother allowed in the home. The mother’s response when T. complained ofbeing sexually touched was not that of a parent concerned for the safety of her child. Her evidence of how she dealt with that problem is

inconsistent and at odds with what T. has reported. It would have been helpful if evidence could have been tendered to show that a report to police was made as she alleges. [57] Most troubling of all is the mother’s pattern of drug use. Her idea that the use of crack cocaine by a caregiver to three boys is “recreational” shows a serious and fundamental lack of understanding of her parental obligations. Her lack of addressing her drug use in any significant way is also of great concern.

Her attendance at a detox facility for four days, followed by relapses, with occasional counselling interspersed does not equate with a cure. Her unwillingness to provide conclusive proof of her lack of drug use through testing of a hair sample for reasons that she wants her privacy respected is selfish and egotistical at best, and more likely an indication that she is in denial about the state of her addiction and is being untruthful about her using.

Any reasonable person in her position would understand the need for verification of her claims of being free from the use of drugs now before she is entrusted with the care of these children. It is more likely in this case that the mother’s pride and the pull of her addiction are stronger than the love of her children.

Either she is unwilling or incapable of seeing this, and it is unlikely that this will change until such time as the mother avails herself of the help offered by a reputable treatment program such as Peardonville or Charlford House. [ 8 ] The Applicant has filed an affidavit in which she alleges several changes in her life which are relevant to her ability to care for these children. She states that following the making of the Continuing Custody Order at the end of January of 2009, she moved to Alberta the following summer.

Her motivation for the move was to “find a new place and start fresh in order to stay clean and sober.” She found employment in a department store and worked as a cashier there from August of 2009 until February 2, 2010. She left that job because the employer was “not providing sufficient support and training” for her.

She took employment as a chambermaid at a model and was also starting her own business doing house cleaning and small renovations. [ 9 ] In a subsequent affidavit, the Applicant states that she left her employment because “the store I worked at in Alberta closed and I was laid off.” This is in conflict with her earlier affidavit as to why she had left her employment with the store. The Applicant moved to Aldergrove, BC in July of 2010.

She had been living off of her unemployment insurance, but on the date that this application was heard she filed a letter alleging that she had new employment working on a horse ranch. One troubling aspect of this late breaking news was that the alleged new employer was a person who had previously deceived social workers about whether or not the Applicant was having unsupervised contact with the children and therefore the reliability of this new employment information is suspect [ 10 ] The Applicant states in her affidavit that she has been clean and sober since the middle of 2009.

She has been cooperative in submitting to testing when requested to do so by the Director for the purpose of access visits. Thus far the testing has been by urinalysis as requested by the Director. This type of testing does not verify long term abstinence, although the Applicant has been willing to submit to whatever kind of testing that the Director requests. Her sobriety has not been achieved with the assistance of any program. It appears to have been acquired through will power. [ 11 ] The Applicant has had three supervised access visits with the children.

Generally the visits have gone well, but reports from the visit supervisor indicate that on one occasion the Applicant whispered something to the youngest child that she did not want the visit supervisor to hear and that on other occasions she has told the child about things that will happen when he is returned to her. In the supervised visits which the Applicant had with the children prior to the making of the Continuing Custody Order, her passing secret messages to the children proved to be problematic.

Analysis [ 12 ] As stated earlier, I must consider whether the circumstances which led to the granting of the continuing custody order have changed significantly, and whether, if leave is granted, the application has any prospect of success. [ 13 ] I am satisfied that there is some evidence of a significant change in the circumstances in which the continuing custody order were made. Specifically, at the time of making of the continuing custody order, there was evidence that the Applicant was active in her use of crack cocaine, that she was unable to find employment and that she was living a transient lifestyle.

The evidence presented at this hearing suggests that the Applicant may have achieved a clean and sober lifestyle and that she may have achieved a measure of stability in her life. In my view the onus of presenting some evidence of a significant change in circumstances on which the original order was based has been met. [ 14 ] I confess to some hesitation in the making of this order. Specifically, I am concerned that allowing the application to proceed is not in the best interests of these children.

I am concerned that putting the youngest child in the position where he is unsure of his future will cause anxiety for him and reopen old emotional wounds. I am also concerned about the Applicant’s conduct of putting ideas in the child’s head that drastic changes in his future may be forthcoming, when such changes appear to be only a remote possibility. I am also doubtful about the prospects of the success of this application because it is difficult for me to reconcile the notion of overturning the previous order with the best interests of the children.

However the law is clear that at this stage of the proceedings, the best interests of the children is not something that I can take into account in deciding whether or not to grant leave under section 54(1) of the CFCSA, and in my view a proper application of the law compels me to grant the leave requested. [ 15 ] The Applicant has also asked that I delete the conditions which I imposed as terms of her access order. In my view the Applicant has not met the onus of showing why these conditions should be removed. Those conditions were as follows: (

a) The mother shall first participate in drug testing in a manner satisfactory to the Director, and shall thereafter participate in such testing when requested by the Director, provided that the mother shall not be required to submit to such testing without her consent, but if she fails to participate in such testing when requested, the Director may suspend access until such testing has occurred. (

b) The mother shall attend all scheduled access visits in a sober condition, free from the use of alcohol or non-prescribed drugs. (

c) During the access visits the mother shall not conduct herself in any manner which, in the opinion of the Director, is detrimental to the physical or emotional safety or well-being of the children. If this condition is violated, the Director may terminate the visit and suspend further visits until such time as it is satisfied that the mother will conduct herself in an appropriate manner.

(

d) During the access visits the mother shall not conduct herself in any violent, threatening or offensive manner, and shall not direct any profanity or abusive language towards any social worker or visit supervisor, and shall not cause any disturbances during the visit. If this condition is violated, the Director may terminate the visit and suspend further visits until such time as it is satisfied that the mother will conduct herself in an appropriate manner. (

e) The Director may impose such other reasonable conditions on the access visits provided that such conditions reasonably relate to the safety or protection of the children, or of any social worker or visit supervisor or of any other person present at the time of the visit. [ 16 ] Unlike the application for leave under

section 54, the best interests of the children are relevant to an order for access to a child when a continuing custody order is in effect. This is expressly provided for in section 56(3)(

a) of the CFCSA. Given the evidence of the access visit supervisor, I believe that deleting these conditions would not be in the best interests of the children. I believe that it is the existence of these conditions that has motivated the Applicant towards a sober lifestyle. They have also curtailed any inappropriate conduct during the visits, compared to some of the visits prior to the granting of the continuing custody order. I am also concerned about some of the statements that the Applicant has made to the youngest child during the visits tending to promise him changes in his life that may never come to pass.

The Applicant has caused problems for the children prior to the making of the continuing custody order with secret messages to the children, but the visit supervisor indicates that this may still be doing this. All of these considerations lead me to believe that it is not in the best interests of the children to change any of the existing conditions of access as contained in the order of January 30, 2009. Order [ 17 ] For the foregoing reasons, it is ordered as follows: (

a) The Applicant M.R.L. is granted leave to apply for an order for cancellation of the Continuing Custody Order made on January 30, 2009, pursuant to section 54(1) of the Child Family and Community Service Act . (

b) The application to amend the order of January 30, 2009 (and specifically the terms of access contained in that order) is dismissed. Dated at the City of Chilliwack, in the Province of British Columbia this 14 th day of January, 2011. ______________________ K. D. SKILNICK, P.C.J.