DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2021 BCPC 152

Citation: British Columbia (Child, Family and Community Service) v. D.R. 2021 BCPC 152 Date: 20210610 File No: F9973 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: B.L.H.L.P , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.R. and T.P. PARENTS REASONS FOR JUDGMENT AT PRESENTATION HEARING OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Director: P. Armstrong Counsel for the Parent: S. Hodgson

Counsel for the Maternal Grandmother R. Gutman Place of Hearing: Courtenay , B.C. Date of Hearing: April 29 & May 12, 2021 Date of Judgment: June 10, 2021 Introduction: [ 1 ] In this contested presentation hearing, the Director seeks an order that now [omitted for publication] B.L.H.L.P. (B.L.) be placed in the custody of her paternal grandparents, J.T. and B.T., pending a protection hearing and further orders of the court. B.L.’s paternal grandparents, J.T. and B.T., live in a small community near Castlegar, B.C. B.L.’s parents, D.R. and T.P., and her maternal grandmother M.R., live in Courtenay, B.C.

Since November, 2020, B.L. had been in M.R.’s care of until February 5, 2021, when the Director placed B.L. in the care of J.T. and B.T. requiring B.L. As a result of the geographic distance between Courtenay, B.C. and Castlegar, B.C., as well as travel restrictions imposed during the pandemic, B.L. has not seen her parents or maternal grandmother since that time. [ 2 ] The Director seeks an order that the child be placed in the interim custody of a person other than a parent, in this case the paternal grandparents J.T. and B.T., under the Director’s supervision, pursuant to s. 35(2) (

d) of the CFCSA (the Act ). The terms of supervision include a condition that all access to D.R. and T.P. will be at the discretion of the Director and that they must “co-operate with all directions of the Director regarding access to the Child with their Mother, D.R., and Father, T.P., and any plans for reunification with the Parents.” [ 3 ] The parents, D.R. and T.P., and the child’s maternal grandmother, M.R., are opposed to this order. M.R. and D.R. seek the following orders instead:

a) That M.R. is a parent entitled to custody of the child;

b) The child be returned to M.R. , as the parent apparently entitled to custody, pursuant to s. 35(2)(

c) of the Act;

c) Alternatively, that the child be returned to M.R., as a parent apparently entitled to custody, under the Director’s supervision pursuant to s. 35(2)(

b) of the Act ;

d) In the further alternative, that the child be placed in the custody of M.R., a person other than a parent, under the Director’s supervision; and,

e) That M.R. be added as a party to this matter pursuant to s. 39(4) of the Act . [ 4 ] The father, T.P., supports the application by M.R.

The Evidence and Background History: [ 5 ] The relevant history is as follows: • B.L. was born on [omitted for publication] in [omitted for publication] and is D.R.’s second child; • D.R. was living with T.P. in [omitted for publication] and in approximately June, 2016, M.R. brought all three back to Courtenay, B.C. where she was living; • From then until approximately June, 2018, B.L. lived with M.R. and her parents, D.R. and T.P.; • During this time, M.R. assisted and supported D.R. and T.P. with B.L.’s day to day care and was one of the primary persons responsible for taking B.L. to daycare and caring for her when D.R. and T.P. needed assistance; • Even after June, 2018, M.R. saw B.L. multiple times per week or almost daily, taking her to daycare, having regular outings to the park and babysitting; • In and around April, 2019, M.R. moved in with her other daughter and her family and lived there until January 1, 2020, when she moved into her own home.

M.R. continued to see B.L. on a very regular basis, if not daily; • Both D.R. and T.P. struggled with substance use previously. According to the Report to Court filed January 19, 2021, D.R. was involved with MCFD when pregnant with her first child who was placed in the full time care of the father. In 2016, D.R. was working with the Director and relapsed again. In 2018, the Director had concerns for D.R.’s alcohol use, the father’s aggression and mental health and domestic violence.

In 2019, MCFD received a report expressing concern about D.R.’s alcohol use and driving while impaired with B.L. in the vehicle;. • As a result, B.L. was placed with her paternal grandparents, J.T. and B.T. from May 1, 2019 until the September long weekend – a period of four months, following which she was returned to D.R. and T.P.; • In late October 2020, the parents D.R. and T.P. asked M.R. if B.L. could live with her and, on November 1, 2020, M.R. moved B.L., and her belongings and toys, to M.R.’s home; • Around the same time, in mid November, 2020, the Director received reports that D.R. and T.P. had relapsed on heroin and fentanyl.

The Director established a safety plan under which B.L. would continue to reside with M.R. [ 6 ] On November 13, 2020, an MCFD social worker sent a copy of the handwritten Safety Plan to M.R. outlining what had been agreed between the Director, D.R. and T.P. Those conditions were that the parents agree that B.L. would remain in the care of M.R

pending further notice; D.R. and T.P. would meet with their social worker as requested; they would engage in risk reduction and substance misuse services; D.R. and T.P. must be sober for all access visits, which would be at the discretion of the Director; and the Safety Plan must be signed and delivered to MCFD by 11:30 am, November 12, 2020. The Safety Plan was never signed by D.R. and T.P. [ 7 ] On December 12, 2020, B.L. was interviewed at her day care by a social worker. An Agreed Statement of Facts was submitted by counsel summarizing what B.L. told the interviewer. B.L. shared the following with the interviewer:

a) Nanny wakes child up in the morning;

b) Sometimes child wakes mommy and daddy up at home;

c) Daddy or nanny make dinner for child;

d) Child talks to Daddy when she is upset, child likes daddy to give her hugs;

e) Daddy hugs child when he is happy;

f) Child does not know what Daddy does when he is sad;

g) Mommy plays Barbies with child when mommy is happy, and mommy is happy when child hugs her;

h) Mommy is not angry. [ 8 ] Nothing in that interview indicates that that B.L. was exposed to substance use or domestic violence while with her parents. [ 9 ] B.L. continued to live with M.R. who organized counselling and speech therapy, took her to day-care and became her primary care giver. On January 8, 2021, following a two-and-a-half hour access visit with D.R. and T.P., B.L. was returned to M.R. at 7:30 p.m. by the mother and her friend J, who was driving. D.R. told M.R. that she and T.P. had a verbal fight and B.L. was upset.

M.R. comforted B.L. and she went to sleep. [ 10 ] On January 9, 2021, the next morning, the RCMP attended at the residence of D.R. and T.P. They reported to the Director that D.R. and T.P., along with their roommates, had been using Fentanyl and a physical altercation, involving a bow and arrow and knife, had occurred between T.P. and the male roommate. It was also alleged that during this altercation, T.P. struck D.R. forcefully and T.P. was placed on an undertaking to have no contact with D.R. The RCMP found D.R. passed out, with substances and drug paraphernalia present.

It was not clear when the altercation had occurred. The child, B.L. was not present when the RCMP arrived.

A report was made to the Director. [ 11 ] The Director says that reports were received from “multiple collaterals” outlining domestic violence, drug use and, according to the Report to Court: “neglect of the child who is often a witness to these events.” It appears that at least one source of this information was from the male roommate who was involved in the altercation with T.P. [ 12 ] On January 9, 2021, in the evening, an after-hours MCFD social worker called and told M.R. that B.L. could not see or speak with her parents except at the Ministry office.

Since that time, B.L. has only seen her parents, D.R. and T.P., at that office and while under supervision. [ 13 ] On January 13, 2021, the Director attended the residence of D.R. and T.P. and found T.P. present (contrary to his no contact order) and observed open containers of used needles in B.L.’s bedroom. B.L. was not present. [ 14 ] On January 15, 2021, The Director again attended the residence which was described as “still in disarray”.

A Narcan kit, bow and arrow and a hole in the door were observed. [ 15 ] The Presentation Report and Report to Court were completed by a social worker, signed on January 18, 2021 and filed on January 19, 2021. The Report indicates that B.L. was removed from D.R. at 10:15 a.m. on January 18, 2021.

The interim plan of care was for B.L. to continue to reside with her maternal grandmother, M.R. [ 16 ] In the Report to Court, the social worker stated that B.L. disclosed that “her parents fight with their words, that it is “too loud”, that dad gets mad at mom, and this makes her cry.” As a result of “ongoing concerns of domestic violence, substance abuse, multiple breaches of the No Contact Order, and likelihood of harm to the child, B.L. was removed on January 18, 2021.” All access between B.L. and her parents was to be at the discretion of the Director. [ 17 ] Following these events, the Director began to look more closely at M.R.

They were not happy that some of B.L.’s access visits exceeded the maximum three hours they say was allowed. M.R. agrees that on January 6 and 7, 2021, the visits exceeded that time and were about six hours. In her affidavit filed March 8, 2021, she explained that she works a split shift from 4:30 pm to 6:30 pm and 8:30 pm to 10:30 pm. On both days, D.R. told M.R. that she would look after B.L. in M.R.’s home but when M.R. arrived home in the evening on each of these days, B.L. was still at D.R.’s house.

She also admitted that on another occasion in December, 2020, the access visit exceeded three hours. [ 18 ] During the hearing, a social worker testified that, before the events of January 8, 2021, during meetings at the MCFD office, M.R. was advised that access between B.L. and her parents could be unsupervised and that access was to be limited to two to three hours at a time. M.R. says that she did not understand that access was confined to those hours. [ 19 ] M.R. says she allowed the visits because she thought the visits with D.R. were in B.L.’s best interest because B.L. was missing her mother.

B.L. was crying at day care, missing D.R. and didn’t understand why she couldn’t go home. M.R. was clearly concerned that B.L. was struggling emotionally as a result of being separated from D.R. and, although M.R. had requested assistance in obtaining

counselling for B.L., nothing was ever arranged by MCFD. Ultimately, M.R. enrolled B.L. in play therapy. [ 20 ] M.R. also told the social worker that the situation was “really stressing B.L. out…she always want to go home.” She asked the social worker for suggestions about how to deal with this and how to talk to B.L. [ 21 ] The Director also questioned M.R. about allowing D.R. to drive B.L. back to M.R.’s home after access visits. This, they say, was contrary to their verbal instructions that D.R. and T.P. were not to drive with B.L. in the vehicle because of concerns for driving while impaired.

M.R. says she was never specifically advised of this, although states that she would not allow B.L. to be in a vehicle with an intoxicated driver. In her affidavit, M.R. states that D.R. drove B.L. to M.R.’s home on two occasions, January 6 and 7, 2021, and did not appear to be intoxicated. The other time, someone named J. was driving.

M.R. stated that she would never allow B.L. to have visits with D.R. or T.P. while either were intoxicated, let alone allow them to drive with B.L. in the vehicle. [ 22 ] The Director also says that M.R. knew about domestic violence between D.R. and T.P. when B.L. was present in the latter’s home and say that M.R. did not report this to the Director. However, during M.R.’s text messages to the social worker about counselling for B.L., M.R. was asked if B.L. witnessed any type of abuse.

M.R. replied that she was not sure, but indicated that there was “lots of verbal but not sure about anything else.” This took place on November 25, 2020. [ 23 ] It is apparent that until January 8, 2021, MCFD was not overly concerned about domestic violence because they allowed unsupervised access between B.L. and her parents, D.R. and T.P. It was not until the incident involving the police, that more serious allegations of domestic violence were made. [ 24 ] The Director also began looking more deeply into M.R.’s previous files and past involvement with them when M.R. was a caregiver for her other grandchildren.

A closing record, from approximately 2015, indicated some concern due to “a lack of boundaries with the parents regarding putting the parents needs before the children’s”. This was never disclosed or discussed with M.R. As a result, the Director decided in this case that “in all likelihood, M.R. would not pass the home study due to the breach of safety plan and her previous history.” [ 25 ] The paternal grandparents, J.T. and B.T. had previously passed the home study assessment when they cared for B.L. for four months in 2019 and one month period in 2020. The home study was still “valid”.

The Director described the previously “placement” of B.L. with J.T. and B.T. as “successful and a positive experience for all.” In essence, the placement was considered successful because the parents, D.R. and T.P., were able to address the safety concerns, specifically, substance use, and B.L. was ultimately returned to them. [ 26 ] M.R. asked the Director for another chance. Twice. That was refused.

The Legal Framework: [ 27 ] A presentation hearing is meant to be an expedited process following the removal of a child pursuant to the authority of s. 30 of the Act which sets out the basis upon which a child may be removed: 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. [ 28 ] Following a removal, a presentation hearing must be held within seven days. The presentation hearing is held in accordance with s. 35 of the Act : 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 Indigenous child, the steps to be taken to support the child to learn about and practise the child's Indigenous traditions, customs and language and to belong to the child's Indigenous community, 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.

[ 29 ] The purpose of the presentation hearing is to ensure that a child is not taken into care arbitrarily. The court will review the evidence to ensure the decision to remove was justified in accordance with the requirements of s. 30 the Act . As outlined in British Columbia (Director of Child, Family & Community Service) v. H. (M.), 2008 BCSC 701 (B.C.S.C.) , the court must be satisfied that: 1.

At the time of removal there were objectively reasonable grounds to believe that the child was then in need of protection, and that either the child’s health or safety was in immediate danger, or no other less disruptive measure that was available was adequate to protect the child; 2. At the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the two essential elements required by s. 30 (1) continue to exist; and 3.

In the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is of sufficient magnitude to require that the child be kept in the interim custody of the Director, pending a protection hearing. [ 30 ] If the Court is satisfied, the Court then considers the best way to care for the child pending the protection hearing. The Court must be satisfied there continues to be objectively reasonable grounds to believe the child is at risk of harm. (See British Columbia (Child, Family and Community Service) v.

S.D ., 2019 BCPC 209 at para 7 , cites omitted). [ 31 ] The Director need only establish a prima facie case at the presentation hearing and any conflict in the evidence on this issue is resolved in favour of the Director, unless the facts the Director seeks to establish are manifestly wrong, untrue or unlikely to have occurred (see B.B. v.

British Columbia (Director of Child, Family and Community Services) , 2005 BCCA 46 ). [ 32 ] At a presentation hearing, the Director does not need to establish that a child is actually in need of protection, rather, she need only provide admissible evidence which, if accepted, could lead to a finding that the child is in need or protection: B.R. v. K.K ., 2015 BCSC 1658 at para. 16 . [ 33 ] Hearsay evidence is typically admitted in presentation hearings and is often contained in the form of statements by a social worker in the Report to Court.

Counsel for M.R. objected to portions of the social worker’s affidavit which included reference to having received information from unnamed sources and specifically that while B.L. was being cared for by M.R., during access visits, B.L. was present while there were “other known drug users in the home, drug use, drug paraphernalia, weapons, and domestic violence”. [ 34 ] During cross examination, the social worker agreed that the source of this information was one of the roommates with whom T.P. had been involved in an altercation. This was likely one of the roommates who was also allegedly using drugs.

I agree that s. 68(2) (

a) of the Act expressly contemplates the admission of hearsay evidence if reliable. The evidence of a social worker must be placed in the context of their statutory duty to be truthful, honest, complete and to do their very best and if there is a dispute about the facts, the Court cannot embark on a credibility assessment to resolve the dispute: British Columbia (Director of Family and Child Services) v. K. (W.H.) , 2003 BCPC 307 at para. 16 . To do otherwise, would defeat the purpose of holding a brief,

summary hearing which must be concluded as soon as possible (s. 33.3) and no later than 7 days after the day a child is removed (s. 34(1)). If the Court was required to parse affidavits to determine admissibility, assess credibility and weigh the evidence, hearings would be held up even longer than they, unfortunately, are in the current system. [ 35 ] However, I accept that the Court must have some ability to conduct a limited assessment of all the evidence to reach a determination regarding the removal of a child and the best way to care for the child pending the protection hearing.

If the Court was prevented from embarking on even a limited assessment, there would be no need for a presentation hearing and the actions the Director would not be subject to any scrutiny at all. [ 36 ] The Director has the onus of establishing a prima facie case: Re J. (A.) , [1997] Civ. L.D. (B.C. Prov. Ct.). Whether or not the allegations form a proper basis for the Director’s actions must be determined on the balance of probabilities; however, a lower standard must apply when there is a risk of injury to the child: British Columbia (Superintendent of Family & Child Services) v.

M. (B.) , (1992), 37 B.C.L.R. 32 (B.C.S.C.) . [ 37 ] With those principles in mind, I turn to a consideration of the evidence before me. Discussion: [ 38 ] D.R. and T.P. are clearly struggling with substance use and an accompanying lifestyle that does not provide a safe or healthy environment for B.L. I accept that the Director removed B.L. from her parents, D.R. and T. P., even though B.L. was being cared for by, and living with, M.R. at the time.

I have concluded that this was meant to be a temporary arrangement between D.R., T.P. and M.R, until the parents dealt with their health concerns and were able to once again care for B.L. Around the same time, the Director became involved due to a report that the parents had relapsed and were using heroin and fentanyl. [ 39 ] The Director has provided enough evidence to establish reasonable grounds to believe that B.L. was, and remains in need of protection if she were in the care of her parents. I ground that finding on the provisions of s. 13 of the Act which summarize when a child needs protection.

They are of course consistent with common sense and in this case specifically, the allegations are of neglect, emotional harm by exposing B.L. to drug use by her parents or others in the home (friends or roommates) and domestic violence or aggression between the parents or others in the home. [ 40 ] That is not the end of the inquiry. The Director must also establish that at the time of the removal (and currently), B.L.’s health or safety were in immediate danger or that there were, (and are) no other less disruptive measures available that were (or are) adequate to protect B.L.

Based on the evidence and submissions of the Director, I conclude that at the time of the removal on January 18, 2021, there was no immediate danger to B.L.’s health or safety. At that time, B.L. was living with M.R. and since January 9, 2021 visits with her parents were supervised and at the Ministry office. [ 41 ] Furthermore, based on the fact that the interim plan of care was that B.L. would live with M.R., the Director clearly considered

that an adequate arrangement to protect B.L.’s health and safety following the removal. I have reached this conclusion keeping in mind that the Director’s burden of proof is a lower threshold than a balance of probabilities. In my view, it was the Director’s concern that M.R. would expose B.L. to harm by not following their conditions that is the real issue. [ 42 ] I am mindful that the focus at this stage, is to determine what measures are required to ensure B.L’s. health, safety and well- being pending a protection hearing.

It is very common in many jurisdiction to commence a protection hearing to comply with the Act but then adjourn the hearing for several months. The most common reason for the delay is to allow parents to work with social workers and participate in counselling or other support services with a view to returning the child. Another reason is that a delay provides time for the parties to organize the case they are required to meet, including locating and preparing witnesses for a contested hearing or trial.

The reality is that once an order is made at a presentation hearing, it can be months, and even years, before a protection hearing is concluded. [ 43 ] Returning to the focus of this hearing, I must determine if less disruptive measures were or are available that would, or will, protect B.L. until a protection hearing is concluded.

The Director’s position is that the least disruptive measure, adequate to protect B.L., was to move her to the Castlegar area to live with her paternal grandparents. [ 44 ] The Director’s decision to remove B.L. and place her with her paternal grandparents near Castlegar, B.C., was based on their conclusion that M.R. could not protect B.L. and was not following the safety plan.

This is based on their cumulative concerns that: • M.R. was allowing more access than the two to three hours the Director felt was appropriate; • M.R. allowed B.L. to be in a vehicle driven by D.R. contrary to the Director’s request; • M.R. allowed B.L. to have an access visit on January 8, 2021 when an unknown adult female answered the door, contrary to the direction of the Director that no other adults be present in the home; • M.R. minimized the concern of domestic violence between D.R. and T.P. and, specifically, M.R. was aware of domestic violence when B.L. was present and did not report that to the Director; • M.R. is tired and does not have the energy level and ability to parent full time; and • M.R. was considered to have “boundary issues” and would likely put the parent’s interests ahead of those of B.L.

This is based on a concluding comment following a period in which she was the caregiver for her other grandchildren in 2015. [ 45 ] I accept that M.R. allowed access visits longer than two to three hours on a few occasions. I also accept that she should have been more careful in ensuring that D.R. was in M.R.’s home on the two evenings in January, 2021 before she left for her split shift. M.R. trusted D.R. to follow through with her promise to look after B.L. in M.R.’s home those nights.

During one of those nights, M.R. fell asleep while waiting for D.R. to return B.L. who wasn’t brought home until very late and clearly past the bedtime of a four year old. The Director’s concern is that M.R. potentially exposed B.L. to drug use by her parents or others during access visits and to the type of behaviour reported by the RCMP on January 9, 2021. The Director is also concerned that M.R. endangered B.L. by allowing D.R. to drive while B.L. was a passenger. [ 46 ] There is no evidence that M.R. caused B.L. to be exposed to domestic violence.

However, M.R. did not tell the social worker about an incident on January 8, 2021 involving a verbal argument between T.P. and D.R. which upset B.L. That may have been due to the fact that January 8, 2021 was a Friday and also, on January 9, 2021, M.R. was advised that all forms of access between B.L. and her parents were suspended. The Director says that someone else reported that B.L. was present during drug use by the parents and others, as well as domestic violence.

It was not clear from the evidence when that was alleged to have occurred and it appears to relate to the incident in the late evening on January 8 or early morning on January 9, 2021. However, M. R.’s evidence is that B.L. had an access visit with her parents on that day from 5:00 pm until 7:30 pm and the RCMP reported that B.L. had not been in the home when they were present. [ 47 ] M.R. should not have left B.L. in the residence on January 8, 2021, when an unknown woman answered the door, especially knowing that D.R. and T.P. had relapsed.

In addition, M.R. agrees she was aware that there could be no “roommates” during access visits but explains that this woman told her she was a cleaning woman. In all the circumstances, M.R. should have made further inquiries and, at a minimum, confirmed this with her daughter D.R. [ 48 ] M.R. says that she did not recall being told that D.R. could not drive a vehicle if B.L. was a passenger.

She says that D.R. was not intoxicated when she returned B.L. to her residence and would not allow that to occur in any event. [ 49 ] The evidence from the Director was that reports were made that M.R. needed assistance in child care “above and beyond the child’s full time day care due to M.R.’s exhaustion.” During cross examination, and in M.R.’s evidence, the context was more fully developed. M.R.’s daughters were frustrated that M.R. was not being given timely approval for babysitters and spoke to the social worker about their concerns.

M.R. is employed and of course requires assistance during the times she is working. [ 50 ] M.R. denies feeling exhausted and being unable to care for B.L. M.R. works as a caregiver and has the occasional split shift like the one on January 6 and 7, 2021. During those times, she needs to have someone stay with B.L. D.R. at one point, was approved to stay with M.R. in her home but otherwise, M.R. requires a babysitter and the Director had advised her that all babysitters must be pre- approved before M.R. can hire one. M.R. had difficulty getting timely approval from the Director for her proposed babysitters.

The social worker agreed there was delay. I pause to note that social workers typically have a high case load with many demands and it is not surprising that there were these kinds of delays, as for example the fact that counselling for B.L. was never organized or approved for funding although she clearly needed that. I expect that the delay in obtaining approval for babysitting added to M.R.’s burden of juggling B.L.’s care with her regular employment duties.

It certainly did not assist an already difficult situation. [ 51 ] The last concern relates to allegations in a file that is about six years old -- that M.R. had “boundary issues” and would likely not put B.L.’s interests ahead of the parents. This was never discussed with M.R. prior to, or after, the decision to move B.L. to Castlegar,

B.C. [ 52 ] Within that context, as required by s. 35 (1) (

b) of the Act , I turn to a consideration of whether the Director’s decision to move B.L. to her paternal grandparent’s home near Castlegar, B.C. was, and remains, the least intrusive measure that would adequately protect her. [ 53 ] In British Columbia ( Director v. S. (L.D.), 2018 BCPC 6 , I considered the application of s. 35(1)(

b) and concluded that: [94] However, in relation to the last prong of the s. 30 requirements, the director must establish that she has been active and diligent in attempting to find other alternatives to removing a child before a final determination that there are no other less disruptive means of protecting the child. [95] Requiring the Director to establish this is not only consistent with the underlying purpose of the Act to ensure the well-being of children, it is also a safeguard to ensure that when children are removed, they are spared as little disruption and emotional distress as possible. [ 54 ] In my courtroom, I hear many cases involving children who have had their attachment to a parent disrupted and, as a result, experienced significant emotional difficulties which can persist long into adulthood.

There was no expert evidence before me because this is a presentation hearing, but the consequences of disrupted emotional attachment are so notorious as to be capable of judicial notice. [ 55 ] As outlined by M.R. in her affidavits, in November, 2020, B.L. was exhibiting signs of significant emotional distress. B.L. was observed crying while napping at day-care and expressing that she was missing her “mommy”. M.R. sent a number of text messages to the social worker expressing concern and asking for advice about how to help B.L. understand why she couldn’t go home.

M.R. provided a letter dated January 21, 2021 from K.R., an Early Childhood Educator with the day-care attended by B.L. since September, 2019. K.R. described that after B.L.’s removal from her mother she went through a “regression period” of two weeks and again when she could not have any access to her mother (this is likely after the January 9, 2021 phone call).

K.R. stated that when that occurs, B.L.: …becomes clingy, needing constant attachment and reassurance, says that she wants her mom, is prone to tears, has moments of vacancy or staring into space. [ 56 ] She described that M.R. has expressed fatigue in relation to her fulltime work and that a fellow ECE and practicum student has offered to provide child care. [ 57 ] The Director, after hearing about the incident on January 8 or 9, 2021, was appropriately concerned.

What occurred that evening is entirely consistent with D.R. and T.P. relapsing in their substance use. [ 58 ] Up until this point in time, the Director had allowed, and encouraged, unsupervised access by D.R. and T.P. to their child, B.L. It is also clear that B.L.’s care in M.R.’s home is not an issue or concern.

The Director’s concern, and their decision to remove B.L. was, in large part, because they didn’t trust M.R. to follow their directions and conditions. [ 59 ] Immediately following the RCMP report about their observations on January 9 2021, the Director initially suspended all access between four year old B.L. and her parents and then subsequently allowed only supervised access at the MCFD office.

The social worker who testified at the hearing agreed that once the supervised access was in place, there were no concerns or issues in relation to M.R. [ 60 ] Looking at this from M.R.’s perspective, she understood that the Director was comfortable with unsupervised access between B.L. and her parents. On an earlier occasion, M.R. told the social worker that B.L. was taken to Walmart by her parents, had seen them three or four times recently and no questions were asked about that. M.R. was working full time and was sometimes required to work split shifts in the evening making a babysitter for B.L. essential.

The Director even gave approval for D.R. to stay with M.R., overnight, to alleviate B.L.’s anxiety and provide assistance for M.R. [ 61 ] M.R. frequently asked for approval to have certain people babysit. The Director’s response was delayed and on at least one occasion, M.R. sent a message that she had to work that very evening and needed to know if a babysitter had been approved.

This left M.R. not knowing if she could go to work that night. [ 62 ] It is concerning that before reaching the decision to move B.L. to the Castlegar area, the Director did not meet with M.R. to explain or express the concerns I have outlined in paragraph 44 of this decision. The only written document that M.R. had in her possession to guide her actions was the initial handwritten safety plan.

Thereafter, directions or conditions were, according to the social workers, given verbally to M.R. during meetings at the Ministry office. [ 63 ] From the beginning, M.R. was not given a written, clear set of guidelines and rules that would allow her to meet the Director’s expectations.

She struggled to obtain support from the Director for child care to allow her to maintain her employment and struggled to obtain (in fact never did obtain) assistance in arranging counselling for B.L. who was clearly distraught emotionally because she was separated from her mother and couldn’t go home. [ 64 ] Following the Director’s decision to move B.L. to Castlegar, M.R. asked twice to be given another chance.

The Director refused. [ 65 ] There is no evidence at all that the Director even considered another attempt to work with, and support, M.R. so B.L. could remain in her community and maintain the connection to her mother and father. There was no evidence that the Director even considered allowing B.L. to remain with M.R. under a supervision order which would provide a clear set of expectations including the consequences of failing to meet those expectations. [ 66 ] I understand that the decision to move B.L. was based on the family members the Director believed were best able to care for her.

However, it does not appear to me that the Director considered the emotional and psychological consequences of moving B.L. to another distant part of the province and far away from her mother. As counsel for D.R. indicated, they may as well have moved B.L. to

another province. I agree. [ 67 ] Castlegar, B.C. is not an easy destination to reach and certainly not within the financial capability of either parent or M.R. The Director approved access between B.L. and her parents once per month, over a long weekend for example, and were prepared to fund a monthly flight, but that was not possible given the restrictions on travel in the province. My impression is that the Director did not consider the emotional impact on B.L. of a significant period of separation from her parents or her maternal grandmother who had looked after her for much of her young life.

In addition to the geographical separation, following a monthly access visit with her parents, B.L. would then be separated again from her mother and I am very concerned that this would cause further and more severe emotional distress to this child. [ 68 ] B.L.’s paternal grandparents love her and there is no doubt they provide a good, stable home. B.L.’s hygiene has improved as has her speech.

M.R. enrolled B.L. in speech therapy prior to the removal and there is no reason that would not continue if B.L. was returned to live with M.R. [ 69 ] While well meaning, I conclude that the Director did not consider whether there were less disruptive measures available, adequate to protect B.L. when clearly there were. M.R. has been a care provider for B.L. for a large part of the child’s life.

With clear expectations and assistance with child care when she is working, I accept that M.R. can, and will, ensure the health, safety and well- being of her granddaughter. [ 70 ] That less disruptive measures must be considered before a removal is the legislative recognition that a child’s emotional and psychological well-being, especially a child’s significant attachments to parents or other adults, must be of paramount consideration and second only to the need to protect the child’s health or safety from immediate danger. A removal is traumatizing for a child.

The additional consequences of being separated from a parent, even one who is struggling with substance use or other mental health challenges, causes even more trauma and loss to a child. [ 71 ] I have concluded that the least disruptive and safe measure is for B.L. to live with M.R. under supervision, with clear conditions that will adequately protect B.L.s health and safety. She will be able to see her parents, return to her usual day-care and continue with the counselling and speech therapy that M.R. had previously arranged on her own. [ 72 ] M.R. needs assistance with child care when she is working.

I suggest that, rather than sending text messages back and forth, M.R. provide a list of all the people who could provide child care and ask the social worker to provide approval for everyone on the list. B.L. should be able to see her mother and father as much as possible and in a safe manner, for example, supervised by M.R. or someone else approved of by the Director.

Although B.L. parents are struggling with substance use, separating this young five year old child from her parents in this manner can only cause additional emotional harm that could potentially have long lasting consequences. [ 73 ] I will leave it to the Director, the parents, as well as M.R., J.T. and B.T. to make arrangements to have B.L. returned home to live with M.R. as soon as possible and certainly by June 18, 2021. Child care, if needed, should be arranged ahead of time as well as access between the child and her parents.

I recommend that directions regarding access be in writing to ensure that M.R. understands her obligations. B.L. will need to have counselling and that should be organized as quickly as possible. [ 74 ] Pursuant to s. 35(2)(

d) of the Act , I make the following orders: The child be placed in the custody of a person other than a parent (the maternal grandmother, M.R.) with her consent, and under the Director’s supervision, with the following terms and conditions: 1. The Care Provider, M.R. must allow the Director or the Director’s agents to visit and inspect the home and meet directly and privately with the child, B.L., at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and wellbeing of the Child; 2.

The Care Provider must cooperate with all directions of the Director regarding access to the Child with their Mother, D.R. and Father, T.P., and any plans for reunification with the Parents; 3. The Care Provider must advise the Director immediately of any change to the family residence or telephone number; 4. All access with the Mother and Father is at the discretion of the Director, and supervised at the discretion of the Director; 5. The Care Provider will ensure that the Child has a safe and sober caregiver at all times who is able to provide appropriate care for the Child’s needs; 6.

The Care Provider will make best efforts to ensure that the Child is not a witness to any domestic or verbal/physical violence; and, 7. The Mother and Father will engage in all recommended parenting programs, mental health and addiction support services requested by the Director to support risk reduction. If terms 1, 2, 3, 4, 5, 6 or 7 are breached, the Director may remove the Child. [ 75 ] I have considered the application by M.R. to be added as a party to these proceedings. As counsel recognized, this is done sparingly.

I am satisfied that allowing the proceedings in the Family Law Act (the FLA ) to be heard at the same time as these proceedings allows M.R. to call evidence, cross examine witnesses and that she is able to participate fully in these proceedings. [ 76 ] Accordingly I order that the FLA proceedings in File F10364 ( M.R . v. D.R . and T.P .) and, when filed, the FLA proceedings brought by the paternal grandparents J.T. and B.T., be heard at the same time as the current proceedings in File [omitted for publication]. The FLA proceedings brought by J.T. and B.T. should also be heard at the same time.

At the time of writing this decision, I do not have the file number and have not included it for that reason.

[ 77 ] The balance of applications by M.R. are dismissed. [ 78 ] The parties are at liberty to appear before me if there is a need to speak to any terms and conditions of the supervision order. [ 79 ] These files should be scheduled for the commencement of a protection hearing with 45 days and is referred to the JCM for that purpose. [ 80 ] To expedite the circulation of these reasons, I direct the [omitted for publication] Registry to file this judgment and forward the original to the [omitted for publication] Registry. _____________________________ The Honourable Judge Flewelling Provincial Court of British Columbia