W.M.W. and K.C.M. v. J.W. and M.M. Date:, 2011 BCPC 360

Citation: W.M.W. and K.C.M. v. J.W. and M.M. Date: 20111214 2011 BCPC 0360 File No. FRA 7963 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996, c. 128 BETWEEN: W.M.W. and K.C.M. APPLICANTS AND: J.W. and M.M. RESPONDENTS File No. CFCSA 7727 Registry: Prince Rupert AND IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996, c. 468 AND THE CHILD J.M., BORN [dob] BETWEEN: THE DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANTS AND: J.W. and M.M. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S.

WOODS Counsel for W.M.W. and K.C.M.: I. Peters Counsel for J.W.: W. MacGregor Counsel for the Director: D. Miller Place of Hearing: Prince Rupert, B.C. Dates of Hearing: October 31 to November 4, 2011 Date of Judgment: December 14, 2011 INTRODUCTION [ 1 ] At the centre of this litigation is a happy, healthy and much-loved 3½-year-old boy to whom I shall refer hereinafter as “Child JM”.

He was born in Kelowna during a brief interlude while his mother (“Biological Mother JW”) resided there. (She is originally from Prince Rupert.) However, from the time the boy was about ten months of age, following his removal from his mother’s care, he has lived in Prince Rupert. The future living arrangements that will serve his best interests are the court’s transcendent preoccupation in these proceedings. [ 2 ] Child JM is the subject of two, parallel applications.

They were previously ordered to be heard together and counsel have agreed that evidence adduced in the concurrent proceedings shall be treated as evidence “at large” in both. In one of those proceedings, the Director of Child, Family and Community Service (the “Director”) applies to the court, pursuant to s. 41(1) (

d) of the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 (the “ CFCSA ”), for an order placing Child JM in the Director’s continuing custody. In the other, members of Child JM’s extended family—namely his aunt (“Aunt KCM”) and his natural mother’s paternal uncle (“Great Uncle WMW”)—apply, pursuant to sections 24 , 30 , 34 and 35 of the Family Relations Act , R.S.B.C. 1996, c. 128 (the “ FRA ”), for an order granting them joint custody and guardianship of Child JM. Should they be successful in that application, the plan is that Aunt

KCM would be Child JM’s primary caregiver and that Great Uncle WMW (a Haida elder) would play a supportive role, both generally and specifically in relation to fostering Child JM’s engagement with his First Nations ( Haida ) cultural heritage. [ 3 ] As can be seen, Child JM’s 31-year-old biological mother (“Biological Mother JW”) has aboriginal forebears on her father’s side. Child JM’s biological father (“Biological Father MM”)—incidentally, the brother of Aunt KCM—is Caucasian. Together they are named as respondents in both applications.

In their Replies, both natural parents oppose the Director’s continuing custody application under the CFCSA , and Aunt KCM and Great Uncle WMW’s joint application for custody and guardianship under the FRA . Further, they cross-apply in the FRA proceeding for custody and guardianship of Child JM. However, since filing their Replies, Biological Mother JW and Biological Father MM have ceased living together as a couple and their interests in these proceedings have also ceased to be aligned. [ 4 ] The current applications took on a somewhat different shape at the commencement of the hearing. Specifically: (

a) Counsel for the Director, Ms. Miller, advised the court during opening submissions that while she would call evidence and otherwise participate fully in the combined proceedings, she would defer final argument until the outcome of the application of Aunt KCM and Great Uncle WMW under the FRA was known. Ms. Miller also advised the court that, should Aunt KCM and Great Uncle WMW be successful in their application for joint custody and guardianship of Child JM under the FRA , the Director’s application for a continuing custody order under the CFCSA would be withdrawn. No one took issue then with that approach; and (

b) Biological Father MM advised the court during opening submissions, through counsel for Aunt KCM and Great Uncle WMW, that he had abandoned his opposition to the joint application for custody and guardianship of Child JM that Aunt KCM and Great Uncle WMW are pursuing under the FRA and that, indeed, he supports them in that joint application.

Biological Father MM did not otherwise participate in or attend at the hearing. [ 5 ] Accordingly, while I have before me evidence that was adduced pursuant to two concurrent proceedings—one under the CFCSA and one under the FRA —the decision I am about to give in these reasons for judgment, and the orders that I will make at the end of them, are governed by the FRA .

It is only if I decline to grant the joint application of Aunt KCM and Great Uncle WMW under the FRA that I will need to hear submissions from all counsel on the Director’s CFCSA application and then rule on that application. [ 6 ] The hearing in these proceedings occupied five full days. A considerable part of that was taken up with a detailed account of Biological Mother JW’s alleged weaknesses and performance lapses as Child JM’s parent—both before his removal by the Director and afterward during her access times with him.

Remarkably, Biological Mother JW did not take the stand herself to answer any of the evidence tendered against her by the applicants in these matters. Rather, the evidence led in chief on the natural mother’s behalf was limited to that of one medical expert and of her current, live-in boyfriend (“Boyfriend JG”). THRESHOLD ISSUES [ 7 ] Three matters have been raised by counsel that I find it necessary to address as preliminary issues.

No. 1: What Must the FRA Applicants Prove? [ 8 ] In the present FRA proceeding concerning custody and guardianship of Child JM, Aunt KCM and Great Uncle WMW are pitted as adversaries against Biological Mother JW. In his final argument, Mr. MacGregor, counsel for Biological Mother JW, contended that in such contests the governing law is not the same as that which applies to cases where both the applicant and the respondent are the biological parents of the subject child. [ 9 ] Mr.

MacGregor concedes that in the latter-mentioned, more typical, contests, the biological parent who will prevail will be the biological parent who proves, on a balance of probabilities, that placement with him or her will best serve the child’s best interests. He argues, by contrast, that in this case—where neither of the FRA applicants has the status of a biological parent but the respondent Biological Mother JW does—the challenge faced by the applicants is a much more difficult one.

He says, in fact, that there is no functional difference between what must be proven by Aunt KCM and Great Uncle WMW in their application for custody and guardianship under the FRA and what must be proven by the Director in the parallel proceeding under the CFCSA for a continuing custody order. [ 10 ] Thus, during argument Mr. MacGregor submitted that, in the present FRA proceeding, I must find as a fact that Biological Mother JW is “unfit” to provide for Child JM in order to award custody and guardianship of him to Aunt KCM and Great Uncle WMW.

That is to say, in CFCSA terms, he contends that in the present FRA proceedings, in order to allow the application of Aunt KCM and Great Uncle WMW, I must find that: (

a) Child JM would be in need of protection were he to be returned to Biological Mother JW’s care as his custodial parent; and (

b) The likelihood that Child JM will suffer harm is such that there is little prospect that it would be in the child’s best interests to be returned to Biological Mother JW. [ 11 ] In his written submission, Mr. MacGregor put the point this way: “…the foster mother’s burden of proof is essentially the same as the burden on the Director in its application for a continuing custody order.” [ 12 ] Ms. Peters, counsel for Aunt KCM and Great Uncle WMW, disagrees.

She argues that the determination of her clients’ application for custody and guardianship of Child JM under the FRA turns solely on the issue of what would best serve Child JM’s best interests and that that question falls to be determined after a weighing of the evidence by recourse to the ordinary civil standard of a balance of probabilities. She acknowledges that this case is different from a case where one of the subject child’s biological parents is engaged in a contest with the child’s other biological parent, but she does not agree that nothing less than proof that Child JM would be

in need of protection should he be returned to Biological Mother JW would suffice for Aunt KCM and Great Uncle WMW to prevail intheir application against Biological Mother JW under the FRA. [13] I take Ms.

Peters’ argument to be that the fact that Biological Mother JW is Child JM’s natural parent is an important fact that thecourt must consider in the application under the FRA, but that at the end of the day the existence of that fact on the respondent’s sidedoes not require Aunt KCM and Great Uncle WMW, as applicants, to do more than show, on a balance of probabilities, that being placedin their custody and under their guardianship would best serve Child JM’s best interests. [14] I agree with the submissions of Ms.

Peters, on behalf of Aunt KCM and Great Uncle WMW, in respect of this threshold issue,and I cannot accept the argument tendered by Mr. MacGregor as being correct in law. [15] I begin my analysis by noting that, in part at my invitation, counsel spent considerable time in argument addressing the issue ofthe burden of proof in an FRA custody and guardianship application. However, at the end of the day, I do not discern a materialdifference between their arguments on the subject of the burden of proof. I understand both Ms. Peters and Mr.

MacGregor to accept andagree that, as a civil proceeding, the FRA application before me involves an assessment of what would serve Child JM’s best interestsand that that question must be decided according to the civil standard of proof. [16] As Huddart J.A. (Hall, J.A., concurring) stated in Rail v. Rail, 1999 BCCA 587 , [1999] B.C.J. No. 2283 (C.A.) (QL): “... What is required under the Family Relations Act or the Divorce Act is that both parents bear an evidentiary burden of demonstratingwhere the best interests of the child lie, once good reason is established for a fresh inquiry into a child's best interest.

A trial judge'sconsideration of the child's best interests must not be controlled by a view of the inquiry as adversarial. She is charged to inquire into thebest interests of a child, not to find fault with a parent or arrangements custodial parents have put in place. One cannot begin withpresumptions with articulated premises.” (at para. 19, emphasis added) [17] In its relatively recent decision in F.H. v.

MacDougall, 2008 SCC 53 , [2008] 3 S.C.R. 41, the Supreme Court ofCanada has confirmed that there is only one standard of proof at play in all civil proceedings in Canada and that that is the unadornedand unalloyed standard of the balance of probabilities. This now incontestable legal verity has since been acknowledged by this court,sitting in its Family Division, hearing family cases under the FRA: see T.L.G. v. D.M.B., [2008] B.C.J.

No. 2602 at paras. 8-10 (Prov.Ct.) (QL). [18] Where counsel for applicants Aunt KCM and Great Uncle WMW does differ from counsel for respondent Biological Mother JWis in respect of the weight that she says ought to be accorded to the fact that Biological Mother JW is Child JM’s natural parent when thecourt assesses what would best serve Child JM’s best interests. Mr.

MacGregor’s submission on behalf of the natural parent is that thatfact weighs so heavily in the balance in his client’s favour that only evidence of a very substantial weight and of a particular character—namely, evidence proving that the parenting capacity shortfalls and other deficiencies of the natural parent are of such a magnitude thatthey place the subject child in peril—can tip the scales in favour of the applicants. Ms. Peters disagrees. [19] Mr. MacGregor points first to a particular passage from the seminal decision of King v. Low, (SCC), [1985] 1S.C.R. 87 in support of this novel argument.

Like the case at bar, King v. Low involved a custody dispute between a biological parent onthe one hand and persons not having that status on the other. At para. 27 of the judgment, McIntyre J. (for the court) stated thefollowing: “… It must be the aim of the Court, when resolving disputes between rival claimants for the custody of a child, to choose the coursewhich will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problemsof life as a mature adult.

Parental claims must not be lightly set aside, and they are entitled to serious consideration in reaching anyconclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.” (emphasis added) [20] I do not find in that passage support for the novel contention that has been advanced by Mr.

MacGregor. [21] No one, including Aunt KCM and Great Uncle WMW, has argued before me that the fact that Biological Mother JW is ChildJM’s natural parent is a trifling fact or a fact that should be given little importance in the overall assessment of what would best serveChild JM’s best interests. It is unquestionably an important fact and I view and treat it as such. But that important fact must be weighedalongside all of the other facts that have been established by the admissible evidence placed before me and that are material to thedetermination of what placement would best serve Child JM’s best interests.

To put the point somewhat differently, and recast it inlanguage borrowed from the passage in Rail v. Rail cited above: “[o]ne cannot begin with presumptions and articulated premises” of anykind in assessing a custody dispute, including a presumption and articulated premise citing the pre-eminence of proof of biologicallineage in a case like the case at bar. [22] I see nothing in King v. Low or any of the other authorities placed before me by Mr.

MacGregor that is capable of persuading methat biological lineage linking a party to the subject child in an FRA custody and guardianship proceeding, once proven, deposits a“super fact” onto that party’s side of the scales of justice, requiring the opposing parties (who cannot invoke biological lineage) tomarshal, in order to meet and offset the probative force of that “super fact”, proof of other weighty facts that so impugn the parentingcapacity and other qualities of the natural parent that the court is forced to the conclusion that placement with the natural parent wouldput the subject child in peril. King v.

Low says no more on this point than that biological lineage is an important fact that must beconsidered seriously but that where other facts prove that the child’s best interests require it, the custody and guardianship claims ofbiological parents must fail. [23] In his submissions Mr. MacGregor relied heavily on the decision of the British Columbia Court of Appeal in A.L. v. D.K., 2000BCCA 455. With respect, I also do not find sustenance in that judgment for the position that he now advances on behalf of BiologicalMother JW.

In that case the contest was, primarily, between the subject child’s natural father on the one side and his aunt and uncle onthe other. The trial judge’s decision to place the child in the custody of his natural father, after she had lived for some considerable timewith the aunt and uncle, was upheld on appeal.

[24] To begin, A.L. v. D.K. is clearly distinguishable from the case at bar on its facts. The subject child in that case, Child M, hadfirst been placed in the temporary custody of his well-to-do aunt and uncle in order that she might spend time with them for a fewmonths on vacation in Mexico (see para. 24, per Newbury J.A.). The aunt and uncle later sought to make the temporary arrangementpermanent over the objections of the natural father. [25] That is, factually, a very different case from the one that is before me now.

Here, Child JM came to be in the temporary custodyof Aunt KCM only after the Director removed him from the custody of Biological Mother JW by reason of the Director’s determinationthat removal was necessary to ensure that Child JM’s health was safeguarded, given (among other things) the boy’s continued failure tothrive. Child JM was grossly underweight at the time of removal despite the medical and other supports and guidance that BiologicalMother JW had received while he was under her care. Although the aunt and uncle in A.L. v.

D.K. were (in addition to being lovingcaregivers) more affluent and better provisioned than the natural father and for that reason had the ability to provide more materialcomforts and opportunities for Child M than he could, the natural father was also demonstrably a “loving and devoted parent to [Child]M” and his ability to provide satisfactorily for her needs was never in question. While no one doubts that Biological Mother JW too is aloving parent, her ability to provide satisfactorily for the needs of Child JM in the case at bar is very much in question. [26] The trial judge in A.L. v.

D.K. performed a judicious balancing of all of the evidence before him and came to the conclusion thatChild M’s best interests would be best served if she was returned to the custody of her natural father. The portions of the trial judgmentquoted in the reasons of the Court of Appeal show that all of the FRA s. 24 factors were carefully considered with no one factor beingdecisive.

The trial judge stated (correctly, in my respectful opinion) that “it is the whole picture that must be taken into account based onall of the significant evidence I have heard in this matter.” (See para. 66 of the trial reasons, quoted at para. 17 of the appeal reasons.) [27] Undoubtedly the fact that the natural father in A.L. v. D.K. had a direct biological tie to Child M was an important fact supportinghis argument that he should be given custody. In King v. Low terms it was a fact that was entitled to “serious consideration”.

However,that fact was not given superordinate weight or significance in the trial judge’s analysis—that is, it was not characterised as a “superfact” that was only susceptible of being offset by compelling evidence of the natural father being unfit to parent. Indeed, the trial judgedeclined to order that the natural mother—also an FRA applicant—have joint custody, with the father, of Child M.

He did so on theground that he was “not persuaded that, at this time it would be in [Child] M’s best interests to award her mother joint custody.” (Seepara. 68 of the trial reasons, quoted at para. 17 of the appeal reasons.) The trial judge said nothing about the child likely coming to harmif the natural mother were to be made a joint custodian. Clearly, the natural mother’s biological tie to Child M was not accorded “superfact” status because it was offset by other s. 24 considerations going generally to the child’s best interests that were given greater weight. [28] The Court of Appeal judgment in A.L. v.

D.K. upheld the trial judge on essentially the same footing. Quoting Wakeling, J.A. inHardcastle v. Muculak (1987), (SK CA), 11 R.F.L. (3d) 363 (Sask. C.A.), Newbury J.A. stated: “... all things being comparatively equal, the welfare of the child is best served in the custody of one or both of his natural parents; thereis the advantage of natural family relationships, and the sense of security which comes from knowing, and knowing of, one’s family andone’s roots.” (underscoring for emphasis added by Newbury J.A., at para. 27 of A.L. v.

D.K.) [29] The Court of Appeal acknowledged that biological lineage is an important fact and that it must be treated as such in the weighingof the evidence in custody cases, citing in support decisions such as King v. Low and Lefranc v. Siepmann, [1999] B.C.J. No. 420 (S.C.)(QL) (which latter case is also relied upon by Mr. MacGregor). But, as was the case in the trial judge’s reasons, in the Court of Appeal’sreasons in A.L. v. D.K., biological lineage was not given such prominence in the analysis that it eclipsed or dwarfed in importance others. 24 facts.

That is to say, the Court of Appeal’s approach did not substitute genuflection at the altar of natural parent status for athoroughgoing, comprehensive and balanced assessment of the evidence going to all of the considerations that define a child’s bestinterests when determining what placement will best serve those interests. Rather, A.L. v.

D.K. simply affirms the settled law that holdsthat while proof of natural parent status establishes an important fact in a custody contest between parties like those in the case at bar, itdoes not establish a “super fact” that can only be overcome by unusually compelling evidence of a particular kind. [30] This reasoning is consistent in principle with those authorities that hold that while keeping siblings together and preserving racialand ethnic connections are important factors in decision-making regarding custody and guardianship, they must be considered within thebroader context of all of the factors that speak to a child’s best interests and they are not determinative, or near to determinative, inthemselves: see A.H.P. v.

C.A.P., 1999 BCCA 203 , [1999] B.C.J. No. 696 (C.A.) (QL), Van de Perre v. Edwards, 2001 SCC60 , [2001] 2 S.C.R. 1014 and D.H. v. H.M., (BC SC), [1997] B.C.J. No. 2144 (C.A.) (QL), rev’d (BC CA), [1998] B.C.J. No. 221 (C.A.) (QL), trial judgment aff’d (SCC), [1999] 1 S.C.R. 328. [31] Thus, to track the language of King v. Low, the A.L. v. D.K. decision acknowledges that, upon a full survey of what will serve achild’s best interests, where it is “clear that the welfare of the child requires it,” a court can, should and will place a child in the custodyof an opposing party who lacks natural parent status.

No. 2: Are the FRA Applicants Engaged in a Colourable Attempt to Circumvent the CFCSA? The Objection [32] Mr. MacGregor also argues, on behalf of Biological Mother JW, that the application by Aunt KCM and Great Uncle WMW forcustody and guardianship of Child JM ought not—on the authority of W.N. and T.N. v. C.G. and C.G., 2011 BCSC 959—to be allowedunder the FRA on the ground that it amounts to a de facto attempt to circumvent the legislative regime prescribed for cases of this kindunder the CFCSA. He argues that to permit such a circumvention would be contrary to public policy.

In his own words: “In the case at bar, the foster mother is trying to circumvent a possible determination under the CFCSA that the child should be returnedto the natural mother, either unconditionally or under a supervision order, which is to say that she is trying to circumvent the CFCSA. Acustody order in favour of the foster mother should only be considered if the court is satisfied that, but for the foster parent’s application,a continuing custody order would be required. In the case at bar, the Director has applied for a continuing custody order.

If the court determines that the Director has not met the burden

of proof under the CFCSA , then it is submitted that an order in favour of the foster mother would circumvent the CFCSA.” [ 33 ] This too is raised by Mr. MacGregor as a threshold issue and so I must deal with it as such. As can be seen, the objection is related conceptually to the first threshold issue discussed above inasmuch as it rests in part upon the contention—which I have rejected— that applicants who are seeking custody and guardianship of a child in an application under the FRA that is contested by a natural parent must prove that the subject child is effectively in need of protection.

The Timing of the Objection [ 34 ] I begin by observing that the parallel FRA and CFCSA proceedings now before me were tried together for all purposes. By agreement among counsel, evidence was called in both proceedings and counsel for each of the parties in both proceedings cross- examined the witnesses called by the other parties in both proceedings.

As I have noted above, counsel for the Director notified the court, at the beginning of the first day of the hearing, that she would be withholding argument until the outcome of the FRA application brought by Aunt KCM and Great Uncle WMW for custody and guardianship of Child JM was known and that, if that application was successful, the Director’s application for a continuing custody order would be withdrawn. [ 35 ] This approach to the conduct of the hearing—which, in my experience, is quite a common approach—drew no objection from Mr.

MacGregor and, in particular, he did not contend when Director’s counsel announced her plan to await the outcome of the FRA application before deciding whether to argue that that was an inappropriate approach to take to a case of this kind. Neither did he submit then that the court was obliged to consider and decide the CFCSA application first and only then give consideration to the FRA application in order to avoid a “circumvention” of the CFCSA .

Rather, he fell in with all counsel in what was clearly a common approach to both the way the evidence would be adduced and the way the case would be argued thereafter. The Merits of the Objection [ 36 ] Quite apart from the fact that the circumvention objection was first raised in submissions and after, for all practical purposes, it could be effectively acted upon, I do not find that it has merit in law in any event. This is because the analysis that is set out in the W.N. and T.N. decision is both driven and constrained by the facts of that case.

In several key respects, the facts of the case before me differ fundamentally from those in W.N. and T.N . [ 37 ] In W.N. and T.N. , the applicants were what might be called fairly conventional foster parents who, as their relationship with the subject children strengthened, changed their aspirations regarding those children and ultimately sought to obtain custody of them under the FRA .

The children’s natural father was seen by the Director throughout the time the children were in ministry care under the CFCSA as someone who—despite having a troubled history involving drugs, alcohol and some domestic violence—had real potential to assume long-term responsibility for the children. He progressed steadily in that regard, increasing the Director’s confidence that the children could be returned to his care permanently. The process culminated ultimately in the Director’s decision to place them back with him.

In the Director’s view, at that point the children were in fact in the natural father’s custody (although he was subject to a six month supervision order).

I consider it fair to say that, there having been “no child protection concerns since the children were placed in the care of their father,” barring some unexpected turn of events the Director anticipated that the six month supervision order would expire uneventfully and that, thereafter, the children would continue to reside with the natural father without the need for further ministry involvement. [ 38 ] The foster parent applicants in W.N. and T.N. —contrary to the above-described plan for the children in that case as envisioned and executed by the Director—intervened with an eleventh-hour application of their own under the FRA to acquire custody of the children.

It is clear from the reasons of Gerow J. that they based their arguments in their FRA application largely upon their contention that, over the time the children had been in their care as foster parents, strong emotional bonds had formed that ought not to be disrupted: see, for example, para . 34. [ 39 ] In stark contrast to the foregoing, in the case at bar Child JM was, somewhat unusually, made the subject of a continuing custody order application (on November 19, 2008) almost immediately after his removal from the care of Biological Mother JW (on October 3, 2008).

The removal and continuing custody order application were prompted by the Director’s grave concerns for Child JM’s health and safety.

The ministry has never abandoned its application to place Child JM in the Director’s continuing custody. [ 40 ] While the Director made efforts to assist Biological Mother JW in developing her skills and abilities as a parent and while it facilitated increasing access for her to Child JM—including unsupervised access—as shall be seen, Biological Mother JW’s performance and progress in important areas, such as it was, did not ever persuade the Director that she was a promising candidate for the ultimate return of Child JM.

Hers did not in any way resemble the performance and progress displayed by the natural father in W.N. and T.N. — performance and progress which made him, in the Director’s view, an increasingly promising long term resource for his children. [ 41 ] The applicants in W.N. and T.N. clearly proceeded in a manner contrary to the wishes and intentions of the Director with respect to the ultimate placement of the subject children. The Director had a plan on foot for those children under the CFCSA that was close to being fully executed.

The applicants sought to override that plan by applying for an order under separate legislation, the FRA . If granted, the FRA order would have frustrated and overtaken the Director’s plan to place the subject children with their natural father under the CFCSA and granted the applicants custody and guardianship of those children under the FRA . As Gerow J. described it in W.N. and T.N. : “In this case, the Ministry advised the claimants it was intending to move towards placing the children with their father.

In response, the claimants commenced this action for custody under the FRA in an attempt to acquire custody rights they could not apply for under the CFCSA . In my view, the Legislature could not have intended that foster parents could circumvent the provisions of the CFCSA by applying for custody under the FRA .” ( at para . 32) [ 42 ] The words “an attempt ... to circumvent the provisions of the CFCSA by applying for custody under the FRA ” aptly describe the tactics adopted by the applicants in W.N. and T.N.

They have no application to the case here where the Director as CFCSA applicant, and Aunt KCM and Great Uncle WMW as FRA applicants, share a common purpose and outlook regarding what is best for Child JM.

That common purpose—which is clearly evident in the Director’s stated intention to withdraw the continuing custody order application ifAunt KCM and Great Uncle WMW’s FRA application succeeds—is to see Child JM placed permanently in the custody andguardianship of Aunt KCM and Great Uncle WMW. [43] There are other material distinctions to be drawn between W.N. and T.N. and the case at bar. [44] The foster parent FRA applicants in W.N. and T.N. were not blood relatives of the children in that case. By contrast, Aunt KCMand Great Uncle WMW are members of Child JM’s extended family having close blood ties to Child JM.

Aunt KCM is the sister ofBiological Brother M—Child JM’s father. All three share the same surname. Great Uncle WMW is the brother of Biological MotherJW’s father—Child JM’s great uncle. When Child JM was removed from Biological Mother JW’s care out of a concern for his healthand safety, the Director turned almost immediately to Aunt KCM as an extended family member to provide a home for him while longterm planning was worked out.

Biological Father MM now stands shoulder to shoulder with Aunt KCM and Great Uncle WMW andsupports their application to obtain custody and guardianship of his son Child JM even though that application is opposed by BiologicalMother JW. [45] Unlike the claimants in W.N. and T.N., Aunt KCM was approached as a resource by the Director when Child JM was removedfrom Biological Mother JW (out of concerns for his health and safety) because she was seen to be a potential long-term resource for thechild. [46] The decision in W.N. and T.N. is replete with references to the impressive progress made by the natural father in meeting theDirector’s expectations regarding parenting skills while the children were in the Director’s care: see, for example, paras. 17 and 36.

Butas I have explained, the evidence in the case at bar, which I shall outline in some detail below, is to an entirely different effect andBiological Mother JW gave no evidence of her own to contradict it. Various concerns about Biological Mother JW’s shortfalls anddeficits were identified in the early stages of the Director’s involvement with her and Child JM. Many of those concerns remain, despitesubstantial efforts made by social workers, other service providers (and even Aunt KCM) to promote growth and development onBiological Mother JW’s part as a parent.

I repeat that at no time has the Director ever abandoned its continuing custody orderapplication regarding Child JM; neither has the social worker responsible for Child JM’s case seen evidence of progress on BiologicalMother JW’s part sufficient to cause her to view a return of Child JM to her care as a realistic prospect that would serve the boy’s bestinterests. [47] W.N and T.N. and the case at bar could not be more different in their fundamentals.

For all of the foregoing reasons I reject Mr.MacGregor’s argument, based on that distinguishable case raised so late in the day, that Aunt KCM and Great Uncle WMW should beprecluded from proceeding with their FRA application because (he contends) they are seeking to circumvent proceedings under theCFCSA and accordingly acting against the dictates of public policy. No. 3: What Evidentiary Approach is Appropriate? [48] As I have noted earlier, the hearing that is the subject of these reasons unfolded as a combined hearing.

It embraced both AuntKCM’s application for custody and guardianship of Child JM under the FRA and the Director’s application for continuing custody ofhim under the CFCSA. The evidence I heard during the hearing spanned, and is common to, both applications. [49] Hearings under the CFCSA proceed within a more relaxed evidentiary regime than those that are conducted under the FRA. Forexample, pursuant to s. 66(1)(b), a CFCSA hearing may be “as informal as a judge may allow”.

Section 66(2) provides that neither thatinformality, nor departures from other technical requirements (such as those governing the admissibility of evidence, for example), willinvalidate orders made under the CFCSA so long as they do not “affect the merits of the case”. Similarly, in ss. 67(

b) and 68(2)(a), theCFCSA provides specifically for a relaxed approach to the reception of hearsay, making such evidence admissible—both from childrenand from other persons—provided the court considers it reliable. And a wide discretion is conferred upon trial judges by s. 68(2)(

b) toadmit oral or documentary evidence of out-of-court utterances found in written statements, reports, transcripts, exhibits, findings inearlier proceedings and the like, so long as they are relevant. [50] However, as I have noted, argument in the case at bar has been deferred under the Director’s application, and these reasons forjudgment are concerned only with the application brought under the FRA. No provisions comparable to those noted above relaxing theevidentiary requirements of hearings under the CFCSA are found within the FRA.

Accordingly, as a preliminary point I instruct myselfthat when approaching the evidence adduced in this hybrid proceeding—most particularly that tendered by the Director—I must beastute to apply the rules of evidence as they apply generally to civil proceedings in British Columbia. In particular, with regard toevidence of out-of-court statements tendered for the proof of their contents (that is, for a hearsay purpose), I may only admit thosestatements if: (

a) they are shown to be both necessary and reliable in accordance with the modern, “principled approach” associated with cases suchas R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 and R. v. Khan, (SCC), [1990] 2 S.C.R. 531 (and, in afamily law context, Bailie v. Bailie, [2010] B.C.J. No. 1345 (S.C.), aff’d [2011] B.C.J. No. 727 (C.A.)); or (

b) they are otherwise admissible pursuant to exceptions to the rule against hearsay found at common law or in applicable statutoryenactments.

THE FACTS [51] As I have previously noted, the FRA application of Aunt KCM and Great Uncle WMW, who seek both custody and guardianshipof Child JM, is supported by the child’s natural father, Biological Father MM, but opposed by the natural mother, Biological Mother JW(who cross-applies for an order granting her custody and guardianship of Child JM). [52] The answers to both of the questions that are now before the court—that is, the questions of who, ultimately, should havecustody of Child JM and who should be his guardian—are guided by an inquiry into what arrangements for him would best serve hisbest interests.

Section 24(1) of the FRA requires that in this case consideration be given to the following factors, with the emphasis

upon individual factors being dictated by the subject child’s individual “needs and circumstances”: (

a) the health and emotional wellbeing of the child; (

b) the love, affection and similar ties that exist between the child and other persons; (

c) education and training for the child; and (

d) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately. [53] The quantity of evidence placed before me in this regard was vast and virtually all of it came from witnesses called, anddocuments introduced, by the applicants—that is, Aunt KCM and Great Uncle WMW, and the Director.

I have mentioned before that,extraordinarily, Biological Mother JW did not take the stand to contradict the substantial edifice of evidence raised by the applicantsagainst her contention that an order placing Child JM back in her custody and making her his guardian would serve the boy’s bestinterests. She did not give any evidence of her own in an attempt to show why granting custody and guardianship to Aunt KCM andGreat Uncle WMW would not serve Child JM’s best interests. [54] I will say now that, overwhelmingly, that evidence supports Aunt KCM and Great Uncle WMW’s joint position as FRAapplicants.

Little would be gained by my giving an exhaustive recitation of that evidence. In these circumstances I do not need or intendto refer in these already somewhat lengthy reasons to all of the voluminous evidence that was placed before me. I will, instead, providesummaries and illustrative examples only. The law is clear that where there is substantial evidence to support a trial judge’s findings andthe inferences drawn from them, the trial judge does not make a reversible error by failing to make reference to every item of evidencethat was adduced: see Buchan v.

Ortho Pharmaceutical (Canada) Ltd. (1986), (ON CA), 54 O.R. (2d) 92 at 99 (C.A.) and Delgamuukw v. R. (1993), (BC CA), 104 D.L.R. (4th) 470 at 563-564 (B.C.C.A.). [55] I consider it appropriate at this point to make some general introductory comments about the evidence of the witnesses whotestified in support of the placement of Child JM with Aunt KCM and Great Uncle WMW. The witnesses on that side of the casecomprised virtually the entire complement of witnesses who testified at the hearing.

Common sense requires that I approach thetestimony of persons with an interest in the outcome of this proceeding—most centrally Aunt KCM and Great Uncle WMW—with ameasure of caution. While I saw nothing that would suggest that they slanted or coloured the truth in order to favour their positions inthe litigation, it would be naïve of me to disregard their personal interests altogether when evaluating their evidence and simply proceedon the assumption that those interests had no bearing whatsoever on, for example, their perceptions of Biological Mother JW’s lapsesand shortfalls.

These comments ought not to be interpreted in any way as constituting an indictment of the credibility or bona fides ofAunt KCM and Great Uncle WMW. They are nothing of the kind.

Rather, they stand simply as an acknowledgement of an inescapablehuman truth that I would be remiss to ignore. [56] In my view, there is a similar need for me to be properly wary and careful in my approach to the evidence of the witnesses whoare not applicants themselves but who have close familial ties to them. [57] And, similarly again, inasmuch as the Director turned to Aunt KCM as a temporary caregiver for Child JM soon after he wasremoved from Biological Mother JW’s care and inasmuch as the Director indirectly supports his permanent placement with her (withGreat Uncle WMW sharing the rights and responsibilities of custody and guardianship with her), I must also be watchful, as Mr.MacGregor stated, for “confirmation bias” and any other indicia that might suggest that witness and social worker Tracey Beynon (“Ms.Beynon”) and her ministry colleagues were less able than wholly objective witnesses would be to recognise Biological Mother JW’sstrengths as well as her weaknesses. [58] In assessing the evidence in this case, and making my factual findings based upon that evidence, I have borne theseconsiderations in mind, and I have adjusted the weight given to the evidence of all of the witnesses who support the FRA application ofAunt KCM and Great Uncle WMW to take account of them. [59] I will say, with great respect to Ms.

Beynon, that I have had to make greater adjustments to the weight of her testimony than Imight otherwise have made had she not declined to acknowledge in cross-examination by Mr. MacGregor the existence of Aunt KCM’sand Great Uncle WMW’s personal interests in the ultimate placement of Child JM. That those personal interests exist and cannot helpbut shape in some way the perspectives and judgments of Aunt KCM and Great Uncle WMW regarding Biological Mother JW issomething that, as I have noted, can hardly be gainsaid. With respect, to contend otherwise is to be naïve. But Ms. Beynon did contendotherwise.

She would not concede that Aunt KCM and Great Uncle WMW’s perspectives and judgments about Biological Mother JWcould be affected by their personal interests. For that reason I have had to approach her evidence with more caution than I have used withany other witnesses supporting the FRA application. [60] That said, the adjustments to weight that I have found it necessary to make to the evidence of those witnesses supporting the FRAapplication, including Ms. Beynon, have overall been minor and subtle.

Even after making those adjustments to account for theundeniable effects of self interest on the evidence of those witnesses—they all want Child JM to be placed in the custody andguardianship of Aunt KCM and Great Uncle WMW after all—I still find that the evidence favouring the FRA application well exceedsthe civil standard of a mere balance of probabilities. [61] My discussion of the evidence and the facts emerging from it (to which I shall now turn) is framed according to the outline ofconsiderations that I am mandated to address under s. 24(1) of the FRA.

Naturally, some of the evidence fits into more than onecategory and thus it will come up for discussion more than once. [62] As to structure and organisation, I shall first review the evidence regarding Biological Mother JW, and then turn to the evidenceregarding Aunt KCM and Great Uncle WMW. What the Evidence Establishes Regarding Biological Mother JW

Biological Lineage [63] Child JM is Biological Mother JW’s biological offspring. As I have noted above, the biological ties that link this child to hismother are important and the court in this case must, and does, treat them as such. Referring to such ties Newbury J.A. in A.L. v.

D.K.,quoting with approval from Hardcastle, said this: “[T]here is the advantage of natural family relationships, and the sense of security which comes from knowing, and knowing of, one’sfamily and one’s roots”. [64] Unquestionably, there are some things that Biological Mother JW can offer to Child JM that, by dint of her status as his naturalparent, only she can offer. Thus—to quote from King v. Low—her cross-application for custody and guardianship “must not be lightlyset aside”.

Health and Emotional Well-being [65] The evidence shows that Biological Mother JW was unable to meet Child JM’s basic needs virtually from the time of his birth. It is not disputed that by July of 2008—about seven months after his birth—Child JM’s body weight had fallen from the 75th to the thirdpercentile. That is to say, following his birth as a substantially heavier-than-average baby (with only 25% of children his age weighingmore than he did), his weight fell steeply to a point where, by July, 97% of children his age weighed more than Child JM.

Clinically,this is sometimes referred to (and, indeed was referred to at the hearing) as “failure to thrive”. [66] The evidence also shows that even with concentrated efforts on the part of medical practitioners, dieticians and ministry staff toprovide resources and parenting input for Biological Mother JW aimed at ensuring that Child JM was properly nourished, his bodyweight did not increase sufficiently to adequately address the risk that malnourishment posed for his health. Often he did not, apparently,cry out to make his needs for nutrition known the way that most children do.

This required that Biological Mother JW provide nutrientson a structured schedule, whether or not he was showing signs of hunger. Unfortunately, she was not able to do so sufficiently toproduce satisfactory gains in his growth and weight. [67] The discharge

summary relating to Child JM’s hospitalisation for failure to thrive—admissible under the authority of Ares v.Venner, (SCC), [1970] S.C.R. 608 and as a business record in the possession of the Director pursuant to s. 42 of theEvidence Act—documents the treating physician’s observations regarding Biological Mother JW’s inability (and that of her thencommon law partner) to properly feed Child JM. It states, in part: “... I can say without any hesitation that both [Biological Mother JW] and [Biological Father MM] tried their very best. They had greatdifficulty following a very simple feeding schedule.

They often could not get the last bottle in because they were not efficient aboutgetting him to feed ... Starting at the very basics they could not follow through even with some basic instructions to ensure that theyunderstood the previous day’s lesson in very basic infant nutrition.” (Ex. 1A, tab 30) [68] It is telling that, when Aunt KCM was first introduced to Child JM, Biological Mother JW was conscious of the risk that theDirector might remove her son from her care by reason of the problems she was having in maintaining his weight.

Indeed, she contactedAunt KCM’s family precisely because she feared that possibility. She sought their advice and guidance. Yet when Aunt KCM visitedKelowna in response to that cry for help, she made observations of behaviour on Biological Mother JW’s part that suggested that theneed for determined and consistent efforts to feed Child JM had still not registered in her mind.

Aunt KCM referred in her testimony tohaving witnessed Biological Mother JW during that visit pull a bottle out of Child JM’s mouth when it was only partly finished—thenipple made a loud “pop,” she said—in order that they might go out together for coffee at a restaurant. [69] Earlier that day Aunt KCM had noted that Biological Mother JW had left Child JM alone in a baby seat for 45 minutes onanother floor of the residence while she took an extended shower, requiring that that Aunt KCM pick up, soothe and comfort the boy.

She explained that, knowing about Biological Mother’s volatile temper from past experience, she was careful to return him to the placehe had first been left so as not to trigger a confrontation with his mother when she finally emerged from the shower. [70] These observations align with other evidence I heard that shows that Biological Mother JW is generally unable to grasp theimportance of crucial parenting imperatives and that her personal priorities are often, if not generally, definitive and will prevail overwhat otherwise is required from the standpoint of meeting the needs of Child JM. [71] In a rather dispiriting footnote to this part of the narrative, Aunt KCM—who had at great personal inconvenience rearrangedtravel plans to stop in at the house where Biological Mother JW and Biological Father MM were residing in Kelowna in order to answerthe cry for help—testified that she could not in the end avoid being caught up in conflict while there.

Her evidence was that BiologicalMother JW became increasingly defensive during the visit. The arguing with Biological Father MM broadened out to include AuntKCM, necessitating, eventually, her somewhat hurried departure. [72] While it is true that Child JM has long since moved beyond the “failure to thrive” phase of his life, it remains the case that at atime when his health was imperilled by his low intake of nutrients, Biological Mother JW was unable—despite receiving extensiveassistance—to meet this most basic of Child JM’s needs as an infant.

In my view, given the very limited progress that Biological MotherJW has made overall since Child JM’s birth, this manifest deficiency in her parenting performance in the early months of his life hascontinuing relevance. [73] The inability of Biological Mother JW and Biological Father MM to feed Child JM—coupled with other factors relating toproblems in securing cooperation from Biological Mother JW with medical and ministry personnel in their efforts to raise the level ofcare being provided by her for the boy—led, ultimately, to his removal from her care in October, 2008.

A telling partial extract from theopening/transfer report for Child JM’s file with the Director, prepared by Andrea Telfer (“Ms. Telfer”) and Cheryl Beauchamp (“Ms.Beauchamp”), is attached as

Schedule “A” to these reasons. (Ms. Telfer and Ms. Beauchamp were the responsible social worker, anddistrict supervisor, respectively, charged with responsibility for Child M’s file in Kelowna before it was transferred to Prince Rupert.) The opening/transfer report too is a business record, found at Ex. 1A, tab 18, and thus is admissible in the FRA proceeding.

[ 74 ] There was considerable evidence given during the hearing concerning Biological Mother JW’s hair trigger temper and her tendency to volubly display anger and upset with little apparent provocation, often in the presence of Child JM. Great Uncle WMW recalled witnessing this at large, extended family gatherings and he could see that this caused Child JM to appear to not know which of his parents to turn to.

These observations led Great Uncle WMW to conclude that it was necessary for him and others to keep a closer eye on Child JM at such times, and that Biological Mother JW’s access to him needed to be supervised. [ 75 ] Like her husband, Great Uncle WMW’s wife (“Great Aunt JMW”) had an involvement as a supervisor of some of Biological Mother JW’s access visits with Child JM. She has professional training and experience in social work and early childhood education. Her evidence, as well, covered the existence of periodic open conflict, in the boy’s presence, between his natural parents.

She responded by attempting to distract Child JM from that conflict and observed that Biological Mother JW and Biological Father MM seemed to be oblivious to the fact that their arguments were distressing to their son. Great Aunt JMW eventually raised the issue with the natural parents but saw no improvement. [ 76 ] Aunt KCM gave detailed testimony about Biological Mother JW’s mercurial temperament and the need to “walk on eggshells” while in her presence.

Her observations also touched on the tendency of Biological Mother JW to display her anger and frustrations with others or her life situation generally in noisy and disturbing ways, often while she was in Child JM’s presence. As time passed Aunt KCM began to accept that these outbursts were manifestations of some form of mental illness and, while she continued to be concerned about their impact upon Child JM, she became less judgmental and more understanding of Biological Mother JW’s many challenges. [ 77 ] Ms.

Beynon , the social worker who had primary responsibility for Child JM’s file in Prince Rupert, referred in her testimony to angry outbursts by Biological Mother JW that she witnessed. She also gave testimony recounting what numerous other professionals and service providers upon whom the Director relies in providing resources and guidance for struggling parents like Biological Mother JW said about their observations of her in this regard. However, I do not consider that, under the principled approach articulated in Khelawon , I can admit that hearsay testimony in the FRA proceedings because Ms.

Beynon’s sources could, with little difficulty, have been called as witnesses. Quite simply, the requirement of necessity was not fulfilled. [ 78 ] On the other hand, to the extent that Biological Mother JW’s inability to control her anger and emotions is documented in ministry records exhibited at the hearing—some of which were referred to by Ms. Beynon —those records are generally admissible as business records and I feel little hesitation in placing reliance on them.

I approach those documents with considerable confidence given that, in large part, they were prepared by disinterested persons who either directly or indirectly were participants in a comprehensive process involving Child JM that was authorised and guided by the Director’s statutory child protection mandate. That in my view confers upon the documents circumstantial guarantees of trustworthiness and generally satisfies me as to their reliability. [ 79 ] The following extracts are taken from documents within the Director’s records dated in the years 2008 through 2011 that were exhibited at the hearing.

They refer to Biological Mother JW’s emotional volatility and her difficulties focusing on Child JM and keeping her stresses and conflict with others from interfering with her time with him. “I had to ask [Biological Mother JW] not to raise her voice and not to fight with [Biological Father MM] – it was a visit with their son … [Biological Mother JW] got upset with [Biological Father MM] and told him to giver her the bottle. Then she looked at me and said ‘Don’t look at me. And I hate how you think I’m a bad mother.’ She grab [Child JM] really hard and put him in her arms.

She would give [Child JM] amount of the bottle and burp him. Dad tried to helper and she told him ‘Leave me alone. God.” (From Ki -Low-Na Friendship Society “Supervised Visits Contact Note” for October 30, 2008—Exhibit 1A, tab 36) “She [a Prince Rupert Community Enrichment Society family skills worker] had to intervene on the visit as [Biological Mother JW]’s voice was raised and sounded agitated.

June asked [Biological Mother JW] to resume an positive environment, however had to ask [Biological Mother JW] to join her outside of the visitation room to talk about resolving the issue. [Biological Mother JW] ended up leaving the visit voicing that she did not like how [Biological Father MM] was being. [Biological Father MM] carried on with the visit without incident.” (From Prince Rupert Community Enrichment Society Family Skills Program report for April 2009—Exhibit 1A, tab 37) “… I can no longer have [Biological Father MM] and [Biological Mother JW] do visits with [Child JM] at POP [Pregnancy Outreach Program] as this does not work for my clients. [Biological Mother JW]’s attitude towards my clients has worsened and my families are not wanting to attend because of this. [Biological Mother JW] has been rude on many occasions to some of the other moms and children on my program.

This was brought to my attention 4 times this past Monday when a visit was taking place. One of the children playing in ‘THE PLAY AREA’ removed herself when [Biological Mother JW] was arguing with [Biological Father MM]. Now this program is open to everyone and [Biological Mother JW] is starting to think that our ‘PLAY AREA’ is just for their visits. One of the moms from POP told [Biological Mother JW] to ‘please do not argue in front of my child this is not why I bring her here’. [Biological Mother JW] replied, ‘Oh, we are not arguing’.

The mom replied “yes you were and you scared my daughter she has seen enough of that from her father and that is why my children were apprehended also. This mom was very upset and this is the third time that she has had words with [Biological Mother JW]. So I must watch out for my clients and their children’s best interest and thus I have to say ‘sorry but no more Monday visits for this family …” (From an e-mail dated January 5, 2010 from the operator of the Pregnancy Outreach Program— Exhibit 1A, tab 50) “[Biological Mother JW] called me 4x today to see if Jason (her friend) was able to come to the visits.

I explained to both of them that I had to have the ok from her social worker before I could let [Boyfriend J] come. Both of them told me that he had gone for an interview at MCFD and thought it was all ok now.

I had to explain a few times that she needed to contact her social worker and have the social worker call me back. [Biological Mother JW] was raising her voice at me and said she needed support at the visits as they were getting hard …” (Prince Rupert Community Enrichment Society supervised access report dated April 7, 2011—Exhibit 1B, tab 73) [ 80 ] The evidence also persuaded me that Biological Mother JW’s tendency to be distracted by conflict, and her difficulty in avoiding repeated outbreaks of conflict, periodically got in the way of her being able to remain focussed on providing competent care for Child JM.

Some of this comes through in the extracts from ministry records quoted immediately above. A very compelling illustration of the problem is seen in the notes that record the difficulties hospital dieticians and medical staff had providing Biological Mother JW with

training in the hospital in proper nutrition and feeding practices for Child JM because of her tendency repeatedly to become embroiled in arguments with Biological Father MM. “The dietician came to teach the parents about regular nutrition and how to think about adding in food, and this was set for this hospital stay.

What interfered a great deal in the progress of the parents was that they would get into big, very loud fights. [Biological Mother JW] often would be told that she needed to tone down her voice because she was yelling at [Biological Father MM] and they would often be quite long sessions of this and [Biological Mother JM] would have difficulty controlling her behaviour. This would happen on an ongoing basis despite me going in several times throughout this hospital stay and having long conversations with them managing and monitoring their behaviour ...” (From Kelowna General Hospital, Discharge

Summary for Child JM dated October 15, 2008—Exhibit 1A, tab 30) [ 81 ] The evidence, including that quoted in the preceding paragraphs, also persuaded me that Biological Mother JW’s tendency to be distracted by conflict, and her difficulty in avoiding conflict, repeatedly got in the way of her being able to benefit from the services that were being provided to her by various resources and service providers through the ministry with a view to enhancing her capacity to provide high quality care for Child JM.

As Aunt KCM described it during cross-examination, she, the social workers and everyone else charged with responsibility for assisting Biological Mother JW found it very difficult to do so because of her uncooperative, rude and angry disposition. [ 82 ] Biological Mother JW’s overall distractibility further resulted in some instances of her briefly losing track of Child JM while he was under her supervisory control. Ms. Beynon , Aunt KCM and Great Aunt JMW all gave evidence on this subject. While Mr.

MacGregor’s cross-examinations of those witnesses convinced me that not every incident of this kind that was addressed in testimony clearly pinpointed a lapse or shortfall on Biological Mother JW’s part, I am satisfied that on some of the occasions referred to by Ms.

Beynon , Aunt KCM and Great Aunt JMW, Biological Mother JW did allow her mind to be taken away temporarily from minding Child JM when that was her main priority. [ 83 ] I find that Biological Mother JW’s tendency to lose focus—by reason of her inclination to fall easily into conflict with others or of her general distractibility—is a tendency that has negative potential for Child JM’s long-term physical and emotional health and wellbeing. [ 84 ] There can be little room for argument that repeated eruptions, on the part of Biological Mother JW, into loud displays of anger and hostility—often toward Biological Father MM, sometimes toward her subsequent partner and sometimes toward others—have had detrimental emotional effects upon Child JM.

While no one expects that Child JM will move through the world entirely free from exposure to negative emotion on the part of the adults in his life, the evidence led at the hearing of these proceedings persuaded me that, while he has been in Biological Mother JW’s presence, Child JM has been exposed to more such outbursts and eruptions than he should have been. I hasten to say as well, however, that the evidence shows that Biological Mother JW has availed herself of some of the anger management and parenting input that has been arranged for her by ministry officials.

Regrettably, the evidence also establishes that her difficulties in controlling her temper and maintaining good parenting practices persist. These facts militate against the court making any decision to restore full custodial and guardianship rights and responsibilities regarding Child JM to Biological Mother JW. [ 85 ] The evidence shows that over the course of Child JM’s short lifetime, there has been little stability in the relations Biological Mother JW has had with significant others.

Her quasi-spousal relationships with men have been fraught with conflict and punctuated by break-ups, re- unitings and further break-ups. She has another child, by a previous partner. When their union ended, the partner was awarded custody of that child (although Biological Mother JW has contended that he “stole” or “kidnapped him from her): see Exhibit 1A, tabs 7-10. I have already made numerous references to the perpetual conflict that characterised the relationship she had with Biological Father MM.

I consider this apparent lack of a capacity to achieve stability in her adult relationships to be an aspect of Biological Mother JW’s overall makeup that works against the interest that Child JM has in having a relatively serene, stable and secure emotional environment within which to develop. [ 86 ] I must acknowledge in this connection that there is evidence to show that Biological Mother JW is in a new, live-in relationship with the individual to whom I have referred as “Boyfriend JG”. However, the evidence also shows that that relationship has had its volatile moments.

A printout of messages published on Biological Mother JW’s Facebook page reveals that as recently as October 30-31 of this year (shortly before the hearing), she considered that Boyfriend JG had unceremoniously “dumped” her.

In her own words: “ Ahhhhh thank u veryy much I was dumped today on Halloween sshit lol … IT’S A FUCKIN CRIME ~ to DUMP someone and YOU told them u loved them on PHONE the other day and then YOU say COME drive over and get me SO I did and U never Came out WTF … #2 crime when you get a friend to message me fbk that you don’t want me ~ wow that’s the worst ever man …” (Exhibit 3, p. 2) [ 87 ] Biological Mother JW did not testify to contradict this evidence of a breakup.

Boyfriend JG’s attempts to neutralise that evidence by attributing the Facebook postings to unidentified others who, he said, had gotten hold of Biological Mother JW’s Blackberry unlawfully and put false message in her name on Facebook were inherently implausible. They were also shown, during Ms. Peters’ cross-examination, to be plagued with factual inconsistencies.

While they may have since re-united, I find as a fact that on or about October 30-31, 2011, Biological Mother JW and Boyfriend JG had some kind of a breakup in their quasi-spousal relationship. [ 88 ] Given that evidence and Biological Mother JW’s troubled history generally, my concerns about relationship instability in the long term and its potential detrimental effects upon Child JM have not been allayed by the testimony I heard about Biological Mother JW’s most recent, quasi-spousal affiliation. [ 89 ] An issue somewhat related to relationship instability is that of housing and employment instability.

The evidence showed that Biological Mother JW has moved about a good deal since Child JM was born—in some cases as a result of quasi-spousal relationships coming to an end and in some cases by reason of other causes. I heard considerable testimony about strife in Biological Mother JW’s relationship with one female roommate that resulted in a somewhat precipitous move. Other evidence established that problems in keeping current with rent, and with holding drinking parties that disturbed other building occupants, resulted in the need for Biological Mother JW to relocate to new premises.

She has now obtained an apartment in Delta, in the Lower Mainland—at a great distance from

Prince Rupert and most of Child JM’s cultural and familial ties—and intends to settle there, she hopes with Child JM. [ 90 ] While a parent cannot be faulted for moving periodically as circumstances dictate, the preservation of some degree of stability and continuity in a child’s physical and human surroundings has much to recommend it in terms of fostering that child’s wellbeing overall. The circumstances dictating at least some of Biological Mother JW’s moves are, as I have said, rooted in her difficulties in getting along with others generally.

Her inability to secure and maintain steady employment, or a clear sense of what path her career will follow, also help to explain her various moves—the most recent being to Delta, in the Lower Mainland, at a great distance from almost all of the important people and cultural inputs in Child JM’s life. The greatly disruptive effect of relocating Child JM there, as she now wishes to do, seems not to have been fully considered or grasped by Biological Mother JW.

The pattern of this evidence suggests that the provision of a solid and secure set of living conditions for Child JM, and a solid economic base from which to operate, has not achieved as much priority in Biological Mother JW’s overall life planning as one would expect to see, and as Child JM’s physical and emotional wellbeing require. [ 91 ] Evidence was led of an incident that occurred during which Biological Mother JW applied what I accept and find was excessive force when manoeuvring Child JM into his car seat. The second-hand versions of that incident given by Ms.

Beynon and Aunt KCM were contradicted, to some degree, in the details by the evidence of Child JM’s paternal grandmother (“Grandmother AK”). Grandmother AK, incidentally, is also the mother of Aunt KCM, and it was she who witnessed the incident first hand. [ 92 ] I treat the account of Grandmother AK—who was not cross-examined—as the best evidence concerning that incident. On the day in question in late 2009, Child JM was fussing, arching his back and generally refusing to cooperate with the adults who were trying to get him belted into his protective car seat.

Biological Mother JW intervened in an “I’ll show you how it’s done” way and forced the boy down into the child seat, applying pressure with her hands to his hips to overpower his resistance. [ 93 ] Grandmother AK considered the force that Biological Mother JW used on that occasion to be clearly excessive. As I have said, I accept her evidence in this regard. Her testimony was measured and clear , and it was given with confidence.

I view the account she gave of the incident as evidence of a tendency on Biological Mother JW’s part—when agitated or frustrated—to permit her emotional state to overwhelm her good judgment and sense of proportion, propelling her to employ physical techniques for securing her child’s compliance that go beyond what is proper and justifiable. [ 94 ] I will add that the prominence of this tendency in Biological Mother JW’s makeup ought not to be overstated. The car seat incident is the only such incident that was addressed in five days of evidence before me.

The incident did not trigger a child abuse report to the ministry, or the laying of criminal charges. Nevertheless, it does add to the other concerns noted above about Biological Mother JW’s inability to deal maturely, calmly and effectively with the daily stresses and frustrations of child rearing and life generally.

It also adds to my concerns about other ways in which Biological Mother JW’s responses to those stresses and frustrations could detrimentally affect Child JM’s physical and emotional wellbeing were she to be given primary responsibility for his day-to-day care. [ 95 ] Still further evidence that raises health and safety concerns about Biological Mother JW’s candidacy as a long-term caregiver for Child JM relates to a plan that she and Boyfriend JG once formulated to take the boy out on Boyfriend JG’s fishing boat. Ms.

Beynon , on behalf of the Director, disallowed the outing. [ 96 ] While the evidence was somewhat equivocal regarding the circumstances under which the planned outing was intended to occur, Boyfriend JG did say while being examined in chief by Mr. MacGregor that the trip was to be a working one—that is to say, for the purpose of commercial fishing. However, he also said at different points in his testimony that it was to be a recreational outing only. [ 97 ] Boyfriend JG’s admission during his direct testimony was corroborated by the evidence of Ms.

Beynon who, as well, understood (based on the request made by Biological Mother JW to go out on the vessel with Child JM during an access visit) that Boyfriend JG and Biological Mother JW intended to fish commercially during the proposed outing.

I find as a fact that the proposed outing was not to be a recreational but rather a working one. [ 98 ] This evidence raises concerns about Biological Mother JW’s judgment (and that of Boyfriend JG, for that matter) concerning the appropriateness of taking a very young child out on the seas in a commercial fishing boat in circumstances where other demands on the adults’ time would, at least at times, significantly limit their ability to provide proper supervision and a suitable environment for him. [ 99 ] There was evidence led at the hearing of this matter to show that Biological Mother JW is a relatively new driver and has not yet attained the level of proficiency necessary to permit her to bring passengers with her in a car.

Notwithstanding this, on the evidence of, among other witnesses, Great Aunt JMW and Boyfriend JG, I find that Biological Mother JW has on occasion driven others around in her car. Indeed, Great Aunt JMW testified that she recalled Biological Mother JW having driven Child JM in her car.

This evidence, which I accept, casts further doubt upon Biological Mother JW’s ability to make choices involving Child JM’s safety interests that put those interests ahead of her own convenience and other considerations of lesser importance. [ 100 ] I find that Biological Mother JW’s constrained abilities to meet Child JM’s basic physical and emotional needs have not changed greatly since the time of his removal from her care.

The evidence shows that they have persisted up to the present despite, for example, the ending some time ago of her relationship with Biological Father MM—a relationship that most agree was particularly fraught with difficulties. [ 101 ] Ministry representatives—to a large extent at the prompting of Aunt KCM and Great Uncle WMW—have attempted to establish a pattern of greater access by Biological Mother JW to Child JM with diminishing degrees of supervision. However, the problems that are recounted in these reasons thwarted those efforts to a considerable degree.

The access regime oscillated between periods of greater and lesser access and greater and lesser supervision, largely by reason of those problems and of the difficulties that anyone called upon to become involved in overseeing Biological Mother JW’s time with Child JM encountered when attempting to deal with her anger and hostility.

When opportunities for greater independence were developing, they were inevitably followed by new incidents and eruptions of conflict, thereby triggering the need for greater supervision. [ 102 ] I have acknowledged above the efforts that Biological Mother JW has made to address her shortfalls in meeting Child JM’s most

basic human needs but I regret to say that the evidence persuades me that she has made little real progress in that regard. This is attributable, in part, to her having little insight regarding the needs of her son and her own limitations. That lack of insight was dramatically illustrated by her statements to psychologist Dr. Ted Altar (whose expert evidence is considered more fully later on in these reasons) that she has never neglected to meet Child JM’s needs and that the boy’s failure to thrive could not be attributed in any way to deficiencies in her care for him.

As Aunt KCM expressed it, while there has certainly been “ebb and flow” in the sources of stress in Biological Mother JW’s life over the time that has passed since Child JM’s removal, her ability to cope with those stressors when she confronts them today has not changed greatly. Unfortunately the history shows that when she de-compensates, to the extent he is in her care, the quality of care that Biological Mother JW provides for Child JM deteriorates to an unacceptable level.

Love, Affection and Similar Ties [ 103 ] While many facts are in controversy in this proceeding, the facts that Biological Mother JW has strong ties of love and affection to Child JM, and that those ties are reciprocated, are not among them. Aunt KCM, Great Uncle WMW and all of Biological Mother JW’s “adversaries” in this litigation readily acknowledge those bonds and no differential in this regard has been raised by any witness, or by counsel, as a premise for favouring the applicants over the respondents in the FRA hearing.

Education and Training [ 104 ] Child JM is now only 3½ years old and so the part of his life where formal education and training begins in earnest is not yet upon him.

But “education and training” are elastic notions and they embrace the less formal offerings of daycares and preschools and the still less formal offerings of parental figures, extended family members, members of a child’s ethnic community and members of the community at large. [ 105 ] I have canvassed extensively, above, the evidence concerning Biological Mother JW’s challenging personality, her mercurial temperament and her difficulties in getting along with most of the people she deals with.

These tendencies, as I have acknowledged, have interfered with Biological Mother JW’s own effectiveness as a parent during her access times with Child JM. They have also resulted in the loss of opportunities for Child JM to benefit from what others in his extended family, his broader Haida First Nation family and the community at large have to offer him. Witnesses testified to the disruption of daycare /preschool placements for Child JM as a result of conflict developing between Biological Mother JW and the service providers.

They also testified to the loss of opportunities to participate in programs like Pregnancy Outreach, again as the result of open displays of conflict between Biological Mother JW and her then partner disrupting the program sessions and upsetting other participants. Members of Biological Mother JW’s own extended family provided daycare for Child JM but eventually discontinued that due to problems with reliability and periodic conflict with his mother.

I heard testimony to say that Biological Mother JW’s lack of full engagement, unreliability and focus upon her own needs and desires have interfered with the efforts others have made to integrate Child JM effectively into ceremonial dance and other cultural programs made available by the Haida First Nation to young children of Haida descent. [ 106 ] All of that evidence stands uncontroverted by any contrary testimony from Biological Mother JW herself. [ 107 ] Given the character of the evidence before the court as a whole, it is reasonable to expect that, were she to have custody and guardianship of Child JM, as the demands upon Biological Mother JW to foster and facilitate his learning increase with school enrolment and greater involvement in community activities, the stresses upon Biological Mother JW would grow and the problems mentioned above would proliferate. [ 108 ] Overall, I am persuaded by what I have heard and seen over the five days of the hearing within that the return of Child JM to Biological Mother JW’s care would be inimical to the boy’s ability to develop and learn, both at home and in the company of the other members of his extended family, his First Nations family and the community at large.

Capacity to Exercise Custody, Guardianship and Access Rights Adequately [ 109 ] I have discussed above numerous examples of actual shortfalls in performance, by Biological Mother JW, of her parenting functions while caring for Child JM both before his removal and, thereafter, during her access visits with him. From time to time in that review of the evidence, the issue of her capacity to carry the role of parent of a young child has come up obliquely.

For example, to the medical doctors and ancillary healthcare professionals who intervened when Child JM’s weight was in steep decline, Biological Mother JW seemed incapable of learning even the most basic skills for feeding Child JM and of following through on the advice she received in this regard. As a result, his weight continued to fall. She seemed to almost every witness who has dealt with her to be chronically distractible and to be incapable of putting Child JM’s needs ahead of her own, personal priorities.

She seemed so prone to angry outbursts and conflict with those around her that she could not keep her mind focused upon the immediate task at hand of creating a safe, secure and nurturing environment within which Child JM could grow and flourish. During his time with her, Child JM has had to endure an excess of stre

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