Citation:	Director v. M.P. 2005 BCPC 0651				Date:				20051007
				File No:					2005-19226
				Registry:					Vancouver
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:
H.M., born [D.O.B.]
BETWEEN:
DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE
APPLICANT
AND:
M.P.
PARENT
EXCERPT FROM PROCEEDINGS
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE B.K. DAVIS
Counsel for the Director:		R. Stewart
Counsel for the Parent:		C. Ash
Place of Hearing:		Vancouver, B.C.
Date of Hearing:		October 7, 2005
Date of Judgment:		October 7, 2005

 

[1]        THE COURT:  Yes, I will give my reasons for judgment.  They are not as full as they would be had I been able to reserve for a longer period of time.  I apologize, but the result would not have changed.

[2]        I am being asked to determine where the child H.M., born [D.O.B.], should reside until a trial or hearing takes place to determine whether or not this child is in need of protection.  In other words, this is a presentation hearing.  At a presentation hearing I can do one of several things:

1.         I can order that the child remain in the interim custody of the Director.

2.         I can order that the child be returned to, or remain in the care of, the parent apparently entitled to custody of the child under supervision of the Director, or

3.         I can order that the child be placed in the custody of a third party, under the supervision of the Director, so long as that third party consents.

 

[3]        The Director has really only one concern in this matter, and that is the company that the mother is keeping.  She says that she is pregnant by, and wants to live with, a felon, along with the child who is the subject of these proceedings.

[4]        What has the felon been convicted of?  A record of convictions that have been filed discloses that the mother's paramour has a history of breaking into places and stealing things, or attempting to; and has driven a car while his ability to do so was impaired.  As well, he has a history of beating up people, threatening people, and causing some of the people that he has beaten up bodily harm, as well as having killed an individual.  That this, says the Director, causes them to believe that at a trial the child will be shown to be in need of protection if the mother and her friend move in together to become a family unit.

[5]        The quote, "becoming a family unit," is a little difficult for the present, and for some time in the future, because the felon is on parole, and is required to spend his nights at a halfway house and to be in before his curfew.  The evidence shows that when he leaves the halfway house he goes to where the mother is, and remains with her until he has to return to the halfway house in the evening.  This routine may continue for some time as one of the reports in Exhibit 1 provides [as read in]:

On February 20th, 2004, the Honourable Judge W. A. Blair sentenced S.S. as a long-term offender to a two-year term of imprisonment, to be followed by a 10-year community supervision order.  S.S.'s long-term supervision order will remain in effect in the community until 2016/02/19.

 

In other words, February 19th, 2016.

[6]        At the present time S.S., the individual with whom the mother has a relationship, is presently in custody.  He gave evidence today and his evidence was given while he was in custody.  He is apparently in custody because of a violation, or an anticipated violation, of one of the terms of his parole or supervision.  He anticipates being released in the very near future, and in any event, his term of incarceration expires in February of 2006.

[7]        This decision, that is the decision I am to make, is solely to determine where the child is to reside.  That is, all the Director need do is make out a prima facie case that the child may be in need of protection, and then I can make one of the orders set out above that is appropriate in the circumstances.

[8]        I am of the opinion that one of the factors I can look at is past history to determine what may happen in the future.  What I have here is a person who will be directly involved in this child's waking life, on a daily basis, until the trial to determine if the child is in need of protection.  That individual has a sordid past, especially as it relates to children.  In fact, one of the charges of assault relate to him and his interaction with his own son.

[9]        The documents in Exhibit 1 show that the individual was a bully towards his son.  He hurt his son.  When the opportunity presented itself to take courses or programs to put him, the father, in a position of perhaps changing his behaviour, the father did not actively participate nor properly complete those programs, in the sense that he may have gone through the motions, but did not complete the programs in the spirit of which the programs were originally made.

[10]      To put this person in a position of having anything to do with a child, especially one so young would not only not be prudent, it ought not be done at this point in time.  I have concerns that both the mother and father were aware of the Director's concerns regarding interaction of this gentleman with this mother and her child.

[11]      I have no doubt of this, as the child was allowed to remain in the care of the mother, but only if she went to a transition house.  The mother said in her evidence that the reason she went to the transition house was to avoid her child being removed, and that the reason it would be removed was because of her association with S.S.  Yet she says that, "I went to see S.S. almost every day.”

[12]      This is confirmed by S.S. who says that he had a great deal of involvement in this child's life, that is from the time the mother obtained custody until the child was removed by the Director, for a total of some eight or nine days.  The mother was quick to add this, though, "He is not always violent, not always threatening."

[13]      I do not propose reviewing or setting out all of the evidence as this is an interim hearing.  I do not wish to prejudice anyone by making findings that are not necessary for this decision. 

[14]      I am aware of counsel for the mother's arguments that the Director has no valid reason to remove this child, as there were no complaints.  That is, any concerns were mere speculation. As well, the Director has not shown that the child is in immediate danger or that the removal is in the best interests of this child.

[15]      Dealing with only two of those arguments, I can say that the Director quite properly removed the child, based on the evidence available, and the conduct of the mother in placing the child in contact with S.S., and the Act does not limit danger to immediate danger.  It seems to me that if there is, on the balance of probability that the child will be exposed to some form of danger, that is sufficient.

[16]      As well, I am mindful of the law that Mr. Ash proffered, however, dealing only with one of the many distinctions, the matter before me does have independent evidence upon which I can rely.  I refer to Exhibit 1.

[17]      Accordingly, I will make a temporary order of custody in favour of the Director.  I will order that the mother may have access to the child, supervised, at the direction and discretion of the Director. 

[18]      The felon is not a party, and is not entitled to access.

(EXCERPT CONCLUDED)