[1] In this proceeding, the applicant, L. A., mother of the subject child, seeks an order, pursuant to s. 54 of the Child, Family and Community Services Act S.B.C. 1996 c. 46 (hereafter referred to as "the Act"), to set aside a Continuing Custody order made by consent on August 21, 1998 so that she may thereby regain custody of her son. In the alternative, she seeks an order for access to her son pursuant to s. 56 of the Act. The Director of Child, Family and Community Service (hereafter referred to as "the Director"), opposes both applications.

[2] This matter has had a lengthy and somewhat tangled history and what follows is an abbreviated version of that history.

[3] L. A. is presently 32 years old. Her parents are both professional people. L.A. lives alone. She is the natural mother of three children, J.M., born on July 22, 1988, J.R.M. who was born in 1991 and B. M. who was born in 1996. J.M. was adopted soon after his birth and L.A. has had no contact with him since then. As for J.R.M., on September 28, 1992, L.A. entered into a written agreement whereby she granted de facto custody of him to the sister of J.R.M.'s father. (Hereafter referred to as "the M family".) L.A. exercised regular access to J.R.M. between 1992 and 1997 but then serious differences arose between her and the foster-parents and she has not seen J.R.M. since November, 1998. (It should be mentioned that, according to L.A., throughout her relationship with J.R.M.'s father she suffered significant physical and mental abuse.)

[4] Within days of the birth of B.M., L. A., as she had done with J.R.M., agreed to allow the M. family to raise B.M. She lived at the M. family residence for a few weeks but then moved out, leaving B.M. behind. A short time later, following a meeting attended by L.A. and her parents, L.A. agreed that B.M. should live with the foster-family with whom he has resided ever since (hereafter referred to as "the W. family").

[5] Subsequently, L.A. changed her mind and began to allege that she had surrendered custody of B.M. under duress from members of the M. family. In December 1996, she applied, in this court, for custody of B.M. On February 6, 1997, the Honourable Judge Lytwyn ordered that the child be returned to L.A. However, on February 5, 1997 the Director received a report which indicated that B.M. might be at risk with L.A. and the next day, coincident with Judge Lytwyn's order, the Director removed B.M. The Director alleged that L.A. lacked adequate parenting skills and had not formed an attachment to her son. B.M. was returned to the M. family.

[6] On February 13, 1997, at the hearing mandated by s. 35 of the Act, L.A. was granted reasonable access to B.M., supervised at the discretion of the Director.

[7] On March 20, 1997, by consent, an order was made, pursuant to s. 40 (1) of the Act, that the child was in need of protection and should remain in the custody of the Director for three months. L.A.'s right to access was continued.

[8] Subsequently, the Director applied for a continuing custody order and the matter came on for hearing before me on June 5, 1998. The matter continued on August 18 and 21, 1998 and on the latter date, before judgment was rendered, L.A. gave her consent, in open court, to the granting of the Director's application. At the same time, it was agreed between the parties that she should have reasonable access to B.M., supervised at the discretion of the Director. It is this order that L.A. seeks to have set aside in this proceeding.

[9] Within a very short time, L.A. once more had second thoughts and, on October 29, 1998, filed a Notice of Motion in Provincial Court seeking to set aside the continuing custody order. Throughout the following three months L.A. made further applications seeking to settle the terms of the said order alleging that it contained an error and seeking changes to the ordered access.

[10] On March 8, 1999, L.A. filed a Notice of Claim in this court wherein she sought damages against B.M.'s foster parents and two social workers for "pain and suffering, emotional loss, financial retribution (sic), counselling, transportation."

[11] On March 18, 1999, L.A. appeared in court, without the assistance of counsel, and withdrew her applications. She advised the court that she no longer wished to have access to B.M. and the continuing custody order was varied to accommodate her wish.

[12] On October 4, 1999, L.A.'s civil action was dismissed.

[13] On March 2, 2000, L.A. made a further application to cancel the continuing custody order on the basis that there had been a change of circumstances since it was made.

[14] On June 23, 2000, I granted L.A. an order pursuant to s. 54(1) of the Act that her application be permitted to proceed. The matter subsequently came on for hearing on August 21, 2001 and the taking of evidence concluded on December 19, 2001.

[15] At the hearing, L.A. testified and called one witness, D.L., the father of B.M. She also filed a letter from her father, M.A., in which he expressed the view that L.A should be granted supervised access to B.M. Both M.A. and L.A.'s mother are academics. They have been separated for some time and her mother presently works outside Canada. At the hearing in August, 1998, M.A. had testified and had opposed his daughter's application for custody.

[16] L.A. was examined and cross-examined at length. She described in detail, the various efforts she had made, since the granting of the continuing custody order, to improve her parenting skills. She had received counselling from a psychotherapeutic counsellor by the name of Ms. Nicoletta Zampini since September, 1998. Ms. Zampini, who did not testify, stated in a letter dated January 14, 1999 and filed at the hearing, that L.A. possesses many strengths and had made positive efforts to rehabilitate herself. She further stated that she supported L.A.'s desire to regain custody of both J.R.M. and B.M. L.A. testified that she had last consulted Ms. Zampini in February or March, 1999.

[17] Counsel for L.A. also filed a report dated June 6, 2001 from Dr. Brian Atkinson, a Clinical Psychologist. L.A. testified that she had referred herself to Dr. Atkinson in an effort to prove to the court that she had recovered from the effects of various traumatic experiences that had befallen her and that she was now fully capable of caring for her children. As well, she sought to counteract a report by Dr. Hanna Lysak, also a Clinical Psychologist, which had been filed at the hearing in August, 1998. Dr. Lysak, both in her report and her viva voce evidence, had expressed serious concerns about L.A.'s mental health and personality but nevertheless recommended that she be given an opportunity to become a capable parent to her children as, in her opinion, L.A. was highly motivated and capable of being taught to parent. Dr. Lysak expected that it would take a year or so of such education before L.A. could parent independently.

[18] In his report, Dr. Atkinson concluded as follows:

The impression formed regarding [L.A.] was that she seemed to be functioning reasonably well psychologically in most spheres of her life. In recent years she had taken action to gain better control of herself and give direction to her life. There was (sic) certainly no obvious signs of pathology. [L.A.] presented as being reasonably rational and essentially grounded in reality. While she continues to have issues from the past that need to be addressed, in general she seemed to be managing adequately.

[19] L.A. further testified that she had taken other steps to improve both her parenting skills and herself. She had taken and successfully completed Anger and Stress Management courses in June, 2000. In September, 2001, she had taken a course entitled "Support for Young Families". She had also received other counselling from a number of community resource centres. She planned to take a Life Skills and Career Management course.

[20] L.A. indicated that while she felt capable of caring properly for B.M. she felt that she would benefit from support from the Director and was willing to accept any such assistance.

[21] In the course of testifying, L.A. sought to explain why she had agreed to the Continuing Custody order in 1998 despite her desire to regain custody of B.M and her belief that she was able to care for him. She explained that she had been suffering from serious emotional and physical problems in August, 1998. Amongst other things, she had suffered both post-partum depression and post-traumatic stress as well as the physical after-effects of the C-section birth of B.M. in 1996.

[22] Finally, L.A. testified that she had consented to the continuing custody order on the understanding that she would be given reasonable access to B.M. but that the Director had denied her access shortly after the order was pronounced and continued to frustrate her efforts to see B.M.

[23] The evidence of D.L., the father of B.M., was as follows. Prior to B.M.'s birth, he and L.A. had been going out together as boyfriend and girlfriend. He never cohabited with her after the birth and played no role in his son's life as he was, at the time, suffering from an addiction to illicit drugs. Nor did he participate in any of the proceedings leading to the granting of the continuing custody order even though he was served with notice of them. However, he supported the position taken by the Director as he felt that L.A was incapable of taking proper care of B.M.

[24] In the last three years, his opinion in this regard had changed. He now felt that L.A. was able to be a good parent to B.M. She had stopped associating with drug-addicts and had stopped smoking marijuana and drinking to excess. She had now become more responsible and able to live independently of her parents.

[25] D.L. testified that he had now recovered from his addiction and had become a born-again Christian. He intended to apply for custody of B.M. in the near-future and had contacted counsel for this purpose. In the meantime, he supported L.A.'s application for custody of B.M.

[26] The Director called as witnesses, two social workers who had dealt extensively with L.A. and B.M.'s foster-father. Their evidence was as follows.

[27] Charles Peries was the Team Leader at the Surrey North office of the Ministry from February 23, 1998 until April 2, 2000. Between February 1998 and November 18, 1999, he had ultimate responsibility for the file involving B.M. and L.A. as he supervised the social worker who had day-to-day conduct of the file. In November, 1999 B.M.'s foster-parents moved and the file was transferred to an office in their new location.

[28] Mr. Peries testified that even after the file was transferred, he continued to receive many telephone calls from L.A. who was seeking to have a Family Service File opened on her behalf and for a Family service worker to be assigned to her. Mr. Peries explained that a Family Service File is opened whenever a child is taken into care or the Ministry is providing support to a family. The opening of such a file allows the Ministry to provide a wide range of support measures including counselling, food vouchers and travel vouchers. He testified that a Family Service File is closed once a continuing custody order is granted. He stated that he had explained this to L.A. on many occasions but that she had not heeded his advice and continued to inundate his office and others with telephone calls.

[29] Ultimately, and even though he was not working at the office responsible for L.A.'s file, Mr. Peries agreed to be the contact person so far as she was concerned and to take her telephone calls. He commenced taking these calls in November, 2000 and when he testified he brought with him records indicating that L.A. had made in excess of one hundred calls between November, 2000 and August, 2001. He testified that from 1997 to 1998, L.A. had made two hundred and eighty telephone calls to a single social worker. In the following year, she made a further two hundred or so calls to another social worker.

[30] Mr. Peries testified that according to the records held by the Ministry, L.A. had last exercised access to B.M. on August 31, 1998. He stated that despite many efforts on the part of social workers to arrange further access, L.A. did not take steps to see B.M.

[31] On October 22, 1999, L.A. attended a meeting with Peries, the social worker handling B.M.'s file, and the latter's foster-parents. The meeting came about, in part, because a short time before an access-visit had been arranged and B.M. had been taken some distance to the arranged location only for L.A. to fail to appear. At the meeting, Peries expressed his concerns with regard to L.A.'s behaviour. A series of rules to govern further access by L.A. were discussed and agreed upon. These included L.A. having to telephone the day before a scheduled visit to confirm her attendance and, if she did not do so, that the visit would be cancelled. A letter was subsequently sent to L.A. confirming what had been agreed to at the meeting.

[32] Matters did not improve and ultimately the Director applied for an order cancelling L.A.'s right to access. When this application was heard in March 19, 1999, L.A. consented to the application being granted.

[33] David Peck, the social worker who assumed control of B.M.'s file in November, 2000, testified that B.M.'s older brother, J.R.M., has been diagnosed as suffering from Foetal Alcohol Syndrome ("F.A.S."), and that the Ministry intended to have B.M. examined as there was some concern about his behaviour in that he is hyperactive which is characteristic of F.A.S.

[34] Mr. Peck testified that the Ministry was very happy with the performance of B.M.'s foster-parents and that it supports their desire to adopt him.

[35] He had discussed the issue of access by L.A. with the foster-parents and they had expressed great concern and disagreement with the idea. They explained that they felt it would result in a shift of focus from B.M.'s needs to those of L.A. and that this would be harmful to B.M.

[36] B.M.'s foster-father, B.R.W., testified. He stated that his mother had worked with mentally-challenged adults and children some of whom had resided at his family home. He himself worked with mentally ill men approximately ten years ago for about eighteen months.

[37] He and his wife had had contact with B.M. since he was one-month old. L.A. had freely agreed that they should take care of B.M. He retained a lawyer to draft a formal agreement granting them guardianship but L.A. had not executed it.

[38] B.M. had been removed from their home in February 1997 when L.A. had been granted custody of him. The Ministry removed B.M. from his mother almost immediately and B.M. then lived at another residence. However, he stayed with B.R.W. and his wife every weekend from Friday to Sunday.

[39] In November, 1997, B.M. returned to live with B.R.W. and his wife and has remained with them ever since. He refers to them as "mom" and "dad" even though he is aware that they are not his natural parents. They have told him that his natural mother loves him but is unable to take care of him.

[40] B.R.W. described B.M. as very intelligent and musically inclined. However, he requires a lot of structure as he can become upset when things are not going the way he wants. At times, he has tried to hurt himself or to damage property and B.R.W. has had to physically control him. These outbursts may result from an allergy to yellow dye and he and his wife take care to see that B.M. does not come in contact with it.

[41] So far as F.A.S. is concerned, B.M. has been examined and there are no physical signs of the syndrome. However, he is to undergo further testing to see if he suffers from emotional symptoms of F.A.S.

[42] Between September, 1996 and February, 1997, he and his wife supervised five or six access visits to B.M. by L.A. at their residence. He testified that on occasion they had to intervene because B.M.'s safety was jeopardized or because L.A. was not caring for him adequately. Many more visits had been scheduled but L.A. had not attended.

[43] After B.M. was returned to their care in November, 1997, access visits were scheduled to take place away from their residence. They noticed behavioural problems in B.M. after these visits.

[44] B.R.W. testified that he and his wife had received what he termed "a constant barrage" of telephone calls from L.A. between September, 1996 and February, 1997 and that ultimately they had stopped answering the telephone. In February, 1997, they obtained an unlisted telephone number.

[45] He and his wife hope to adopt B.M. at some point in the future and, in anticipation of this, they have taken a course administered by the Ministry. They had spent eight hours each Saturday for a period of five weeks to complete the course. They had also "gone through the preliminary adoption forms" with the adoption agency in their community.

[46] He and his wife had previously been in favour of an "open" adoption where the natural parents would enjoy access to their child following adoption. Now, however, given their experiences with L.A., they were adamantly opposed and would not adopt B.M. if the court granted L.A. access to him.

[47] In his opinion, L.A. would have a damaging influence on B.M. and if she were granted access, he feared that all the progress he and his wife had achieved with B.M. would be undone.

The sections of the Act relevant to this proceeding, and in force when it took place, read as follows:

54.(1) With the permission of the court, a party to a proceeding in which a continuing custody order was made may apply to the court for cancellation of the order if the circumstances that caused the court to make the order have changed significantly.

54.(4) After considering the importance of continuity in the child's care and the effect of maintaining a relationship the child has with any person, the court may cancel the continuing custody order, but only if it is satisfied that

(a) the circumstances that caused the court to make the order have changed significantly, and

(b) cancelling the order is in the child's best interests.

56. (1) After a continuing custody order is made, a parent or any other person may apply to the court for access to the child.

56. (3) The court may order that the applicant be given access to the child if access

(a) is in the child's best interests,

(b) is consistent with the plan of care, and

(c) is consistent with the wishes of the child, if 12 years or over.

[48] In reaching my decision on the applications before the court, I have considered carefully the evidence given at the hearing, the written submissions of counsel and the case law each of them presented.

[49] For the reasons which follow, I have concluded that the application of L.A. to cancel the continuing custody order of August 21, 1998 must be dismissed. I should say, at the outset, that I disagree with the view expressed in S.W. v. Director of Child, Family and Community Service [2001] B.C.J. No. 480, that s. 54 does not apply to continuing custody orders made by consent pursuant to s. 60 of the Act. In my respectful opinion a continuing custody order cannot be granted, even by consent, unless the court is satisfied that circumstances justifying the order exist. It cannot reasonably be suggested that a court would grant the order simply because the parent(s) or other interested parties consented to it being granted. That being so, it is not the parent's consent per se that constitutes the circumstances justifying the order and which must be significantly changed in order for the continuing custody order to be cancelled. That is merely one factor which the court must consider. What has caused the parent to change his or her mind? The more important questions to be answered are: what circumstances existed at the time the order was made to convince both the court and the parent to regard continuing custody as the appropriate remedy and have those circumstances changed significantly since the order was made?

[50] Prior to the order being made in August, 1998, I heard evidence from a number of witnesses over the course of three days. When L.A. indicated, through counsel, that she wished to consent to the application brought by the Director, I was satisfied, on the basis of the evidence before me that circumstances justifying the granting of a continuing custody order existed. It was beyond dispute, in my view, that L.A. was not capable of providing for her son's needs, that, in many ways, she was as much in need of assistance as her child. I therefore acceded to the request of the parties for a consent order.

[51] The factors which I must consider are set out in s.54 (4) of the Act (supra.) The first of these is "the importance of continuity in the child's care". B.M. is now close to six years of age and has lived with the W. family for most of his life in what is clearly, on the available evidence, a caring and loving environment. Mr. & Mrs. W. are, essentially, the only parents he has known. It is clear that he is a difficult child in many ways and may suffer from F.A.S. Notwithstanding these difficulties, Mr. & Mrs. W. are planning to adopt him. He has not seen L.A. since the latter half of 1998. In my respectful view, if L.A. were allowed back into his life, the continuity in his care, which I regard as being of paramount importance, would be at the very least disrupted, and perhaps brought to an end. On the evidence before me, I am not satisfied to any degree that L.A. has the ability to care for a child. She still is, in my opinion, a person who must devote all her energies to dealing with her own problems which are now very long-standing and perhaps intractable. It would not be in the child's best interests to have his present, stable and caring, environment jeopardized in this way.

[52] The next factor to be considered is "the effect of maintaining a relationship the child has with any person". While this is expressed somewhat infelicitously, I take it to mean that the court must take into consideration the effect on the child's wellbeing, of maintaining his or her existing relationships with others. On the evidence before me, it cannot reasonably be said that L.A. has an existing relationship since she has not seen B.M. for almost four years, largely at her own choosing. There is, in other words, no relationship between her and B.M. to maintain. The relationship which ought at all costs to be maintained, in my view, is B.M.'s relationship with Mr. & Mrs. W. The positive effects of maintaining this relationship, so far as B.M.'s best interests are concerned, are manifest: it will keep together the only family he has known and will allow him to grow up in a loving and stable environment.

[53] The third factor which must be considered is whether the circumstances which caused the court to make the continuing custody order have changed significantly. After due consideration of the evidence presented at the 1998 hearing and that given in the present hearing, I have concluded that there has not been a significant change in the circumstances which lead to the granting of the continuing custody order in 1998.

[54] First, and most importantly, I find as a fact that the emotional and/or mental problems from which L.A. suffered in 1998, continue to impair her ability to parent a child appropriately. As indicated above, in my opinion, L.A. will need to devote her energies, for the foreseeable future, to dealing with these problems. The history of her dealings with Ministry and the Crisis Line lead me to conclude that she is presently experiencing great difficulty in managing her own life and that it would not be in B.M.'s best interests to have him returned to her care, regardless of the number and nature of social supports the Ministry is able to provide.

[55] In my view, L.A.'s behaviour and testimony lend support for this conclusion. By her own admission she has exhibited significant emotional liability with regard to her desire to parent B.M. She consented to the order in August, 1998, while represented by counsel; she advised the court in February, 1997, that she no longer wished to have access to B.M.; and, over the last four years, has failed to maintain any sort of relationship with her son. This is so, even if she has been treated on occasion, by the social workers with whom she has dealt, in a less-than generous manner.

[56] I acknowledge the steps taken by L.A. since the last hearing to improve herself and her parenting kills. She is to be commended for seeking to deal with her problems. However, in my view, the steps she has taken have not resulted in a significant change in the circumstances which lead to the granting of the August, 1998 continuing custody order.

[57] The application of B.M. to cancel that order is dismissed.

[58] The fundamental test for determining whether a parent or another person ought to be granted access to a child is whether such access as is sought is in the best interests of the child. The term "best interests of a child" is defined in s. 4 (1) of the Act as follows:

4.(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example:

(a) the child's safety;

(b) the child's physical and emotional needs and level of development;

(c) the importance of continuity in the child's care;

(d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;

(e) the child's cultural, racial, linguistic and religious heritage;

(f) the child's views;

(g) the effect on the child if there is a delay in making a decision.

[59] Many of the foregoing factors are those which fell to be considered under s. 54(4) of the Act. I have already expressed my views on those factors and there is no need to repeat them. Suffice to say, that for those reasons, I find that access by L.A. would not, under present circumstances, be in B.M.'s best interests. Additionally, I agree with counsel for the Director that there is a risk that B.M.'s safety might be endangered if L.A. were to be allowed to have access to him. In my view, the term "safety" encompasses both physical and emotional safety and it is the latter which might, in my view, be endangered even if access were to be supervised. L.A.'s appalling record of failing to exercise access would, in my view, be likely to continue and the effects of that on a young child could be devastating. And, finally, at this stage in his young life, given the fact that he has not seen L.A. for almost four years, introducing her into his life would probably be disruptive to him and likely to endanger not only his development but his close and loving relationship with the two people he calls "mom and dad".

[60] For all the foregoing reasons, the application for access is dismissed.