17/09/2015 2015 BCSC 1658 BR. v. K.K. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B. R. V. K. K., 2015 BCSC 1658 Date: 20150915 Docket: 19049 Registry: Terrace Between: B.R. Appellant And K.K. and the Director Under the CFCSA Respondents Before: The Honourable Mr. Justice Punnett On appeal from: An order of the Provincial Court of British Columbia, dated 14 April 2015 v. Terrace Registry 19003). Reasons for Judgment Counsel for the Appellant: W.C. MacGregor Counsel for the Director: S.M. Westwood K.K. Not Appearing Place and Date of Hearing: Terrace, B.C. June 19, 2015 Place and Date of Judgment: Terrace, B.C. September 15, 2015 Introduction On or around January 8, 2014 the Director under the Child, Family, and Community Service Act, R.S.B.C. 1996, c. 46 learned that the appellant, B.R., left her son A.K., then eight years old, alone and supervised between 3:00 pm. and 5:00 pm. after school each weekday. The Director then applied for a presentation hearing and following that hearing in Provincial Court received an interim supervision order for A.K. B.R. appeals from that order pursuant to s. 81(1) of the CFCSA, contending that there was no basis upon which Judge Wright could properly have concluded that A.K. was in need of protection. Background 1/11 17/09/2015 2015 BCSC 1658 BR. v. K.K. Judge Wright summarized the background as follows: The mother and the father of the Children are and (the "Mother" and the "Father" respectively, and collectively as the "Parents"). The Parents are separated, and the Director's Application is with respect to the Mother's care of the Children. Specifically, further to the Form report to the Provincial Court of British Columbia (the "Form filed February 16, 2015, the Director seeks the following supervision order: Terms and Conditions of the Supervision Order: 1) will ensure that and will be under the care and supervision of a responsible adult at all times and not be left alone to care for themselves. 2) will allow the Director direct and private access to and whether scheduled in advance or not, and at any time the Director deems necessary to ensure the safety and well-being of the children. 3) Failure to comply with the aforementioned terms of the Supervision Order must result in removal of the children. Although it was not covered in any detail, from the evidence I heard at the presentation hearing, my understanding is that the primary residence of the Children, at least during the school week, is with the Mother. The Mother opposes the supervision order sought; the Father supports the Director. The Director raised no issue with respect to other child, Q.K., then four years old, as Q.K. remained in care while B.R. was at work. There is no basis to believe that B.R. left Q.K. alone at any point. As noted, however, A.K. left school each week day around 3:00 pm, went home, and remained there alone without supervision until his mother returned around 5:00 pm. A social worker became aware of after school situation and attended at the home while B.R. was present. She informed BR. that a child under the age of ten could not be left alone. She requested that B.R. agree to a ?safety plan.? When the appellant declined, the social worker then asked to speak to AK. B.R. refused to allow her to do so. As a result, the social worker filed a ?Form Report to the provincial court, and the Director brought an application for a supervision order pursuant to s. 29.1 of the CFCSA. That order stipulated that the Director would supervise care for a period of six months. The social worker gave evidence at the presentation hearing, testifying that, in her opinion ?children who are eight years of age do not have the cognitive ability to be left unsupervised,? citing various risks, including accidental poisoning or fires, which could arise ?regardless of level of maturity.? She did not agree that some children eight or nine years? of age would be capable of staying alone. On the strength of that evidence, the trial judge accepted that children under the age of ten could not be safely left alone, therefore establishing that there were reasonable grounds to believe that A.K. required protection, and that such protection could be effected by a supervision order. 2/11 17/09/2015 2015 BCSC 1658 BR. v. K.K. Position of the Appellant The appellant says this is a test case. The appellant alleges that the trial judge erred in giving any weight to the social worker?s evidence that a child under the age of ten cannot be safely left unsupervised. She further alleges that the social worker usurped the function of the legislature in concluding that A.K. was in need of protection solely due to his age and lack of after school supervision, given that no minimum age for leaving a child alone for a short period is prescribed by statute. The appellant also contends that the social worker?s evidence was expert opinion and was improperly admitted. The appellant submits that children mature at different rates and therefore individual investigation and assessment of the child and the child?s circumstances is required before the Director can take action. Position of the Director The Director takes the position that the trial judge did not err in concluding that the test under 29.1 and 332(2) of the CFCSA was made out. The Director says that the evidence of the social worker was admissible, and that the social worker did not usurp the function of the legislature. The Director also submits that the guiding principles of the CFCSA apply, referring specifically to 55. 2-4: 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: children are entitled to be protected from abuse, neglect and harm or threat of harm; a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; the child's views should be taken into account when decisions relating to a child are made; kinship ties and a child's attachment to the extended family should be preserved if possible; the cultural identity of aboriginal children should be preserved; decisions relating to children should be made and implemented in a timely manner. Service delivery principles 3 The following principles apply to the provision of services under this Act: families and children should be informed of the services available to 3/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. them and encouraged to participate in decisions that affect them; aboriginal people should be involved in the planning and delivery of services to aboriginal families and their children; (0) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; services should be integrated, wherever possible and appropriate, with services provided by government ministries, community agencies and Community Living British Columbia established under the Community Living Authority Act; the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children. Best interests of child 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: the child's safety; the child's physical and emotional needs and level of development; the importance of continuity in the child's care; the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; the child's cultural, racial, linguistic and religious heritage; the child's views; (9) the effect on the child if there is delay in making a decision. (2) If the child is an aboriginal child, the importance of preserving the child's cultural identity must be considered in determining the child's best interests. [10] The Director further submits that had the social worker been allowed to interview the child, the Director might have been satisfied the child was not at risk. [11] The Director notes that the proceeding before the trial judge was a presentation hearing, not a protection hearing, and that the Director is only required at a presentation hearing to provide admissible evidence which, if believed by the protection hearing judge, could lead to a finding that the child is in need of protection. They note that this form of proceeding is summary in nature and is to be ?concluded as soon as possible.? The Law [12] I consider first the appropriate scope of review. The order appealed from is discretionary and it is clear that this Court lacks independent discretion on appeal. I lackjurisdiction, in other words, to substitute my views for those of the trial judge. As Sigurdson J. wrote in British Columbia (Director of Child, Family and Community Service) v. RE, 1996 CanLll 8528 4/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. (B.C.S.C.): 13 The decision of the Provincial Court judge should not be interfered with in the absence of some material error. The function of this court on appeal is to review the Provincial Court judge's decision to determine if, in her exercise of discretion, she erred in law or disregarded or overlooked some relevant matter; or failed to act judicially [13] Similar statements of this Court?s jurisdiction in the appellate context can be found in Stewart v. B. C. (Director of Child, Family and Community Service), 2006 BCSC 133 at para. 19, and M. G. v. Director of Family and Child Services, 2007 BCSC 461 at paras. 6-7. [14] Turning to the nature of presentation hearings, as the Director points out such proceedings are summary in nature, being the first component of a two-stage protection hearing. The Court of Appeal described this two-stage procedure in 3.3. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46: [12] There are two stages to a protection proceeding: the presentation hearing 35) and the protection hearing (ss. 37-40). [13] The presentation hearing, designed to ensure that a child is not arbitrarily taken into care, is to be begun "no later than 7 days after the day a child is removed" to be "summary" and "concluded as soon as possible" 33.3). For that hearing, the Director is required to provide a written report that includes the circumstances causing the removal of the child, an interim plan of care for the child, and information about any less disruptive measures he considered before removing the child. The focus of the hearing is on providing appropriate care arrangements for the child until a protection hearing can take place. Both the Director and the parents may call viva voce evidence, but it must be brief [15] I note as well that the CFCSA sets out the evidentiary burden borne by the Director at a presentation hearing in the following terms: Presentation hearing about application for supervision order 33.2 (1) At a presentation hearing relating to an application under section 29.1 for a supervision order, the director must present to the court a written report that includes the grounds for making the application, and an interim plan of care for the child, including the director's recommendations about the terms and conditions to be included in the supervision order. (2) If satisfied that there are reasonable grounds to support the director's concerns regarding the child, the court must make at the conclusion of the presentation hearing an interim order that the director supervise the child's care. [16] It is clear that at a presentation hearing, the Director need not show, and the Court need not conclude, that the child is actually in need of protection in order for a supervision order to issue under s. 29.1. Rather, the burden on the Director merely requires that there be admissible evidence which, if accepted, could lead to a finding that the child is in need of protection: British Columbia (Director, Child, Family and Community Services) v. J. C., 2014 BCSC 496 at para. 5/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. 21. [17] The Director also refers to British Columbia (Director of Family and Child Services) V. W.H.K., 2003 BCPC 307, where Grannary J. said the following about the treatment of the evidence of social workers at a presentation hearing: [16] Under these circumstances, I am not required, nor is it appropriate that go behind the statements of fact contained in the Report to Court of the social worker. The court must, and the legislation requires, that great deference be given to the social workers who complete these reports. The social workers have a statutory duty to be truthful, to be honest, to be complete and to do their very best. It would be inappropriate on a case-by- case basis to go behind their motives. I must assume the information that have is at least believed by the social worker. Whether or not it ultimately turns out to be true is another matter, but I must at least start from the premise that she believes it and has some basis for believing it. As outlined in the Report to Court, she has detailed, without naming people, why she has included each of the concerns she has about the safety and well-being of these children. The legislation and the case law does not require, nor allow me, to go behind what she is saying. There is a dispute of facts, which is not unusual in cases of this type. At this stage of the summary proceedings, a quick resolution without hearing all witnesses and spending days to determine what is actually the case is necessary. I must assume, where there is a dispute of facts, that the Director is accurate. [18] I turn to the merits of appeal. Opinion Evidence [19] As noted, the appellant contends that the Court below erred by relying on the evidence of the social worker, as she says that this evidence amounts to an expert opinion which the social worker was not qualified to give. As the decision to grant the Director?s application hinged on that evidence, if that evidence is determined to be inadmissible, then it follows that the basis for the supervision order would be undermined. [20] In addition to the social worker?s evidence, the Director also tendered various articles and documents addressing the issue of risks to children under the age of ten and their limited cognitive ability. The Court below found that these documents ?support [the social worker?s] position about the generally accepted consensus? on that point (para. 36). [21] It is my view that, given the nature of a presentation hearing, particularly the need for reliance on the social worker?s evidence and experience, expert evidence is not required. To require such would defeat the summary nature of the application, which is designed to permit timely intervention for the protection of children. The objection of the appellant is more properly addressed at the protection hearing. [22] As Grannary J. pointed out in W.H.K., great deference is owed to the evidence of social workers in the presentation hearing context. It is expected and appropriate that such evidence will detail the social worker?s concerns over the safety or well-being of a child and for the Court 6/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. to rely on said evidence (para. 16). [23] It is clear to me that the evidence of the social worker was not tendered as an expert opinion, nor did it amount to expert evidence. Rather, the social worker testified, based on young age, the social worker?s knowledge of numerous instances in which children under age ten have come to harm because they were left unsupervised, and her professional experience in the child protection sphere, that A.K. faced an unacceptable risk of harm in the circumstances. In other words, she gave evidence as to the facts of her assessment of risk faced by A.K., made in the context of her duties as a social worker. That is consistent with the evidence Grannary J. described in W.H.K. [24] In my opinion, and in view of the summary nature of the presentation hearing, it was appropriate for the Court below to rely on the social worker?s evidence. I find that the trial judge did not err in this regard. [25] BR. also invites me to take judicial notice on this appeal that children mature at different rates, such that some children will be able to be safely left alone at age eight or nine. The appellant says this renders the social worker?s evidence ?inherently unbelievable,? because the social worker espoused an ?absolute rule? for children under the age of ten. [26] decline to give effect to this argument. [27] I am obliged to defer to the findings of fact made by the trial judge absent a palpable and overriding error. The discrepancies argued by B.R. do not approach that standard. Moreover, the jurisprudence obligated the Court below to assume that the Director?s evidence was true in the case of a dispute in the facts (see W.H.K., at para. 16). Further, it would have been open to the Court below, even accepting that different children mature at different rates, to find reasonable grounds 332(2) of the CFCSA) existed for believing, in light of the evidence concerning the cognitive abilities of children his age, and the lack of an opportunity for the social worker to assess whether A.K. possessed exceptional maturity for his age, that A.K. needed protection. [28] now turn to the appellant?s other ground for appeal. Fettering of Discretion [29] The appellant contends that the social worker fettered or usurped the legislature by purporting to impose a minimum age requirement that is not reflected in the CFCSA. B.R. says that it was therefore an error for the trial judge to accept the social worker?s evidence that being left alone after school endangered A.K., as an eight year old. 7/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. [30] Specifically, B.R. takes issue with the following portions of the reasons: [37] I do not accept the argument of the Mother's counsel that the social worker, Ms. Mitton, is usurping the function of the legislature of this province by adopting a policy or practice that children under the age of 10 should not be left unsupervised. While the legislature mav have chosen not to set such an age. in mv view, that does not mean that trained social workers cannot. based on reasoned principles. set such an age limit themselves. Clearly, the social workers will have to provide evidence, as they did in this case, to establish that such a practice is not an arbitrary one but is based upon established scientific and/or medical principles. [38] Therefore, I find the Director has tendered admissible evidence before the court as to the age of the child and the additional evidence about the widely accepted risks to children under the age of 10 due to their limited cognitive ability, and that evidence has satisfied me that there are reasonable grounds to support the Director's concerns. [Emphasis added.] [31] The appellant?s argument may be summarized in the following terms. She takes the position that the absence of a legislated minimum age at which children may be left alone is the result of a deliberate policy decision by the legislature. If such a hard and fast rule were intended by our elected representatives, it would have been enacted, likely under s. 13 of the CFCSA which sets out other circumstances in which a child ?needs protection.? [32] Instead of an inflexible minimum, B.R. contends that the legislators intended to leave the matter to the discretion of social workers, who must, in each individual case, ?inquire into the level of maturity of the particular child and into provisions for remote monitoring and supervision of the child investigation [is] called for before any official action [is] taken.? According to B.R., the actions of the social worker in this case frustrated legislative intent by applying an arbitrary rule respecting children under age ten instead of embarking on an individualized inquiry. She argues that the social worker found that A.K. could not be left alone ?without making any inquiry whatsoever into maturity or the circumstances.? [33] The appellant relies on Fahlman by his guardian ad litem Fiona Gow v. Community Living British Columbia et al, 2007 BCCA 15 [Fahlman], in support of this argument. I note that this decision was not brought to the attention of the trial judge. [34] In Fahlman, the petitioner had applied for benefits under the Community Living Authority Act, S.B.C. 2004, c. 60 Those benefits, administered by the respondent, required that the recipient have a ?developmental disability,? which the CLAA defined as including ?significantly impaired intellectual functioning.? The respondent set out more specific eligibility criteria for benefits in a policy manual, which then defined significantly impaired intellectual functioning as involving an IQ score of 70 or below. This was said to correspond with the definition of that impairment in the DSM-IV, a diagnostic manual for mental disorders. 8/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. [35] The petitioner scored 79 on an IQ test, and the respondent therefore decided that he was not eligible for benefits. The petitioner then applied to the British Columbia Supreme Court for an order quashing that decision, arguing inter alia that the respondent had fettered its discretion by adopting the IQ policy and then refusing to consider other relevant factors. The Court accepted that argument, finding that the respondent had impermissibly limited its discretion by adopting the rigid criterion of a 70 IQ score, which precluded it from considering the actual merits of the petitioner?s case. [36] The Court of Appeal upheld that decision, finding that the respondent had a ?duty to satisfy itself? as to whether the statutory criteria were met which must be exercised ?on the facts of each case,? and not based on arbitrary or rigid criteria (para. 50). Notably, at para. 55, the Court found that in exercising its discretion, the respondent must ?consider fully the facts, circumstances, and merits of each application,? and held that a policy which interferes with that consideration gives rise to a fettering of discretion (para. 55). [37] The Director, for its part, acknowledges that Fahlman may bear on the proceedings at the protection hearing stage. However, the Director takes the position that even if that is so, it is premature to apply its principles at the presentation hearing stage. [38] I accept the Director?s argument. The presentation hearing stage is not the forum where the facts of the case are determined: J. C., at para. 21. It is a summary proceeding in which the Director must merely show reasonable grounds. A full consideration of the facts, circumstances, and merits of each application, as contemplated in Fahlman, would not be possible at a presentation hearing where it is essential that the Director be able to act swiftly in order to ensure that children are protected. Moreover, that fulsome consideration would be inconsistent with the statutorily mandated issues to be determined under ss. 29.1 and 33.2 of the CFCSA. [39] Fahlman is further distinguishable on the basis that it involved entitlement to benefits. The Court of Appeal found that the CLAA constituted benefits-conferring legislation ?that is protective of vulnerable persons in the community,? and considered that any ambiguity in its language should be resolved in favour of the claimant (para. 35). It is clear that the CFCSA is not a benefit-conferring statute in that sense, and in any event, the vulnerable persons protected by s. 29.1 are children. At the presentation hearing stage, the CFCSA must be interpreted in the context of ss. 2-4, which place emphasis on the safety and protection of children, particularly from ?harm or threat of harm.? [40] I do not think that anything can be made of the fact that no minimum age for leaving a child unsupervised has been prescribed under s. 13 of the CFCSA. Nothing in that provision 9/1 1 17/09/2015 2015 BCSC 1658 BR. v. K.K. suggests that it attempts an exhaustive listing of circumstances in which children require protection. The following discussion from the Court of Appeal in B. S. v. Director of Child, Family and Community Services (1998), 160 D.L.R. (4th) 264 at 276 (B.C.C.A.), supports this view: [23] the legislative purpose of the Act is to provide for the protection of every child who needs protection. No child should continue in a state of abuse, neglect, harm or threat of harm while administrators, lawyers and judges argue about which precise lettered compartment of s-s 13(1) the case comes within or indeed, whether it comes with any lettered compartment at all. There is a reason for the paramountcy of the principles set out in s. 2. It is to ensure that the legislative purpose of the Act is not defeated by legal niceties such as those which have troubled the courts in the G. case and in this case. [24] So my conclusion on the interpretation question is that s. 2 of the Act sets out a paramount principle of positive law which confirms the entitlement of a child, as a matter of legislative enactment, to be protected from abuse, neglect, harm or threat of harm. [41] I also note that on the facts of this case, B.R. refused to permit the social worker to speak with AK, and in doing so kept her from undertaking the individual inquiry that the appellant now says should have been done. In my view, the purpose of s. 29.1 of the CFCSA would be defeated if it required an individualized inquiry which a parent could then rebuff at will. While the appellant argues that the social worker could have spoken to others such as the child?s teacher that would not necessarily permit the social worker to assess the maturity of the child. [42] Given the purpose and nature of a presentation hearing, the trial judge relied on the experience of the social worker, the exhibits filed respecting young children and the fact that the only evidence before the Court was that of the Director, in reaching his conclusion that there was admissible evidence sufficient to make a supervision order pending a protection hearing. It is at the protection hearing that the issue of leaving the child unattended for an extended period is to be addressed. This was recognized by the trial judge where he stated: Well, maybe the Director?s going to call an expert at the protection hearing Who will give some evidence about children under the age of 10 And can confirm the evidence of Ms. Mitton about the risk of-to such children. [43] Accordingly, I am not satisfied that the trial judge erred in fact or in law. Conclusion [44] The appellant suggested during argument that in the event determined that the appeal is premature, then this hearing should be adjourned so that it can proceed after the protection hearing. However, in my view I must address the appeal on the record before me. If and when the protection hearing proceeds and the appellant wishes to appeal the result of that hearing, a separate appeal on the record of that hearing is the appropriate way in which to proceed. [45] As a result, the appeal is dismissed. 10/11 17/09/2015 2015 8080 1658 BR. v. K.K. ?Punnett 1 1/1 1