L. (D.) v. British Columbia (Director of Children and Family)

Citation: D.L. and L.E., and R.L. v. Date: 19990308 (British Columbia) Docket: CA024942; CA024951 Director of Children and Families Registry: Vancouver 1999 BCCA 0145 COURT OF APPEAL FOR BRITISH COLUMBIA IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996, CHAPTER 46 BETWEEN: CA024942 D.L. AND L.E. APPELLANTS (APPELLANTS) AND: THE DIRECTOR OF CHILDREN AND FAMILIES RESPONDENT (RESPONDENT) - AND - BETWEEN: CA024951 R.L. APPELLANT (APPELLANT) AND: THE DIRECTOR OF CHILDREN AND FAMILIES RESPONDENT (RESPONDENT) Before: The Honourable Madam Justice Prowse The Honourable Mr. Justice Finch The Honourable Mr. Justice Mackenzie R.J. Saucier Counsel for the Appellants, D.L. and L.E. D. Weber Harvey Counsel for the Appellant, R.L. G.L.F. Somers, Q.C. Counsel for the Respondent in CA024942 M. Fleming Counsel for the Respondent in CAO24951 Place and Date of Hearing Vancouver, British Columbia February 23, 1999 Place and Date of Judgment Vancouver, British Columbia March 8, 1999 Written Reasons by: The Honourable Madam Justice Prowse Concurred in by: The Honourable Mr. Justice Finch The Honourable Mr. Justice Mackenzie Reasons for Judgment of the Honourable Madam Justice Prowse: [1] There are two appeals before us arising from protection proceedings relating to an infant, "C.". The first is an appeal by D.L. (the "father") and L.E. (the "mother") pursuant to s. 82 of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (the "CFCSA") from an order made by Mr. Justice Spencer on July 17, 1998 dismissing their appeal from the order of a Provincial Court judge made November 18, 1997 placing C. in the continuing care of the Director of Children and Families. [2] The second appeal is by R.L., the mother of D.L. (the "grandmother"), from the same order dismissing her appeal from the order of the Provincial Court judge, which, in turn, dismissed her application for custody of C. [3] The resolution of the issues in this case turned primarily on the findings of fact of the trial judge. Those facts include a finding that either the father or the mother, or both, were responsible for the death of "B.", the natural child of the father, approximately 20 months prior to C.'s birth. [4] The critical findings of fact at trial are set out in the following excerpts from the decision of the Provincial Court judge: I find on the basis of all the evidence that [B.] suffered a number of injuries while in the care of [L.E.] and [D.L.], specifically the fractured clavicle which likely occurred ten to fourteen days prior to his death, and the very severe head injury or injuries which [B.] suffered in the twenty-four to seventy-two hour period prior to his death. Based on this evidence, I can only conclude that [B.] suffered these injuries at the hands of either [D.L.] or [L.E.], or both of them. One or the other of them, or both, know what happened to [B.]. * * * In this case we are dealing with a vulnerable and defenceless infant. [B.] was also a vulnerable and defenceless infant, who died in the care of, and at the hands of [L.E.] and/or [D.L.]. Whichever test is used, either the balance of probabilities, or a higher test considered by Auxier, J., I am satisfied on the basis of the evidence before me, which I find to be overwhelming, that [C.] is in need of protection, pursuant to Section 40(1) of the Act and that there is significant likelihood that she will suffer harm if returned to the care of her parents. * * * I have considered the authorities produced by the parties. In Re Stewart (June 19, 1997) Vancouver Registry Number 95-7544, another decision of Judge Auxier, there were numerous allegations of abuse. The Court found no evidence that the parents accepted any responsibility for what had happened to their children, blaming matters on social workers or foster mothers. Similarly, neither [L.E.] nor [D.L.] accept any responsibility for [B.]'s injuries, and have consistently "blamed" either the coffee table, the fireplace hearth, or latterly, Ms. Hansen [the babysitter], as the cause of [B.]'s injuries. Given the lack of acknowledgment or recognition, I question what, if any, counselling, or services could benefit these parents. Each is of the view that they do not need any counselling. * * * In this case the court cannot be satisfied that the circumstances which led to the terrible injuries which [B.] suffered and his tragic death, could not be again triggered by the normal frustrations required in caring for a young child. [D.L.]'s and [L.E.]'s continued denial of the need for counselling and of acceptance of any responsibility for the injuries and death of [B.] while in their care, do not indicate that these circumstances will change. I find accordingly that the likelihood that [C.] will suffer harm at the hands of [L.E.] and [D.L.] is such that there is little prospect that it would be in her best interests to be returned to them. [Emphasis added] [5] The Provincial Court judge then turned to the grandmother's "back-up" claim for custody of C. in the event the mother and father were denied custody. The critical passages from her evidence in that regard are as follows: I must now consider [the grandmother's] (backup) position for custody. As mentioned, [the grandmother] does not believe that either her son or [L.E.] have harmed or could have harmed young [B.] in any way. She does not accept either the medical evidence that she has heard or the findings of the Coroner's Inquest. She tells the Court that she will protect [C.], even against her son and [L.E.] if necessary. She would have to stand up to two individuals who have, in the past, demonstrated that they are prepared to put their own needs well before those of their daughter and have attempted to avoid the authorities and frustrate the law. I am not suggesting that [the grandmother] herself would act that way, however, given her extreme loyalty to her son, I cannot be assured that she could stand up to him. I do not question her sincerity or commitment to her grandchild. * * * Considering the factors set out in Section 24 of the Family Relations Act with respect to [C.]'s best interests, which essentially reflect those of Section 4 of the CFCSA, I cannot conclude that it is in [C.]'s best interests to be in the custody of [the grandmother]. I find that this would, in effect, be a mechanism for the return of [C.] to the care of her natural parents. [Emphasis added] [6] In their appeal before Mr. Justice Spencer, the parents and the grandmother raised substantially the same grounds of appeal, involving alleged errors of fact and law, as are raised in this Court. They also applied to adduce new evidence similar to that which they are seeking to adduce in this Court; namely, evidence of the steps which have been taken by the parents to obtain counselling since the original order was made. [7] Mr. Justice Spencer admitted the fresh evidence tendered by the appellants. In thorough reasons for judgment, he carefully considered and discussed the grounds of appeal raised before him. In the result, he concluded that the appeal could not succeed. [8] With the exception of one ground of appeal, upon which little turns, I am not persuaded that Mr. Justice Spencer erred in his treatment of the issues before him. The only error he made was in concluding that if a temporary order were made in relation to C., it could only last three months. In fact, there are provisions in the CFCSA for extensions of such temporary orders. In this case, however, the facts found by the trial judge, which were fully supported by the evidence, militated against a temporary care order. The evidence also supported the trial judge's conclusion that it would not be in C.'s best interests to grant custody to the grandmother. This was the conclusion reached by Mr. Justice Spencer. [9] I have reviewed the new evidence tendered on appeal. In my view, given the overwhelming evidence in favour of a continuing care order, this evidence could not affect the disposition of the case made by the trial judge and upheld by Mr. Justice Spencer. For that reason, I would not admit it. [10] In the result, I would dismiss the appeal. "The Honourable Madam Justice Prowse" I AGREE: "The Honourable Mr. Justice Finch" I AGREE: "The Honourable Mr. Justice Mackenzie"