E.H. v. British Columbia (Director of Child, Family and Community Service)

2024 BCSC 234 E.H. v. British Columbia (Director of Child, Family and Community Service) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: E.H. v. British Columbia (Director of Child, Family and Community Service), 2024 BCSC 234 Date: 20240212 Docket: S235494 Registry: Vancouver IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT IN THE MATTER OF THE CHILD, W.H., born 4 NOVEMBER 2021 Between: E.H. and I.L. Appellants And The Director of Child, Family and Community Service for the Province of British Columbia (the "Director") Respondent Before: The Honourable Justice Iyer On appeal from: An order of the Provincial Court of British Columbia, dated July 7, 2023 Reasons for Judgment Counsel for Appellants: R.W. Evans Counsel for Respondent: J. Perhar Place and Date of Hearing: Vancouver, B.C. February 2, 2024 Place and Date of Judgment: Vancouver, B.C. February 12, 2024 [1] This appeal is taken by the parents from the decision of a hearing judge who granted a continuing custody order ("CCO"), permanently removing their child from their care. For the reasons that follow, I dismiss the appeal. BACKGROUND [2] The circumstances giving rise to this case are tragic. WH was born on November 4, 2021. He was the first child of his parents, IL and EH. They live with SH, IL's mother. I will refer to the three adults as the "family." [3] From the time he came home through to December 24, 2021, a midwife and two successive nannies supported the family in caring for WH. After that, WH was in the family's exclusive care. The family took him for his routine 2-month vaccinations on January 5, 2022. On January 6, WH was sleepy and lethargic, a common reaction to such vaccinations. The family did not observe anything unusual when changing his diaper or performing other routine baby care. [4] On the morning of January 7, IL said WH was unusually fussy. He began to flail about with his eyes flickering. She was alarmed and called 911. When the paramedics arrived, they said any seizures had stopped but offered to take WH to the hospital. IL wanted him to be taken in. [5] Upon examination, first at the local hospital and then at BC Children's Hospital, WH was found to have potentially fatal injuries. He had a fractured skull with internal bleeding on both sides of his brain, bleeding in his eyes, adrenal bleeding, multiple fractures of his ribs and ankles, laceration of his liver, significant bruising on his chest, abdomen, genitals and scrotum, and blood pooling at the base of his lungs. [6] The family were shocked and had no explanation of how this could have occurred. From the time of discovery of WH's injuries at the hospital, through their testimony at trial, no family member has provided any insight into how WH was injured. [7] The Director of Child, Family and Community Service ("Director") took WH into care while he was in the hospital. Since his discharge, pursuant to a series of consensual temporary custody orders, WH has remained in the care of a foster family. [8] The family cooperated fully with all of the Director's investigations and completed all recommended programs. The social workers involved with the family report that WH's parents are loving to each other and to their baby. The parents continued to see him during supervised visits, all of which were entirely positive. However, despite all efforts, no one has found any explanation for WH's injuries. [9] The Director sought a CCO on the basis that, without any information about what cause WH's injuries, there was no way to mitigate against the risk of future harm to him. [10] The case was heard in Provincial Court over seven days. On July 7, 2023, the hearing judge granted the CCO ("Decision"). STATUTORY SCHEME [11] The Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [Act], establishes the principles and processes for child protection matters. Section 2 establishes that the safety and well-being of the child are paramount, and are to be considered in light of certain principles. I set out the relevant principles here: 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: (a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (b) 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; (c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (e) kinship ties and a child's attachment to the extended family should be preserved if possible; (g) decisions relating to children should be made and implemented in a timely manner. [12] Section 13(1) defines when a child is in need of protection. In relevant part, it provides: 13 (1) A child needs protection in the following circumstances: (a) if the child has been, or is likely to be, physically harmed by the child's parent; (b) if the child has been, or is likely to be, sexually abused or exploited by the child's parent; (d) if the child has been, or is likely to be, physically harmed because of neglect by the child's parent; [13] A child protection matter can have three stages: the presentation hearing, the protection hearing, and the continuing custody hearing. The Decision concerned the continuing custody hearing. [14] Section 49 governs continuing custody hearings. In relevant part, it provides: 49 (1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order. (4) The court must order that the child be placed in the continuing custody of the director if (a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (b) a parent is unable or unwilling to resume custody of the child. (5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (a) the circumstances that led to the child's removal will improve within a reasonable time, or (b) the parent will be able to meet the child's needs. (6) Before making a continuing custody order under subsection (5), the court must consider (a) the past conduct of the parent towards any child who is or was in the parent's care, (b) the plan of care, and (c) the child's best interests. (7) If the court does not make a continuing custody order, it must make one of the following orders: (a) that the child be returned to the custody of the parent apparently entitled to custody; (b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months. (8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months. [15] Section 4 defines the child's best interests for the purposes of the Act: 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 delay in making a decision. [16] Pursuant to s. 50(1)(a), the effect of a CCO is to make the Director the sole guardian of the child and able to consent to the child's adoption. In that sense, a CCO permanently removes the child from the parents. [17] If the court does not grant a CCO, s. 49(7) provides that it may order that the child be returned to the parents or make a further temporary custody order of up to six months. In addition, under s. 49(8), the court may order the Director to supervise the child's care for up to six months. STANDARD OF REVIEW [18] There is no dispute about the applicable standard of review. On a question of law, it is correctness. On a question of fact or of mixed fact and law where a legal standard is applied to a set of facts, it is palpable and overriding error, applied on a sliding scale with more deference accorded to the extent that the alleged error is more one of fact: Director of Child, Family & Community Service v. A.M., 2007 BCSC 1039 at paras. 23-25, aff'd 2008 BCCA 178. In child custody and child protection matters, an appellate court is especially deferential because of the "polymorphous, fact-based, and highly discretionary nature of such determinations": B.J.T. v. J.D., 2022 SCC 24 at paras. 56 and 58. ISSUES ON APPEAL [19] The appellants say that the hearing judge made two errors of law and an error of mixed fact and law. [20] First, the appellants say that the hearing judge considered that the fact that WH's injuries were unexplained meant that he was required to make a CCO, relying on Supt. of Fam. & Child Service v. G.(C.), 22 R.F.L. (3d) 1, CanLII 1989 BCCA 2967 (C.A.) [G.(C.)] . The appellants say this was an error of law because G.(C.) was about a temporary custody order at a protection hearing, which involves a different analysis than that at a continuing custody hearing. Instead, they say the hearing judge should have applied the test set out by the Court of Appeal in British Columbia (Director, Child, Family and Community Services) v. D.M.G., 2007 BCCA 415 [D.M.G.]. [21] Second, the appellants say that the hearing judge erred in law by misapplying the "no significant likelihood" test in s. 49(5) of the Act. They say that, although the hearing judge stated the test correctly, he later reframed it when he said that he could not conclude "there is significant likelihood that the circumstances leading to his injuries will improve in a reasonable period of time." [22] The third issue arises only if the appellants succeed on one of the first two issues. Given my conclusions on the first two issues, it is unnecessary to address the third. ANALYSIS [23] The appellants say that the hearing judge made two errors of law. Although the standard of review on such matters is correctness, I agree with the respondent that the role of the reviewing court is not to parse the judgement below looking for errors, but to read the decision as a whole, asking whether the hearing judge articulated and applied the law correctly. When assessing whether a judge applied the correct legal test, the appellate court must "consider the reasons for judgment as a whole and in their entire context": Northwest Organics, Limited Partnership v. Fandrich, 2019 BCCA 309 at para. 56. The Decision [24] At the outset of the Decision, the hearing judge identified the stark issue before him, which was to decide a continuing custody application in the face of "the near fatal injuries of a two-month-old child while in the care of committed and devoted parents who indicate that they cannot identify the cause of the broad range of injuries their child suffered": at para. 3. [25] The hearing judge referenced the relevant sections of the Act and the governing cases before delving into the evidence, which he assessed in detail. He accepted the evidence from the Director's experts about the nature of WH's injuries and that they were indicative of a single and extremely severe traumatic event: at para. 71. [26] He gave reasons for rejecting the expert evidence tendered by the parents that the baby might have had an abnormally fragile body structure, such that normal handling could produce injuries of this kind. One such reason was that WH had not suffered injuries while in foster care despite normal handling. The appellants do not take issue with this aspect of the Decision. [27] Following his discussion of the evidence, the hearing judge made the following findings of fact at para .127: a) whatever happened to WH occurred when he was in the exclusive care and control of the family; b) the injuries happened in the few days immediately preceding January 7, 2022; c) the injuries were the result of a very significant traumatic event; and d) he could not determine whether the event was intentional, negligent or accidental. [28] In the following paragraphs, the hearing judge wrote: [128] In short, WH sustained significant injuries through a traumatic event in the care of the parents and no satisfactory explanation has been provided to me as to how the injuries were sustained. I cannot properly return WH to his parents when we do not know how such injuries in their care occurred. There is a real possibility such injuries could recur if, as we are, unable to put in place conditions that reduce the risk to an acceptable level, bearing in mind my statutory responsibility to ensure the safety and well-being of WH is the paramount consideration. As noted In G.C., the only conclusion open to me is that the safety and well-being of WH requires that I make the order that WH be placed in the continuing care of the Director. [129] I am not able to reach a conclusion other than that, on a balance of probabilities, the injuries WH suffered while in the exclusive care of the parents, establish that he was in need of protection under s. 40(1) at that time and that no explanation has been provided that undercuts my conclusion that he continues in need of protection. [130] As noted earlier, in considering whether to make an order that WH be placed in the continuing custody of the Director, I must first conclude that there is no significant likelihood that the circumstances that led to WH's removal will improve within a reasonable time or that the parents will be able to meet WH's needs. In light of my conclusion that the evidence does not explain how WH suffered the array of serious injuries while he was in the exclusive care of his parents and the grandmother, I cannot with any confidence conclude that there is a significant likelihood that the circumstances leading to his injuries will improve within a reasonable time. Without knowing how the injuries came about in their care, there is not a causal pathway to examine and create precautions and defences to make that pathway less likely to recur. Further, without knowing that pathway, I cannot conclude with any confidence that the parents will be able to meet WH's needs, including the need to be reasonably safe from similar harm. As I am not able to conclude that the parents or the grandmother hurt WH I rely on s. 2 of the Act and the related case law to conclude that WH remains in need of protection. Did the Hearing Judge Err in Law by Applying the Wrong Legal Test? [29] In G.(C.) twin infants suffered unexplained injuries while in their parents' care. A provincial court judge found that the children were not in need of protection within the meaning of s. 13 of the Act, and the county court dismissed an appeal. The Court of Appeal allowed the appeal on the basis that the hearing judge wrongly asked himself whether the parents had abused the twins when he ought to have asked whether, having regard to the twins' safety and well-being, they should remain with their parents or be temporarily placed in the Director's custody: at para. 30. In that context, Hinkson J.A. (as he then was) wrote that, in the absence of a satisfactory explanation of the cause of the injuries, "the only conclusion open to the hearing judge on that evidence was that the safety and wellbeing of the children required that they be placed temporarily in the Director's custody": at para. 31. [30] The appellants say that the Decision's reference to G.(C.) in para. 128 demonstrates that the hearing judge erred by applying the test for a protection order under s. 13, which assesses the likelihood of harm, instead of the test for a CCO under s. 49(5), which assesses the likelihood of significant harm. They say that para. 128 shows that the hearing judge had closed his mind to the "no significant likelihood" test and to the factors set out in s. 49(6), effectively finding that a CCO flowed necessarily from absence of any explanation for the cause of WH's injuries. [31] I would be more inclined to agree with the appellants if the Decision had ended with para. 128. The following two paragraphs make clear that the final sentence of para. 128 does not represent the hearing's judge's conclusion about whether to grant a CCO. [32] There is no question that the hearing judge was required to make a finding that WH was in need of protection before he could turn to s. 49: B.B. v. British Columbia (Director of Child, Family and Community Services), 2005 BCCA 46 [B.B.] at paras. 23-24. Paragraph 129 of the Decision clarifies that, in para. 128, the judge was concluding that WH was in need of protection under s. 13. In para. 130, the hearing judge expressly addresses the test for a CCO set out in s. 49(5). [33] I agree that the hearing judge's return to the question of whether WH remains in need of protection in the last sentence of para. 130 is puzzling. However, the fact that the hearing judge goes on in the following paragraphs to set out the factors he must consider in applying the "no significant likelihood" test in s. 49(5) convinces me that he did not conflate the test in s. 13 with the test in s. 49(5), and did not close his mind to the possibility of granting an order other than a CCO. Despite some semantic missteps, the hearing judge did not conflate the two analyses. [34] Although the absence of any explanation for WH's extremely serious injuries was a key consideration in the hearing judge's reasons for finding that each of the s. 49(6) factors favoured granting the Director's application, that is not an error of law. The hearing judge assessed each factor in light of the evidence before him. [35] It is true that the hearing judge did not refer to D.M.G.. The appellant argues that the hearing judge ought to have applied the test in set out in para. 13 of D.M.G.: The key issue in this case of unexplained injuries is not so much a question of assigning blame, but rather of determining whether or not the child can be satisfactorily protected from future harm. Russell J. below properly identified this as the salient issue in the case. I do not think it is correct to refer to what is at issue as a question of the reversal of the onus of proof. Nor is the key issue the assigning of blame to any particular person. The onus throughout remains on the Director to demonstrate the need for a continuing custody order. The question for determination always is, has it been demonstrated to the required onus that the child in care is likely to suffer harm if returned to the custodial situation from which the child was previously removed? That, I think, is clearly settled law by the decision of this Court in B.S. v. British Columbia (Director of Child, Family and Community Services) (1998), 107 B.C.A.C. 87, 48 B.C.L.R. (3d) 106. [Underline emphasis added; bold emphasis in original.] [36] D.M.G. was an appeal from the granting of a CCO in a case where the causes of serious injuries to an infant were unexplained. However, I note that B.S., the case relied on as having settled the law on this point, was a determination under s. 13 about whether a child was in need of protection, not about a CCO. [37] As I understand it, the appellants submit that the hearing judge applied a lower burden of proof than D.M.G. - and the Act -- require. They say that the hearing judge ought to have asked himself in ordering the CCO whether WH was "likely to suffer harm if returned" and he erred by asking himself whether WH was likely to suffer a future risk of harm. [38] In my view, this misstates the difference between the two analysis. Both s. 13 and s. 49(5) are future-oriented and require the court to predict the likelihood of harm occurring. Both involve an assessment of the risk (or likelihood) of harm. Under s. 13, the court must ask if that harm is "likely" to materialize. Under s. 49(5), the court, having already found that harm is likely to occur, ask whether there is no significant likelihood of improvement (or diminution of that risk) within a reasonable time, having regard to the parents' past conduct, the care plan and the best interests of the child. As the Court of Appeal said in B.B.: [19] The Director may apply for a continuing custody order under s. 49(1) not sooner than 60 days before a temporary custody order expires. If a child's parent is missing and not likely to be found or is unable or unwilling to resume custody the court must make a continuing custody order (s. 49(4)). Otherwise, the court must consider (s. 49(6)) (a) the past conduct of the parent towards any child who is or was in the parent's care, (b) the plan of care, and (c) the child's best interests and conclude pursuant to s. 49(5) that there is no significant likelihood that (a) the circumstances that led to the child's removal will improve within a reasonable time, or (b) the parent will be able to meet the child's needs. [20] If the evidence does not establish one of these criteria, and the court does not make a continuing custody order, s. 49(7) provides the mechanism for bringing a protection proceeding to an end. [39] The hearing judge found that WH was in need of protection at the time of the hearing because he was likely to suffer harm if he was returned to the care of his parents. He also concluded, based on the factors set out in s. 49(6), that there was no significant likelihood of improvement within a reasonable time. [40] Reading the reasons as a whole, I am satisfied that the hearing judge did not treat the absence of any explanation for the cause of WH's injuries as making a CCO a foregone conclusion. Rather, he assessed the likelihood of harm if WH were to be returned based on the specific facts of the case before him. This ground of appeal is dismissed. Second Issue: Did the Hearing Judge Misconstrue "No Significant Likelihood"? [41] The appellants acknowledge that the hearing judge correctly stated the test in s. 49(5) at the outset of para. 130 of the Decision (that is, continuing custody may be ordered if there is no significant likelihood that circumstances will improve or the child's needs will be met). However, they say that the hearing judge materially changed the test in the middle of the paragraph when he wrote: [130] In light of my conclusion that the evidence does not explain how WH suffered the array of serious injuries while he was in the exclusive care of his parents and the grandmother, I cannot with any confidence conclude that there is a significant likelihood that the circumstances leading to his injuries will improve within a reasonable time. [Emphasis added.] [42] The appellants submit: Without knowing the cause of injuries, the trial judge could not say there is a significant likelihood of improvement; however, he also could not say that there is no significant likelihood of improvement. The question here arises: what is the court to do in such a case where there is no clear answer either way? We respectfully submit that the language of the statute requires a finding of no significant likelihood of improvement [43] Elsewhere, they write that, to order a CCO, the statute requires the court to "go beyond not concluding that there is a significant likelihood of improvement but to rule it out completely by concluding there is no significant likelihood of improvement." [44] The appellants raise two interrelated points. First, did the hearing judge shift the burden of proof from the Director to the parents? Second, does s. 49(5) require the court to completely rule out any possibility of improvement within a reasonable time before making a CCO? [45] The Court of Appeal's reasons in B.B. answer both questions. With respect to burden of proof, the Court of Appeal stated: [35] With that understanding of the disposition aspect of a protection proceeding, any discussion of onus or burden of proof is misplaced. This aspect of the proceeding should not begin with a general rule that a party will be unsuccessful unless he or she satisfies a specific burden of proof. The parties, whether the Director, the parents, or an interested third person, all bear the evidentiary burden of demonstrating the most appropriate care plan for a child. Once the Director has established on the balance of probabilities that a child is in need of protection and the court has made that determination, whether on an application under s. 41 or s. 49, the court must assess the evidence before it to determine the appropriate care arrangement within the strictures imposed by the Act. Until a continuing custody order is made, the duty to determine what care arrangement is most appropriate for a child lies with the court, not with the Director or the parents, unless they agree. No general rule should deflect the court's attention from the necessary inquiry into the child's needs and the parents' ability to meet them, with such support as the community is able to provide. As McLachlin J. (as she then was) wrote of an inquiry into the best interests of a child directed by the Divorce Act, so here, the inquiry into the appropriate disposition after a finding a child is in need of protection, "should not be undertaken with a mindset that defaults in favour of a preordained outcome absent persuasion to the contrary": Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 44. [46] While this is arguably different from what the Court of Appeal stated in the passage I have quoted above from D.M.G., read together, both decisions confirm that it would be an error of law to place any burden on the parents. The appellants submit that the hearing judge effectively placed the burden of proof on the parents by finding that their failure to explain WH's injuries justified the CCO. They submit that the hearing judge's reasoning means that CCOs must always be made in cases of unexplained injuries, which they say is an error of law. [47] The discussion of burden of proof and the meaning of "no significant likelihood" in B.B. demonstrate that the hearing judge did not err in law in his interpretation of the "no significant likelihood" test in s. 49(5). Nowhere in the Decision does he say or imply that the parents have any burden of proof. In the penultimate paragraph of the Decision he stated: [134] More to the point, and in summary, the evidence presented by the parents does not overcome that the Director has established on a balance of probability [sic] that WH was in need of protection when taken into care on January 12, 2022 and that he currently remains in need of protection. [48] Turning to the second point, while, in the abstract, it may appear that concluding that there is "no significant likelihood of improvement", is different from concluding that the evidence "fails to establish that there is a significant likelihood of improvement," the Court of Appeal took a different view in B.B.: [36] As for the appellants' alternative submission, that Rounthwaite P.C.J. erred in her application of the s. 49(5) "no significant likelihood" test, I cannot think of any circumstance where a judge hearing an application for a continuing custody order could make a last chance order without also finding there was a significant likelihood that the circumstances leading to the removal would improve or that the parents would be able to meet the child's needs within a reasonable period of time. The wording of s. 49(7) reflects that reality. To delay the inevitable is unlikely ever to be in a child's best interests. If the evidence justified a last chance order, it would inevitably preclude a continuing custody order. [49] A "last chance order" refers to an order under s. 49(7), where the court gives the family a final opportunity over six months, possibly under the Director's supervision (s. 49(8)), to improve the child's circumstances and/or the parent's abilities, failing which a CCO will likely be made. In this passage, I understand the Court of Appeal to be saying that, having found the child in need of protection (on the likelihood of harm test), the court must consider whether or not there is a significant chance of improvement. If the evidence shows that there is, it should make an order under s. 49(7); if there is not, it must make a CCO. [50] That is the analysis the hearing judge undertook in this case. While the absence of any explanation for WH's injuries was a very significant factor in the hearing judge's reasons, so too was the severity of those injuries, the past conduct of the parents, the absence of a financially viable supervision option and WH's best interests. His reasons demonstrate that his conclusion was based on his application of the statute to all the evidence before him. He made no error of law. [51] For these reasons, I dismiss the second ground of appeal. CONCLUSION [52] The appeal is dismissed. "Iyer J."