Monday, March 28, 2011


This entire post is the verbatim content of the concluding portion of Judge Thomas Crabtree's Ruling on the Bayne Case, which he released March 2, 2011. It is untouched with the exception that names of parents and children have been replaced with abbreviations. My paraphrased version  of the ruling was published on Friday March 25, 2011. This is a public document, the full disclosure of which has not yet appeared on an official site.

"Conclusion -Stage One
[231] In conclusion, I find the injuries suffered by baby By to be unexplained significant injuries which she received while in the care of her parents.
[232] Section 13(1) of the Act provides that children are in need of protection if they are likely to be physically harmed by the parent or physically harmed due to the neglect of the parents. Based on the unexplained injuries suffered by baby By, the Director says there is a risk physical harm will occur in the future.
[233] Generally, the degree of risk required to meet this test is a risk that constitutes a real possibility that the children may suffer harm. In these circumstances, based upon the circumstances surrounding the unexplained injuries to baby By, I conclude that there is such a risk. I am satisfied that there exists a real possibility that the children may suffer physical harm.

Stage Two
[234] As noted earlier, a continuing custody order in favour of the Director is granted pursuant to s. 41 (1 )(d) of the Act on the Court being satisfied pursuant to s. 41 (2)(c) that the nature and extent of the likelihood that the child will suffer harm is such that there is little prospect it would be in the child's best interest to be returned to the parent.

[235] The Court finds the children in need of protection, and the issue to be determined is whether the children should be placed in the continuing care of the Director.
[236] This particular question is governed by s. 41 (1) and (2) of the Act. The Director has applied pursuant to s. 41 (1 )(d) for a continuing custody order. The Court must not make an order under s. 41 (1 )(d) of the Act unless the requirements of s. 41 (2){c) have been satisfied which provides that “the nature and extent of the harm the child has suffered or the likelihood that the child will suffer is such that there is little prospect it would be in the child’s best interests to be returned to the parent.” Section 41 (1) provides a number of alternatives to the granting of a CCO which include: Return the children to the parents under the Director's supervision for 6 months; Place the children in the custody of another person (with that person's consent and under the director's supervision for a specified period of time); The children remain in the custody of the Director for a specified period of time.
[237] In making this determination, the Court must be guided by the children's best interests.
[238] The Director submits that the children be placed in the continuing care of the Director due to the nature and extent of the harm suffered and the length of time this matter has been outstanding. The fact that this matter has been outstanding for in excess of three years is a relevant factor in this case in view of the parents' position that has been maintained since the removal of the children. There has been considerable effort and involvement by many professionals in order to provide the opinions to the Court at great expense to the parties. There has been no evidence from family members and those persons in the community who are prepared to support the family should a temporary order be granted. Finally, there has been no effort by the parents to engage with social workers in a parental assessment or risk assessment which reports could have been beneficial as a planning tool in an effort to seek the return of the children.
[239] The Director says that in light of these factors the extent of the harm suffered is such that there is little prospect that it would be in the children's best interest to be returned to the parents.
[240] The Director further submits the situation will be exacerbated by the arrival of a new child, given the financial pressures that they were previously under when living in Hope.
[241] The parents did not make submissions on this issue. However, this does not preclude the Court from considering the issue and the evidence available at trial relevant to this question.
[242] In September 2007, the family was in a fair degree of stress. Mr. B's health concerns relating to the residual effects of the work related accident continued. The lack of financial resources contributed to this stress as did the fact that the family consisted of two young children and a new infant.
[243] The mother testified as to the current living situation and the efforts undertaken by her and Mr. B to prepare for the return of the children to their home. They have suitable accommodation which is situated in an area closer to family supports than their previous residence in Hope.
[244] There was a move to return the two older children to the parents under a supervision order in May 2008. I appreciate this did not ultimately occur, but the fact that these discussions took place and the arrangement agreed to in principle is recognition by the Director of the parent's ability to address outstanding concerns as they relate to the safety and welfare of the children.
[245] From the outset, the parents have been devoted and dedicated to having as much access to their children as could possibly be arranged. In fact they made several applications in which they continued to press the issue and to obtain more time with the Children than the Ministry was prepared to provide. At times this was cause for strained relations with those in the Ministry who attempted to implement the access schedule.
[246] The access was at all times supervised. This was an impediment to the amount of access and affected the quality of it. They persevered despite the limitations that were by necessity imposed until the trial. In my view, they put their lives and careers on hold to ensure they could maintain as much contact and connection with the children as was possible in the circumstances.
[247] The parents of the mother did not testify, however there is evidence of their support to the family in numerous ways prior to the Director's involvement in October 2007, in caring for the two older children when the Director first became involved and in opening up their residence to the parents for a period of time. This is certainly an indication of extended family prepared to provide assistance to the family.
[248] Similarly the parents of the mother did not testify however there is evidence of their support to the family in numerous ways prior to the Director's involvement in October 2007, in caring for the two older children when the Director first became involved and in opening up their residence to the parents for a period of time. This is certainly an indication of extended family prepared to provide assistance to the family.
[249] A number of letters and related material were filed in the course of the proceeding. A review of the letters reveals that they are dated and written for a different purpose -many were part of a campaign to the Ministry advocating a change in their position. All are supportive of the parents. Some touch on their parental ability.
[250] While the rules permit consideration of such material, the concern is that the authors of the letters were not called. Counsel for the Director notes that the contents of the letters are not sworn and there was no ability to test the information by way of cross examination. This is a significant factor which limits the weight of the letters of support. Having said that, the letters are an indication that friends and acquaintances who, in some capacity and form, have indicated a willingness to support the mother and father. Incidentally I note that in one of the letters that the writer indicated that she had been to the B residence on September 23, 2007 for dinner. This person was not called.
[251] Where the CCO is sought pursuant to the s. 41 (1) of the Act, both the protections issue and the permanent custody issue are addressed at the same time. When proceeding in this fashion there is no opportunity for the parents to reflect on the finding made at the Protection hearing. It leaves no opportunity to consider whether they are prepared to take such action to address the concerns giving rise to the finding at the Protection hearing.
[252] Participating or cooperating in the preparation of a parental capacity assessment may be seen as acknowledgment or an admission. This is something parents are often not prepared to do, based on their belief as to what happened.
[253] In addition, the relationship between the social workers and Mr. and Mrs. B had deteriorated to the point where communication had broken down and the relationship lacks trust. There was a reluctance to deal with them.
[254] There is some basis for this reticence to work with the social workers. The failure of the Ministry to live up to the spirit of the mediation agreement contributed to the belief that the social workers were not there to work toward the reintegration of the family.
[255] The children are now residing together. While the children have been in care there has been significant involvement by the parents in connecting with the children.
[256] As s. 2 of the Act provides, the family is the preferred environment for the care and upbringing of the children, but children are entitled to be protected from abuse and neglect and this must be the overriding concern of the Court. The opportunity is now in the hands of the parents. The children are in need of protection. Now is the time to move beyond this question and to take the appropriate steps to address and remedy the situation to satisfy the Court that the children should be returned to their care and custody.

Conclusion - Stage Two
[257] In the. circumstances of this case I conclude that an order pursuant to s. 41 (1 )(c) for a period of 6 months is warranted.
[258] In the event that further directions are required the matter should be set down before me through the Judicial Case Manager at the Chilliwack Courthouse."

T.J. Crabtree, PCJ


  1. Crabtree sounds like a school counsellor who just talked with the parents and the teachers and is now giving those private recommendations. These parents are certainly not respected, heard or credited in any way that I see. The holes are glaring as has been mentioned by Ray Ferris. This is shameful for a judge of Crabtree's caliber.

    I hear an underlying accusation against them at every level just as though it was the director speaking. He is so affirmed by the judge, I wonder if the MCFD Director sat on his knee as a little boy or if their relationship is only current. In any case, there is little doubt this has been discussed thoroughly elsewhere and this decision was well known before Josiah was taken.

    This sounds like the military or the police summarizing their own internal investigation. " Everyone put their full trust in these people. We have thoroughly investigated the matter, heard the witnesses and found that our members have conducted themselves in the most excellent manner. The public can rest knowing we have done a thorough investigation ourselves."

  2. The financial situation and health concerns mentioned seem to be an attempt to paint a picture of poor and stressed people who abuse their children. Several times there is mention that this family doesn't fit the stereotype of abuse but I guess you just missed it Ron. The clever judge caught the allusions made by the Director!

    The funding available to foster parents wouldn't be forthcoming for parents?

  3. What did I miss Anon 6:47 AM?
    I believe I am clear about what was presented by the Director and how it was processed by the Judge.

  4. The whole case rests on two words:

    Unexplained injuries.

    Only one problem: the injuries have been explained.

    Parents everywhere better affix video cameras to themselves and also film where ever their children are, because if this case isn't overturned on appeal, what it means is that any time a bruise, scrape, bump, broken bone (or what these bogus radiologists say is a broken bone), etc., etc., is seen by the wrong person (and apparently there are many of the wrong people around), that's it, your kids get taken away.

    What I'd like to know is why didn't this heartless judge factor in the risk of foster care? We already know how that affects children.

    One last point. If this country and all its child protectors, lawyers, judges, doctors, counsellors and social workers are so careful about future risk (based on past injuries, history or unexplained injuries)...


  5. ^:47 Just being sarcastic, Ron, because the point he makes is not necessary given that he doesn't believe damages to be from SBS. That was the accusation against the Baynes not something else. Then he reaches into his bag of profiles of abusers and finds that there was some stress in the families lives and follows the reasoning of the director. Now we don't have to have SBS. Makes me think of the parent who punished the wrong kid and says it was too bad but it will do for the time that he should have got reprimanded and was missed

  6. A recent article re: the injustice of the justice system, especially as it relates to MCFD taking your children:

    "..."It's heartbreaking for the parents of children in foster care," said Kamloops family lawyer Brenda Muliner.

    She represents a couple in Nelson fighting to regain custody of their children who were apprehended by child protection workers in 2007.

    It took a year and a half to get a date for trial to decide permanent custody – September 2011 – by which time the kids will have been in government custody for four years.

    "It's staggering," Muliner said. "And it's going to get worse."

    Mary Ellen Turpel-Lafond, B.C.'s Representative for Children and Youth, is also concerned.

    "These delays are really tarnishing the reputation of our justice system for British Columbia's families," she said.

    Child protection workers from the B.C. Ministry of Children and Family Development can knock on a door and remove children from a home based on evidence that is often disputed.

    That power exists, Turpel-Lafond said, on the understanding parents have a speedy right to challenge the removal, with the courts either upholding it and issuing a temporary custody order or else returning wrongfully apprehended children.

    Child protection applications are supposed to be heard within three months.

    But Turpel-Lafond said the average wait in B.C. is more than four months and she's aware of waits of eight months and longer at courts in Surrey, Chilliwack, Abbotsford, Prince George and parts of Vancouver Island..."

  7. Justice delayed = justice denied. And no where is this more true than when they wrongfully taken your children.

  8. If the parents are guilty of something, charge them with a crime. If not, give them their children back.

  9. Anon 9:05 AM
    You must know that your comment "What I'd like to know is why didn't this heartless judge factor in the risk of foster care? We already know how that affects children;" is perhaps relevant to you but it is irrelevant to this ruling or this case, because the judge in today's piece in assessing risk is dealing with evidence presented in court pertaining to this case not stats or incidents beyond or hypothetical.

  10. Ron, regarding the risk inherent in foster care, that issue is directly related to this case, as it is with most if not all MCFD cases, since all these children end up in foster care. Just because the judge didn't consider it, doesn't mean it isn't relevant.

  11. And as we've seen from the evidence in the Baynes case, there has already been problems in their foster care, so the risk is definately there. At least one fall (if I recall right), infection, bruising (which there is a photographic record of), and most recently (unless there is something else we don't know about), the car accident where the premature infant less than? 4 pounds was scurried away from the hospital, to foster care, in order to "protect" him.

  12. Anon 9:11 AM
    I do know that risk attached to foster care is relevant to the children and the birth parents. The Point that I was making is that Crabtree was mandated only to consider material presented to the Court. Foster care risk was not introduced by anyone in court relative to this case, so in that sense alone, it is irrelevant to the way he made his decision.

  13. Wait a second, in paragraph 231, by not stating specifically WHICH injuries supposedly to BETHANY (not the two boys) that occurred while in the parent's care, Mr. Chief Justice Crabtree instantly paints the parents guilty of neglect of ALL children since there is no evidence of deliberate abuse towards ANY of them by NEITHER parent. How generalized can one get?

    In the citation of evidence, the child Bethany was brought to the doctors with what these professionals said repeatedly was insignificant, and on multiple occasions they sent the child home, seemingly oblivious to the increasing severity of her condition and ignoring alarm by the parents. MCFD and the judge seems to confuse parental concern with subterfuge.

    Once a citizen asks for help and the institution fails to provide this help, subsequent consequences due to this lack of due care and attention falls on the institution, no one else. The same argument holds if MCFD allows children to be harmed while they have an open file or if the children are in their care, they are liable for lack of action of something happens during this time.

    The judge said himself the parent's theory of the head on head impact being the only significant event they could think of as originating Bethany's condition was logically discounted. I would agree. My own infant child had a similar condition of going limp, not being responsive, glazed eyes, and the children's hospital could not find a reason. They said 'it happens' and the problem did not reoccur. (I later discovered an APB/Alternate Provider Billing MSP record indicating an abuse check on my child no one told me about at the time. Beware of Hospital Emergency!)

    MCFD attended the Baynes home a week AFTER this injury (in response to a supposedly unrelated protection concern originating from the Hoffmans), and they pronounced all three children healthy. Yet, the judge sort of agrees with the parents explanation of leaving the child on the ground was a source of fault and insinuates they are negligent for doing this at least twice.

    The escalation of the untreated condition was entirely the fault of the medical establishment. If they caught the problem early and dealt with it, this 'serious condition' would have been a non-issue. Instead, because of their collective incompetence, they allowed the matter to escalate and THEN it became serious. THEN Doctors, with MCFD cheering them on, started looking towards the parents to attribute blame. The balance of this so-called "risk" rests with the doctors and hospitals, not the parents. Doctors and hospitals are sued for far less than the deplorable 3-4 week delay in treatment the BC Children's Hospital was responsible for.

    Why should the parents bear the onus of 'unexplained injury' when the judge cannot agree with ANY of medical establishment's suggestions for probably cause. By omission, the judge with no medical expertise has not found ANY suggestion by ANY of these experts probable, so he defaults in blaming the matter on the parents. The children and rest of society continues to pay the price tag.

  14. I'd like to see the medical professionals, who were negligent in diagnosing this condition, be held accountable. A lawsuit would be a good place to start.


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