JUDGE CRABTREE CONCLUSION VERBATIM / 487

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