|Chief Justice Thomas Crabtree|
(On Monday: Judge Crabtree's verbatim Conclusion)
Near the end of the 39 page 'reasons' document released March 2, 2011, Judge Crabtree renders his conclusion in two stages.
Today, I am restating for you the conclusion to which Judge Thomas Crabtree arrived. I have taken liberty here to write the Judge's remarks in the third person. Where most appropriate, I have quoted Judge Crabtree's own words.
Stage One is as follows. Judge Crabtree found the child's injuries, sustained while in the care of her parents, to be unexplained. He noted that the Director associates the unexplained injuries with a future risk of physical harm based upon Section 13(1) of the Child, Family and Community Services Act which states that children require attention if they are likely to be physically harmed by the parent or physically harmed due to neglect. And the Judge is satisfied that given the circumstances surrounding the unexplained injuries, a real possibility exists that the child(ren) may suffer physical harm.
Stage Two is more complex. Judge Crabtree indicated that he did find the children were in need of protection. He noted that the Director wanted a Continuing Care Order pursuant to section 41(1)(d) of the CFCSA. The judge's task was to determine whether to grant this, which according to section 41 (2)(c) required him to be satisfied that the predictability of harm is strong enough that he does not believe it is in the child's best interest to be returned to the parent. Judge Crabtree then recited several alternatives to the CCO in the event he is not so satisfied. (1) He could return the children to parents under a Director's supervision for 6 months; or, (2) he could place the children in the custody of another person, again under the director's supervision for a specified time; or, (3) the children could remain in the Director's custody for a specific time. In making his choice, Judge Crabtree would be guided by the children's best interests.
Judge Crabtree noted that the Director, in support of his CCO position had numerous points. (1) the nature and extent of injuries; (2) the 3.5 years that the matter has been outstanding due to the unchanging position of the parents relating to cause; (3) the cost in time and money for both parties; (4) no evidence that family and friends will support the family of a temporary order were granted; (5) no effort by parents to engage with social workers in parental assessment and risk assessment as planning tools in preparation for a return. In addition to these reasons the Director asserted that the arrival of a new child would exacerbate the financial pressures that he believed influenced the events of 2007.
Then Judge Crabtree remarked that even though the parents did not speak to the matter of the new child and the economics, he himself could consider evidence presented in court. He noted that in 2007 the family experienced stress with the father's post work accident health issues and limited finances and a new baby added to the two other children. The mother did mention their current preparations with accommodation suitable for a return of their children and located close to family support. It was noteworthy to Judge Crabtree that although short-lived, the Ministry made arrangements in 2008 to return the two older children to the parents under supervision, and he noted that this demonstrated that the Director had deemed the parents able to address his concerns regarding safety. The judge discerned the devotion and dedication of these parents from the beginning until the present and they have insistently requested more time with their children in spite of the Ministry's reluctance. He remarked that all visits have been supervised and this limited both access and quality yet these parents persevered and in fact put their lives and careers on hold to ensure connection with the children.
Judge Crabtree observed that evidence exists that the mother's parents will be supportive. He cited many letters sent by supporters which spoke to the parents' ability to parent and while these can be considered, it was viewed as a shortcoming that the authors were not sworn and called to testify and therefore are limited in weight. Nonetheless, the judge mentioned that these authors indicated willingness to support. Interestingly he noted that in one of the letters that the writer indicated that she had been to the family residence for dinner on September 23, 2007 (the supposed injury night). This person was not called.
Then Judge Crabtree moves down what is to me an intriguing decision path. He noted that with a CCO that is sought pursuant to the s. 41 (1) of the Act, both protection and permanent custody issues are dealt with simultaneously. The handicap that this presents to the parents is that they have no opportunity to consider the findings pertaining to protection and whether or not they are prepared to address the Director's concerns. Judge Crabtree acknowledged that he understood a parent's reluctance to participate in a parental capacity assessment lest it be perceived as an admission. Further he noted that relationship between the parents and the social workers deteriorated until communication and trust were gone. He even acknowledged that there was some basis for the parents' reticence to work with the social workers because the Ministry had failed to live up to the spirit of the mediation agreement. The Parents genuinely believed that the Ministry was uninterested in reuniting parents and children.
Judge Crabtree then asserted clearly that as section 2 of the Acts states, 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.
Then he made these directional statements. (1) The opportunity is now in the hands of the parents. (2) The children are in need of protection. (3) 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. (Clearly this was as loud a hint as he cared to give to the Baynes that he would be inclined to give their children back to them if in a specified time they will do all that they can to convince the court that it is in the best interests of the children to be returned to their parents because all concerns about risk have been minimized or removed.)
Then, verbatim, his Stage Two Conclusion was this:
“ 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.
 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.”
and he signed his document, "T.J. Crabtree, PCJ"