IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | J.P. v. British Columbia (Children and Family |
| 2015 BCSC 1216 |
Date: 20150714
Docket: S118923
Registry:
Vancouver
Between:
J.P.
and as Litigation Guardian for BT.G., K.G., BN.G., and P.G.
Plaintiffs
And
The
Director of Child, Family and Community Services and Her Majesty the Queen in
Right of the Province of British Columbia
Defendants
And
B.G.
Third
Party
Before:
The Honourable Mr. Justice Walker
Reasons for Judgment
Counsel for the Plaintiffs: | J.J. Hittrich C.R. Heslinga |
Counsel for the Defendant, Her Majesty the Queen in Right | K.L. Johnston L.D. Johnston M.N. Weintraub T. Parbhakar |
The Third Party, B.G.: | appearing in person |
Counsel for Corrine Feenie and Robin Stewart | M.G. Armstrong, Q.C. |
Place and Dates of Trial: | Vancouver, B.C. April 8-12, 15-16, 24-26, 29-30, 2013 May 1-3, 8-10, 21, June 3-4, 6-7, 2013 July 2-5, 8-12, August 26-30, 2013 September 30, 2013 October 1-4, 7-11, 21-25, 28-31, 2013 November 1, 4-8, 21-22, 25-29, 2013 January 6-7, 9-10, 13 February 11, 13-14, 24-28, 2014 April 22-25 & 30, May 1, 5-8, 12-16, June 9, 11-13, 16-20, October 6-10, 17, 20, December 8-10, 2014 March 30, 2015 April 2, 22, 2015 May 19, 22, 2015 July 3, 2015 |
Place and Date of Judgment: | Vancouver, B.C. July 14, 2015 |
Table of Contents
III. OVERVIEW OF THE STATUTORY SCHEME
B. As Evidence
of Standard of Care
IV. NEGLIGENCE: TO WHOM DOES THE DIRECTOR OWE A DUTY OF
CARE?
V. BACKGROUND AND OVERVIEW TO FINDINGS OF FACT AND
DETERMINATION OF THE TORT CLAIMS
1. Mr. Stricklands
Meeting with J.P.
2. Mr. Stricklands
Call to Sergeant Pollard
3. Impact of Mr. Stricklands
Call on the VPD Investigation
4. Impact of
Stricklands Views on Other Members of the Intake Unit
5. Failure to
Assess Information
7. Transfer of
the File to the Family Services Team
8. Summary of
Findings Regarding Sexual Abuse Assessment and Investigation
D. The Breach of
the Standard of Care Claims
VIII. THE PRESENTATION HEARING IN THE PROVINCIAL COURT
IX. THE DIRECTORS ONGOING SUPPORT OF B.G.
A. The Plan to
Return the Children to B.G.
B. Claims
Against Mr. Strickland
XI THE DECISION TO PROVIDE B.G. WITH UNSUPERVISED ACCESS
TO THE CHILDREN
C. Determination
of the Legal Issue
1. Is the CFCSA
a Closed Code that Ousts the Jurisdiction of the Supreme Court of British Columbia?
3. Is the
Province Liable for the Directors Decision to Provide Unsupervised Access?
XII. THE RESTRAINING ORDER OBTAINED BY THE DIRECTOR AND
J.P.S ARREST.
XIII. INTERFERENCE WITH THE ASSESSMENT OF MR. COLBY
XIV. CARE FOR THE CHILDREN WHILE IN THE DIRECTORS CARE
A. Prior to the
Directors Decision to Withdraw from the Apprehension Proceeding
B. The Directors
Decision to Withdraw from the Apprehension Proceedings
C. The
Reintegration Agreement
XV. THE PROVINCES STANDARD OF CARE EXPERT
XVI. THE PROVINCES SUBMISSION CONCERNING J.P.s
CREDIBILITY
XVII. THE CLAIM OF THE YOUNGEST CHILD, P.G.
B. Events
Leading Up to the Retainer of Dr. Hughes Hervè
1. Incident at
Supervised Access Visit in September 2011
2. Other
Sexualized Behaviours and Remarks
(b) P.G.s
Statements to Filomena Perrotta
D. The
Provinces Submission concerning the Evidence of the Foster Parent, Martha
Castro
E. Opportunity
to Commit Sexual Abuse
F. Concluding
Remarks Concerning Sexual Abuse
XIX. THE PLAINTIFFS PLEADINGS
XXI. COSTS FROM THE FIRST TRIAL
I. OVERVIEW
OF THE CASE
[1]
This action concerns the egregious response of the Director of Child Protection
(Director) to reports that the infant plaintiffs had been sexually abused by
their father, the third party, B.G.
[2]
The plaintiffs claims are framed in negligence, breach of fiduciary duty,
and misfeasance in public office (misfeasance). The essence of those claims
is that the Director and her agents failed to assess and investigate the
reports of sexual abuse; wrongly apprehended the children and then misled
judicial authorities during a subsequent apprehension proceeding; and,
permitted B.G. unsupervised access to the children despite a supervised access
order of this Court, with the result that the youngest child was sexually
abused by B.G. The plaintiffs further allege that what gave rise to this
misconduct was an unreasonable and unyielding belief on the part of the
Director, one wholly unsupported by the available information, that J.P. had
mental health issues and was unfit to parent, and that B.G. was the parent best
capable of caring for the children. The standard of proof that applies in this
case is balance of probabilities.
[3]
In this section, which provides an overview of the case and a summary of
my determination, I have included some of my findings of fact. The remainder
are contained throughout subsequent sections of these reasons.
[4]
J.P. is the adult plaintiff and mother of the four infant plaintiffs
born between 2002 and 2008: BT.G., K.G., BN.G., and P.G. B.G. is J.P.s husband
and the father of the children.
[5]
In October 2009, a report was made to the Director that B.G. had been
arrested and removed from the family home for assaulting J.P. and her eldest
daughter, K.G. (who was five years old at that time), and charged with uttering
death threats against J.P.
[6]
Shortly after the incident, J.P. commenced family law proceedings in
Supreme Court seeking orders for divorce and sole guardianship and custody of
the children. On October 22, Master Taylor issued a restraining order
prohibiting B.G. from having any direct or indirect contact with any of the
plaintiffs. The family law action quickly became acrimonious.
[7]
The Director investigated the report concerning K.G. in November 2009. The
investigating social worker, Jeff Tymkow, concluded that K.G. had not been
assaulted by her father. While he determined that the children had witnessed
significant domestic violence, he was of the view that so long as the parents
did not reconcile, the children, who were then in J.P.s care, were not in need
of protection. Mr. Tymkow was told by B.G. that J.P. suffered from ongoing
mental health issues. Without judging the merits of that report, which was
groundless, Mr. Tymkow determined that J.P. did not suffer from any mental
health problems that posed protection concerns for the children.
[8]
In the midst of Crown counsels review of possible charges against B.G.
for assault, Master Taylors restraining order, and the highly divisive family
law action, Mr. Tymkow and his superior, William Strickland, signed a
letter at B.G.s request, purporting to clear B.G. of the allegations of
physical abuse of K.G. The involvement of the Director in the family law action
was contrary to the Directors practice. Both Mr. Tymkow and Mr. Strickland
knew that B.G. planned to use the letter to advance his case in the family law action.
[9]
A copy of the letter was not sent to J.P. She only became aware of it in
early December 2009 when her estranged husband sought to use it against her in
a court application. She immediately confronted Mr. Strickland, who was
the team leader for a unit that investigates and assesses reports of potential
harm to children, and accused him of acting inappropriately. She also voiced
her concern to him that B.G. may have sexually assaulted the youngest child,
P.G., who was approximately one year old at the time.
[10]
Mr. Stricklands response was highly inappropriate. On the one
hand, he apologized to J.P. for having sent the letter and agreed to send a
written retraction. He also led J.P. to believe that the Director, through the
Ministry of Children and Family Development (Ministry) would conduct an
investigation into her report of possible sexual abuse. Yet, on the other hand,
Mr. Strickland telephoned the officer in charge of the Vancouver Police
Departments sexual offences unit to disparage J.P.s motives, mental health,
and the veracity of her concerns that P.G., her younger daughter, had been
sexually abused by her estranged spouse. Mr. Strickland also communicated
similar views to his staff. He did that because he had a closed mind to the
possible merits of the report. Without conducting an assessment of J.P.s
report of her concern that P.G. had been sexually abused by B.G., as required
by the applicable legislation and the standard of care, Mr. Strickland
held the belief that there was no merit to J.P.s report of possible sexual
abuse and instead acted with a closed mind in the belief that she was acting
maliciously towards B.G.
[11]
Mr. Stricklands conduct adversely affected the police
investigation and the views and conduct of social workers who became involved
in the case. As a result, the Director did not assess the report of possible
sexual abuse as required by her governing statute and the standard of care, nor
did she investigate.
[12]
Later, in mid-December 2009, while the VPD investigation concerning
sexual abuse of P.G. was in its early stages, J.P. telephoned the Director to
notify her that the three older children were disclosing that their father had
sexually abused them. She reported their disclosures to the Director, including
Mr. Strickland. She asked the Director for help, which was not forthcoming
even though Mr. Strickland was aware of her reports and request for help.
[13]
Mr. Strickland and other social workers were advised of the
specifics of the childrens disclosures. The children described sexual
touching, including digital touching of genitalia and the anus, oral
copulation, and partial penile penetration by their father. B.G. denied all of
the allegations.
[14]
The Director failed to assess and investigate the report of sexual
abuse of the three older children as well as required by the standard of care.
[15]
Throughout, Mr. Strickland and other social workers involved in the
case disregarded evidence supporting the sexual abuse allegations and failed to
ensure that the Director carried out her own assessment and investigation
independent of the VPD. Before the VPD completed its own investigation and
without any proper assessment let alone investigation of the reports of the
childrens disclosures of sexual abuse having been carried out by the Director,
some of the social workers involved with J.P. and her family formed the view
that the children had not been sexually abused, that the allegations were
malicious and fabricated, that the children had been coached to make their
disclosures, and that J.P. suffered from mental health issues. Others viewed
the allegations advanced by J.P. to be the result of an erroneous but genuinely
held belief. Either way, the Director did not believe J.P.s report that the
children had been sexually abused. The Director viewed J.P.s ongoing efforts
to prove that her children had been sexually abused by their father as evidence
of J.P.s mental instability. The Directors position was that J.P.s
unyielding efforts to prove the sexual abuse was a sign of her inability to
parent the children.
[16]
On December 21, 2009, I issued an order in the family law action
permitting B.G. to have access to his children so long as it was supervised.
That order was issued in the wake of protection concerns arising from the
allegations of sexual and physical abuse (Supervised Access Order).
[17]
The Director apprehended the children from J.P.s care on December 30,
2009 (Apprehension). The Deputy Director had been led to believe by Mr. Strickland
that J.P. was suffering from mental distress or illness so significant that she
was at risk of killing herself or the children or both. Mr. Strickland had
no reasonable basis for that belief and he misled the Deputy Director. There
was no basis for the Apprehension. The children ultimately remained in foster
care for over two and one-half years.
[18]
The Director initiated an apprehension proceeding in the Provincial
Court in early January 2010 (the Apprehension Proceeding). The Director did
not advise the judges who heard various applications in that proceeding of the
allegations of sexual and physical abuse, nor did she disclose the
circumstances in which the Supervised Access Order had been issued. The
Directors report to the Provincial Court, outlining the circumstances leading
up to the Apprehension, contained significant omissions and inaccurate and
misleading factual information. The report was prepared in a manner that was
inconsistent with the Directors legal obligation to make full and frank
disclosure, and it denied the plaintiffs procedural fairness and fundamental
justice.
[19]
Mr. Strickland knew of those errors. His subordinates involved in
preparing drafts of the report to court also knew of some of them and ought to
have known of others. They failed to ensure the truth of the information
provided to the Provincial Court.
[20]
Relying on the accuracy of the information reported by the Director, the
Provincial Court made orders that permitted the Director to provide B.G. access
to the children (including unsupervised access) in the manner and nature that
the Director determined in her discretion was appropriate. In May 2010, the
Director permitted B.G. to have unsupervised access to the children even though
it meant that B.G. was in breach of the Supervised Access Order. The Director
was well aware of that court order. The Director provided unsupervised access
to B.G. over the continued and vehement objections of J.P., who insisted that
by doing so the Director was not only providing B.G. with the opportunity to
continue to sexually abuse his children, but that he would do so.
[21]
By February 2010, nearly all of the social workers involved with the
case had determined that the children should be returned to the care of their
father, and they actively supported B.G.s claim for sole custody.
[22]
Following the Apprehension, the children were placed in the care of
J.P.s sister for a brief period, then with her brother and sister-in-law for
several months, and finally, in June 2010, they were placed with a foster parent
who resided in Maple Ridge, B.C. The Director maintained jurisdiction over the
children pursuant to a temporary custody order issued by the Provincial Court
in the Apprehension Proceeding, beyond the maximum time period allowed by the
governing statute, relying in part on a section of the governing legislation
that she knew or ought to have known was inapplicable in the circumstances. The
children remained in foster care until June 2012.
[23]
On October 8, 2010, an order was made by Master Caldwell, upon the
consent of the Director, J.P., and B.G., that the hearing of the Directors
application, brought in the Apprehension Proceeding, for an extension of the
temporary custody order, was joined with the family law action. In these
reasons I refer to the hearing of the joint proceeding as the First Trial.
The First Trial commenced on October 17, 2011 and took over 90 days to
complete. Evidence and argument concluded in May 2012. For most of the First Trial,
the Director remained steadfast in her position that there was no merit in the
sexual abuse allegations, that sole custody should be given to B.G., and that
J.P. was unfit to parent due to her alleged ongoing significant mental and
emotional instability. The parties advanced for determination on the Directors
extension application the merits of the sexual and physical abuse allegations
as well as those concerning J.P.s alleged lack of capacity to parent. Much of
the First Trial concerned the dispute between J.P. and the Director. B.G. was
self-represented and essentially relied on the Director to advance his cause.
[24]
Until mid-December 2011, the Director continued to deny the veracity of
the sexual abuse allegations. On December 14, 2011, however, during the First
Trial, the Director admitted in a written statement that was handed to the
Court shortly thereafter that it was possible that the children had been
sexually abused by their father. The Director continued, however, to support
B.G.s claim for sole custody and guardianship.
[25]
Suddenly, and following her appointment of new trial counsel, the
Director reversed her position on March 29, 2012, after some 64 days of trial.
She withdrew her protection concerns about J.P. and advised the Court that the
children should be returned to their mother. The trial of the issues between
J.P. and B.G., including the allegations of sexual and physical abuse,
continued and concluded in May 2012. I found that B.G. had sexually and
physically abused his three eldest children and physically abused J.P., and
ordered that sole guardianship and custody go to J.P. I also ordered that B.G.
be denied access to his children. My written reasons for judgment from the
First Trial (Reasons) are indexed at 2012 BCSC 938.
[26]
Acting upon the opinion evidence of psychologist Robert Colby, who was
appointed pursuant to s. 15 of the Family Relations Act, R.S.B.C.
1996, c. 128 (FRA), the children remained in foster care until
June 2012 in order to allow the Director and J.P. time to work up an
appropriate reintegration plan so that the children could be returned to J.P.s
full time care on a gradual basis in order to lessen the impact of further
disruption to their lives including emotional upset.
[27]
This present action was commenced while the First Trial was underway. In
this action, the plaintiffs seek damages for what they allege was intentional
and reckless misconduct of the Director and her agents, which they claim was
motivated by malice and bad faith. The plaintiffs allege that the Director and
her agents acted in breach of the standard of care and in breach of their
fiduciary duty. Their claim is also founded on the tort of misfeasance.
[28]
The conduct of the Director and her agents was very much in issue during
the First Trial. Following the Directors withdrawal of her protection concerns
and her change in position concerning B.G.s claim for custody, the issues
surrounding their conduct, including an allegation of bad faith and the issue
of whether any costs of the First Trial should be paid by the Director to J.P.,
were put over to be determined at the trial of this action.
[29]
In this case, the plaintiffs claim that the Director and her agents
failed in their statutory duties to protect the children from B.G. Their claim
is not limited to the Directors purported failure to assess and investigate
reports of sexual and physical abuse at the outset. The plaintiffs also allege
that on an ongoing basis, the Director and her agent, the Ministry, refused to
heed, let alone assess and investigate, significant information and evidence
demonstrating sexual and physical abuse of the children. They also allege that
the children were wrongfully apprehended from their home. The plaintiffs
maintain that the Director and the Ministry unreasonably persisted in a wholly
unwarranted belief that J.P. was unfit to parent such that they completely
abandoned their statutory obligations, ignored orders of this Court, and failed
to protect the children from further harm. As I have mentioned, not only do the
plaintiffs say that the infant plaintiffs suffered ongoing emotional harm from
being kept from their mother for some two and one-half years, they allege that
B.G. sexually abused the youngest child, P.G., while she was in the Directors
care, when the Director allowed B.G. to have unsupervised access to the
children starting in May 2010 despite the Supervised Access Order.
[30]
For ease of reference, when I refer to the Director and her agents,
including the Ministry, collectively in these reasons, I shall refer to them as
the Director.
[31]
The defendant, Her Majesty the Queen in right of the Province of British
Columbia (Province), is the defendant in this action because it is
responsible in law for the Director and the Ministry. The Director and the
Ministry cannot be sued. The Province denies all liability to the plaintiffs.
The Province asserts that the Director and all of her agents who were involved
with the plaintiffs acted reasonably throughout and properly fulfilled all of
their statutory and common law duties (duties, the Director says, which were
owed to the infant plaintiffs and not J.P.). The Director also says that there
is no factual basis upon which to find misfeasance. It has, in the alternative,
issued third party proceedings against B.G. in the event a finding is made that
he sexually abused his younger daughter while she was in the Directors care
and it is determined that the Province is liable as a result.
[32]
B.G. denies the claim against him in this action. He participated in
part of the trial, testifying as part of the Provinces case, but did not lead
any other evidence to defend the allegations against him. He chose not to
participate in closing argument.
[33]
The Reasons provide important background facts about J.P. and B.G. (and
their dysfunctional relationship), B.G.s sexual and physical abuse of the
three older children, and expert opinion evidence that bears directly on
whether sexual abuse occurred. The Director and the Province previously agreed
that the findings of fact made in the First Trial (except for any that
concerned the conduct of the Director) would be imported into this action along
with any evidence adduced in that trial for which notice was provided by the
plaintiffs to the Province.
[34]
Although the Province confirmed its agreement again both before and
during the present trial, near the close of the plaintiffs case, the Province
sought to resile from that agreement. The Province sought to re-litigate
certain findings of fact that it did not wish to be bound by. Except for very
limited circumstances, where a few findings in the Reasons involved the conduct
of the Director, the plaintiffs objection to the Provinces attempt to
re-litigate findings from the First Trial was sustained. My reasons for
judgment in respect of this issue are indexed at 2013 BCSC 1403. After that
decision was handed down, however, the Province sought over the course of the trial
of this action to overcome certain decisions made by the Director in the First
Trial in respect of her approach to the trial, including her decision to
withdraw all protection concerns about J.P. On several occasions, the Province
sought to tender evidence the effect of which would result in a breach of its
prior agreement contrary to the ruling.
[35]
I have determined that the infant plaintiffs have established the
liability of the Province for negligence and breach of fiduciary duty owed to
them. The plaintiffs, including J.P., have also proven the misfeasance claim. I
have determined that the Director and certain Ministry social workers acted
well outside of their statutory mandate and the duty to protect children. The
nature of their tortious conduct varies depending on the individual. It ranges
from intentional misconduct, bad faith, reckless disregard for their obligation
to protect children, breach of the applicable standard of care to unreasonably
supporting the custodial interests of the childrens father even if it meant he
sexually abused them.
[36]
Fault for the ongoing failure of the Director and her agents to carry
out their obligations to act in the best interests of the children and to
protect them from harm is not attributed solely to a single Ministry employee.
The Director had many opportunities to carry out a proper assessment and
investigation of the reports of sexual abuse and to assess the information and
evidence provided to her on an ongoing basis, including during the Apprehension
Proceeding. Different employees are at fault for different and not necessarily
mutually exclusive reasons depending on the point in time.
[37]
A key feature of the Directors conduct in this case is that she and many
of her agents approached the case in front of them with a closed mind, having
concluded at a very early stage, before the children were interviewed, that
there was no merit to the sexual abuse allegations and that J.P. had fabricated
them and had coached her children to make their disclosures. The Directors
focus turned away from the best interests of the children and on to J.P. As I
previously noted, until the 64th day of the First Trial, the Directors
steadfast position was that the sexual abuse allegations were groundless and
that J.P. was unfit to parent because she was suffering from mental illness or
instability that posed a risk of emotional harm to the children. J.P.s
persistence in her claim that her children had been sexually abused by their
father was held against her by the Director because she thought the manner in
which J.P. continued to act on her belief caused and would continue to cause
emotional harm to the children. The Director supported B.G.s claim for custody
of the children at an early stage in the case, and then unreasonably and aggressively
stuck to that plan until March 29, 2012, to the detriment of the children. In
supporting B.G., the Directors agents also impeded Mr. Colbys s. 15
investigation in the family law action.
[38]
I have also determined that B.G. sexually abused P.G. when the Director
provided him with unsupervised access to his children and that the Province is
responsible in law to pay for any damages suffered as a result.
[39]
The plaintiffs have also proven that the Director failed to properly
provide for the care of the children while in her care and further, after the
children were returned to their mothers care, the Director impeded the
plaintiffs request for funds from another branch of the provincial government
that provides compensation to victims of criminal acts.
[40]
The Director has demonstrated her lack of regard for directions from
this Court and her legal obligation to make full and frank disclosure to the
Provincial Court of British Columbia in apprehension proceedings.
[41]
I have also determined that the Director is liable to pay special costs
of the First Trial to J.P.
II. ISSUES
[42]
The liability issues in this case concern conduct that is alleged to
constitute misfeasance, negligence, and breach of fiduciary duty. Within the
negligence claim is the issue of whether the Director owed a duty of care to
J.P. as a parent. I will discuss the constituent elements of each of those
torts in subsequent sections.
[43]
The plaintiffs and the Province have asked me to determine an issue that
was put over from the First Trial – whether orders made by the Provincial Court
pursuant to the Directors governing statute, the Child, Family and
Community Service Act, R.S.B.C. 1996, c. 46 (CFCSA), supersede
prior orders of this Court concerning children made under other legislation such
as the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.). The position of
the Province is that prior orders of this Court are put into cold storage
once the Directors jurisdiction under the CFCSA is engaged.
[44]
The parties have also asked me to determine whose obligation it is to
pay the costs from the First Trial.
[45]
Thus, in summary, the issues for determination are:
(a) Did
the Director owe a duty of care to J.P. in addition to the infant plaintiffs?
(b) Did
the Director act in breach of any duty of care and fiduciary duty owed?
(c) Have
the plaintiffs proven misfeasance?
(d) Once
the Directors authority is engaged under the CFCSA, what is her
obligation, if any, to abide by pre-existing orders of this Court?
(e) Is the
Province obliged to pay any or all of the costs of the First Trial, and if so,
at what scale?
[46]
Before I turn to my further findings of fact and my determination of the
issues, it is instructive to provide an overview of the statutory scheme
applicable to the Director and her agent, the Ministry, that requires them to
act to protect children.
III. OVERVIEW
OF THE STATUTORY SCHEME
A. Overview of Scheme
[47]
The CFCSA empowers and governs the conduct and obligations of the
Director and her agents, including the Ministry. The CFCSA has been
amended since the factual circumstances giving rise to this action but the
amendments are not meaningful for this action apart from one which I will
mention later.
[48]
The CFCSA mandates that the Director is required to act in the
best interests of children in this province. The primary duty of the Director
is to protect children from physical and emotional harm. Section 2 stipulates
that the CFCSA must be interpreted and administered so that the safety
and well-being of children are the paramount considerations. This section also
sets out the guiding principles by which the statute must be interpreted and
administered:
s. 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;
(d) the
childs views should be taken into account when decisions relating to a child
are made;
(e) kinship
ties and a childs attachment to the extended family should be preserved if
possible;
(g) decisions relating to children
should be made and implemented in a timely manner.
[Emphasis added]
[49]
Section 4 sets out the factors to be considered when considering the
best interests of children:
s. 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 childs best interests, including for example:
(a) the childs safety;
(b) the
childs physical and emotional needs and level of development;
(c) the
importance of continuity in the childs 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
childs cultural, racial, linguistic and religious heritage;
(f) the
childs views;
(g) the effect on the child if
there is delay in making a decision.
[50]
The Directors authority to take action on behalf of children is engaged
when a child is in need of protection. A child is in need of protection where
he or she has been or is likely to be physically harmed or sexually abused.
Emotional harm is treated differently in the CFCSA in that the Director
must act where there is a report of emotional harm, as opposed to a likelihood
of emotional harm, by the parents conduct. Section 13 (1) provides, in part:
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 childs
parent;
(b) if
the child has been, or is likely to be, sexually abused or exploited by the
childs parent;
(c) if
the child has been, or is likely to be, physically harmed, sexually abused or
sexually exploited by another person and if the childs parent is unwilling or
unable to protect the child;
(e) if
the child is emotionally harmed by the parents conduct;
(h) if the childs parent is
unable or unwilling to care for the child and has not made adequate provision
for the childs care.
[Emphasis
added]
[51]
Section 91 of the CFCSA empowers the Minister to designate one or
more persons as directors, with jurisdiction throughout British Columbia, for
any or all purposes contained in the statute. At all times material to this
case, the Assistant Deputy Minister was the person designated to be the
Director to administer the services and to perform the duties under the CFCSA.
In turn, she delegated the responsibility to carry out many of her duties to
Deputy Directors.
[52]
Numerous Ministry offices of field staff located throughout the Province
are delegated to carry out the Directors duties under the CFCSA. They
operate within one institutional framework described in a manual that I
describe in the next paragraph. Although some of the nomenclature and job
duties have changed over the years, the basic hierarchical structure at the
Ministry below Deputy Director includes regional directors, area or community
service managers, policy and quality assurance analysts, team leaders, and
social workers.
[53]
Certain standards have been developed and adopted by the Ministry on
behalf of the Director that are to be adhered to by Ministry employees (e.g.,
social workers) and agents in the performance of their duties under the CFCSA.
Those policies and procedures are contained in several documents. The first is
a manual entitled The Child, Family and Community Services Manual (Manual),
which sets out the obligations of social workers carrying out their duties for
the Director under the CFCSA. The Manual is explicit in its
statement to Ministry employees and agents (including contracted service
providers) that the fundamental nature of the Directors duties and obligations
under the CFCSA is to protect children from harm. The core obligation,
expressed in mandatory language is to ensure the safety, well-being, care, and
protection of children. The Manual is very clear: The child is the
central focus of the CFCSA. Policy reinforces the principle that
children are entitled to have their views taken into consideration and to have
decisions that affect them made and implemented in a timely manner: p. 1.2-4.
[54]
There are also separate documents describing service standards (CFS
Standards) and child in care standards (CIC Standards), which
also govern the conduct of social workers acting as agents for the Director.
They provide the mandatory framework for service delivery and apply to
anyone providing service under the CFCSA, including delegates and
contracted service providers. The two sets of standards are included together
in a singular document entitled Child And Family Development Service
Standards: Child and Family Service Standards, Children in Care Service
Standards (when I refer to the singular document I refer to it as the Standards).
[55]
The purpose of the Standards is said in the introductory section
(section 1) to promote and support a change in child welfare practice in
British Columbia. Noting that there are times where conflicts may occur
between certain requirements in the Standards and what is best for
children and families, the document provides that where exceptions are
necessary, they must be based on the principles of the CFCSA as well as
the needs and circumstances of those served, and that the intent of the
standard always be met: Standards, Introduction at 3.
B. As Evidence of Standard of Care
[56]
I find that the guiding principles and obligations of the Director
mandated in the CFCSA, together with the Manual and Standards,
which essentially mirror those principles and obligations, comprise much,
though not quite all, of the standard of care in this case. I base this
conclusion primarily on the evidence of various Ministry employees and the
Provinces standard of care expert that these documents are evidence of the
standard of care.
[57]
The Province submits that the standard of care, and its breach, must be
established by expert evidence. It further submits that the plaintiffs case is
defective because they did not lead any evidence from an expert, and argues
that it has demonstrated that there was no breach of the standard of care
through its standard of care expert, Ms. Frances Grunberg.
[58]
Although the plaintiffs did not tender a standard of care expert, I am
nevertheless satisfied that they proved the standard of care and its breach.
Firstly, they were able to obtain relevant admissions from Ms. Grunberg in
that regard. Moreover, expert evidence is not required in every case where the
standard of care is in issue. Such evidence is necessary when it assists the
trier of fact where specialized or scientific knowledge is required, such as
cases involving the conduct of professionals: R. v. Mohan, [1994] 2
S.C.R. 9 at 23-24; ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paras. 38,
44; Burbank v. R.T.B., 2007 BCCA 215 at para. 72; leave to
appeal refd [2007] S.C.C.A. No. 316.
[59]
In ter Neuzen, a medical malpractice case, Sopinka J. described
the circumstances when expert evidence is useful or necessary to assist the
trier of fact to determine the standard of care, i.e., where the case involved
difficult or uncertain questions of medical treatment or scientific or highly
technical matters beyond the ordinary experience and understanding of a judge
or jury:
[51]
where a procedure
involves difficult or uncertain questions of medical treatment or complex,
scientific or highly technical matters that are beyond the ordinary experience
and understanding of a judge or jury, it will not be open to find a standard
medical practice negligent. On the other hand, as an exception to the general
rule, if a standard practice fails to adopt obvious and reasonable precautions
which are readily apparent to the ordinary finder of fact, then it is no excuse
for a practitioner to claim that he or she was merely conforming to such a
negligent common practice.
[60]
Absent issues involving specialized knowledge or matters of science,
expert evidence is not usually necessary to prove the standard of care: Burbank
at paras. 56-83. At issue in that case was whether a police officer had
been negligent in her pursuit of another vehicle. Lowry J.A. described the
approach to be taken in negligence cases as follows:
[57] It is first important
to recognize that in a negligence action it is not usually necessary to adduce
evidence, much less expert evidence, to prove the standard of care. It is
generally a matter to be determined by the trier of fact based on common
experience having due regard for what may be taken from any applicable
legislation or policies governing the activity in question; in some instances,
evidence of custom associated with any particular conduct may also be germane.
It is only where the subject matter of the inquiry is beyond the common
understanding of judge and jury that expert evidence may be adduced to assist
the court in determining the appropriate standard of care.
[61]
He repeated at para. 64 the proposition that legislation governing
the impugned activity or conduct may be some evidence of the standard of care.
I have found that to be so for the CFCSA on the facts of this case.
[62]
At para. 59, Lowry J.A. adopted the reasoning from G.H.L. Fridman
in The Law of Torts in Canada, 2d. ed. (Toronto: Carswell, 2002) at 385
that the applicable standard of care should be seen as a question of mixed law
and fact: the standard is to be determined by the trial judge having regard to
what kind of action was reasonable in all the circumstances. Where the conduct
of a professional person is in question, expert evidence, he said, may be, but
is not always, necessary to establish that the conduct conformed to the
standard of care for the particular profession: para. 72. He cited with
approval excerpts from Professor Klars text, Tort Law, 3d ed. (Toronto:
Carswell, 2003) at 297 and Professor Linden (now Linden J.A.) in Canadian
Tort Law, 7th ed. (Markham: Butterworths, 2001) at 120 for the following
principles:
(a)
It is ultimately up to the fact finder to decide whether the standard of
care has been met.
(b)
The manner in which the standard of care is defined and what factors
must be considered by the fact finder in applying it to the facts of each case
are questions of mixed fact and law.
(c)
Whether a defendant has been negligent depends on whether he used common
and ordinary caution in the given circumstances.
(d) The
care to be taken is that of a reasonable and prudent person acting in accord
with general and approved practice. That persons conduct is to be guided by
circumstances which ordinarily regulate the conduct of business affairs
according to a standard adopted in the community by persons of ordinary
intelligence. That conduct is measured by prudence and not by the highest skill.
[63]
In determining the standard of care and whether the Director failed to
meet it, I have also been guided by the following remarks of Lowry J.A. in Burbank
at paras. 61 and 63 regarding conduct that creates an
unreasonable risk of harm:
[61] In assessing whether a defendants conduct created
an unreasonable risk of harm (thereby constituting a breach of the standard of
care), the court balances the danger created by the defendants conduct against
the utility of that conduct. If the hazard outweighs the social value of the
conduct, the court imposes liability. The relevant factors in this value
judgment are the likelihood that harm will culminate, the gravity of the
potential harm of an accident, the purpose of the conduct, and the cost to the
defendant to eliminate the hazard (Allen M. Linden, Canadian Tort Law, 7th
ed. (Markham: Butterworths, 2001) at 120).
[63] Thus, it is for the
trier of fact in each instance to assess the conduct and the consequences in
question in the context of the risk of harm measured against the utility of the
activity to determine the standard of care and whether it has been met.
[64]
I am not persuaded that all of the standard of care issues in this case
involve specialized knowledge or matters of science for which expert evidence
is required to prove the requisite standard of care. The approach taken in Burbank
and other cases is apt: standard of care issues can be determined based on
common experience having due regard for what may be taken from any applicable
legislation or policies governing the conduct in issue. In this case, the
legislation and policies are the CFCSA, the Manual, and the Standards.
Through admissions obtained from defence witnesses the plaintiffs have proven
that the CFCSA, Manual, and Standards are evidence of the
standard of care. To the extent that expert evidence is required, the plaintiffs
have obtained the requisite admissions from the Provinces standard of care
expert, Ms. Grunberg. For reasons that I set out in detail in a subsequent
section of these reasons, I have rejected much of Ms. Grunbergs evidence
supporting the Provinces defence.
[65]
I must add that in assessing whether the standard of care has been met
in this case, I have been mindful that social workers must make difficult
decisions, often in exigent circumstances, decisions that with the benefit of
hindsight could or should have been different. As Donald J.A. observed in B.D.
v. British Columbia (Superintendent of Family and Child Services) (1997),
30 B.C.L.R. (3d) 201 at para. 40:
The theme running through the
important cases in this area is the difficulty facing those who work with
disturbed children. Decisions have to be made about care when the outcome is
unpredictable. It is too easy to say when things turn out badly that it was the
fault of the person who made the judgment. Social workers should not be so
afraid of making a mistake that they cannot do their job properly.
[66]
I am also mindful of the overriding and fundamental obligation of social
workers to act and to make decisions that are in the best interests of children
and to protect them from harm.
IV. NEGLIGENCE: TO WHOM DOES THE DIRECTOR
OWE A DUTY OF CARE?
[67]
To succeed in their claims of negligence against the Director, the
plaintiffs must first prove that the Director owed them a duty of care.
[68]
The Province concedes that the Director owed a duty of care to the four
infant plaintiffs.
[69]
The Province denies, however, that the Director owed a duty of care to
J.P., relying on the Supreme Court of Canadas decision in Syl Apps Secure
Treatment Centre v. B.D., 2007 SCC 38. The plaintiffs counter that Syl
Apps ought to be restricted to its facts and, further, that the test for
the existence of a duty of care as set out in Anns v. Merton London Borough
Council, [1978] A.C. 728 and subsequent authorities supports such a duty on
the part of the Director to J.P. According to that test, a prima facie
duty of care exists where the plaintiff is able to demonstrate the existence of
a close and direct relationship of proximity or neighborhood as well as
foreseeable harm. Once the prima facie duty is established, consideration
is given to whether there are any factors that negate that duty of care: Anns
at 751-752; Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Cooper v.
Hobart, 2001 SCC 79; Harrison v. British Columbia (Children and Family
Development), 2010 BCCA 220 at para. 45, leave to appeal refd, [2010]
S.C.C.A. No. 293; C.D. v. Canada (Attorney General), 2013 BCSC 919
at paras. 17-18, affd 2014 BCCA 180.
[70]
I begin by turning to what the Supreme Court said in Syl Apps.
The plaintiffs in that case were family members of a child apprehended by the
local childrens aid society and ordered by the court to be placed in a
psychiatric treatment facility. They alleged negligent treatment of the child
by the facility and a social worker in its employ (the child was not a party to
the action). As a duty of care had never before been recognized in that
context, the Supreme Court applied the Anns analysis. While reasonable
foreseeability of harm was not disputed, the Court concluded that the analysis
stalled at the proximity stage because of the potential for conflicting duties.
To impose a duty of care in the circumstances, it reasoned, creates a genuine
potential for serious and significant conflict with the service providers
transcendent statutory duty to promote the best interests, protection and
well-being of the children in their care (at para. 41). At para. 50,
the Court said the following:
If a corresponding duty is also
imposed with respect to the parents, service providers will be torn between the
childs interests on the one hand, and parental expectations which may be unrealistic,
unreasonable or unrealizable on the other. This tension creates the potential
for a chilling effect on social workers, who may hesitate to act in pursuit of
the childs best interests for fear that their approach could attract criticism
– and litigation – from the family. They should not have to weigh what is best
for the child on the scale with what would make the family happiest, finding
themselves choosing between aggressive protection of the child and a lawsuit
from the family.
[71]
The Court referred to the fact that the governing child protection
legislation provided a remedy for families seeking to challenge the way their
child was treated as well as several immunity provisions for child protection
workers acting in good faith as lending additional support to the conclusion
that there was no relationship of proximity in the circumstances.
[72]
Although not necessary given the conclusion that there was no prima
facie duty of care owed to the family, the Court went on to note that
policy considerations also militated against the imposition of a duty of care
on service providers towards family members of apprehended children.
Specifically, the possibility of parallel proceedings could lead to a relitigation
of matters determined at the child protection hearing which, in turn, would
undermine the child protection scheme, result in necessary public expense, and
inhibit child protection workers from strategies promoting a childs best
interests for fear of subsequent litigation.
[73]
The Province argues that the holding in Syl Apps is broad in
scope and precludes a duty of care to anyone but children in care, citing also Harrison;
C.D.; C.H.S. v. Alberta (Child, Youth and Family Enhancement Act,
Director), 2010 ABCA 15; D.L.H. v. M.J.M., 2011 BCSC 1228; L.C.
v. Alberta, 2014 ABQB 183; F.R.N. v. Alberta, 2014 ABQB 375; and S.M.
v. Alberta, 2014 ABQB 376. The plaintiffs, on the other hand, point to
other cases restricting the application of Syl Apps to its particular
facts (i.e. the provision of medical treatment to children in the care of the
government agency charged with the child protection responsibility), and not to
a situation involving, for example, a claim for negligent investigation: Durakovic
v. Guzman, 2013 ONSC 958 (Ont. Sup. Ct.); Admassu v. Peekaboo Child Care
Centre, [2008] O.J. No. 3946 (S.C.J.), affd 2009 ONCA 576, leave to
appeal refd, [2009] S.C.C.A. No. 427; McQuaid v. Canada (Royal
Canadian Mounted Police), 2009 PESC 40; K.M.D. v. Childrens Aid Society
of the Region of Peel, [2008] O.J. No. 4772 (Ont. S.C.J.); D.B. v.
Childrens Aid Society of Durham Region (1996), 136 D.L.R. (4th) 297
(O.N.C.A.).
[74]
In Harrison, the Court of Appeal rejected an expansive
interpretation of Syl Apps as advanced by the Province in the present
case. The plaintiff in Harrison was a third party contractor who worked
for a family care facility. He brought an action alleging improper disclosure
of information about him by the Ministry of Children and Family Development
after it disclosed to the facility that it had previously received a complaint
that the plaintiff may have abused his daughter. As a consequence, the
plaintiff lost his employment. The Court found no duty of care between a
Ministry social worker and an employee of a contracted agency where the social
worker was specifically responsible for reviewing the employees background to
identify possible child safety concerns. Recognition of a duty in such
circumstances, the Court held, would create a conflict of duties that could
interfere with the overriding mandate of child protection authorities to
protect the best interests and welfare of the child.
[75]
Family members stand in a different position to third party contractors.
In Harrison, Levine J.A. said, at para. 54, that family members
have a far stronger argument for proximity than individuals in Mr. Harrisons
position, noting that the CFCSA and the equivalent statutory framework
addressed in Syl Apps include obligations that explicitly recognize
the important rights and interests of families of children even those who are
in care post apprehension. She described those rights as essentially
procedural, ones that recognize the interests of families in both the process
and outcome of child protection proceedings. Nonetheless, she described those
rights as incapable of standing alone and insufficient to ground a duty of
care.
[76]
Despite the outcome, the Court of Appeal indicated that it did not entirely
accept the defendants expansive interpretation of Syl Apps that child
protection workers do not owe a duty of care to anyone other than the child in
care. As Levine J.A. explained, at para. 49:
[49] I would not simply
extend the ruling in Syl Apps to any relationship that involves a child
protection worker, thereby disposing of the present action and precluding the
possibility of any duty being recognized other than to the child. Different
relationships will inevitably raise different considerations, and each warrants
a fresh analysis sensitive to those considerations: Hill v.
Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3
S.C.R. 129 at paras. 24, 27.
[77]
The Court of Appeal affirmed this caution in a subsequent decision, C.D.
v. Cunningham, 2014 BCCA 180 at para. 9. Nevertheless, it also
affirmed the lower courts decision striking the plaintiffs claims against the
Director and a number of social workers for negligent investigation on the
grounds that no duty of care was owed to the plaintiff, the mother of children.
As the Court wrote (at para. 12), [T]he Ministry and its employees were
pursuing public law objectives while discharging their responsibilities under
the [CFCSA]. They should not do so under the threat of liability arising
from private law duties said to be owed to anyone other than the children whose
interests they are obliged to protect.
[78]
The Alberta Court of Appeal expressed the same point, albeit in obiter,
in C.H.S.:
[23] We begin our analysis
by noting that the relationship considered by the Supreme Court of Canada in Syl
Apps differs from the one arising in this case. Different
relationships raise different considerations, and each requires an in-depth
proximate analysis that takes into account the factors relevant to that inquiry
(Hamilton-Wentworth at paras. 24, 27). Nonetheless, the
analysis in Syl Apps is relevant, and may be applicable and informative
to the current circumstances.
[79]
I conclude, therefore, that there is, in British Columbia, no blanket
rule that Syl Apps precludes a duty of care owed by the Director to
anyone but children. Whether a duty of care exists in the present case requires
application of the analysis described in Anns and subsequent decisions
such as Kamloops and Hill v. Hamilton-Wentworth Regional Police, 2007
SCC 41, bearing in mind the cautions set out in Syl Apps and cases
decided since such as Harrison, C.D., and C.H.S. The Anns
analysis requires consideration of whether a prima facie duty of care
exists based on consideration of reasonable foreseeability and proximity,
followed by an assessment of whether policy reasons preclude recognition of
that duty.
[80]
The only British Columbia case that I have found where a duty of care
was imposed post-Syl Apps is the decision of Dillon J. in B.M.
(Litigation guardian of) v. R.M., 2009 BCSC 214, affd 2009 BCCA 413. In
that case, the Province took the opposite position than it does in this case
and agreed before the trial judge and the Court of Appeal that a duty of care
was owed to one of the parents in a non-apprehension context: para. 48
(BCSC); para. 3 (CA). Thus, neither court was tasked with deciding the
issue.
[81]
Turning to the analysis for this case, it is important to first identify
J.P.s specific claim against the Director to frame the aspect of the
relationship said to give rise to a duty of care. J.P. alleges that in spite of
her specific request for help after her three eldest children made disclosures
of sexual abuse by their father, the Director failed to provide her with any support
and failed to advise her how to handle the critical and highly sensitive
disclosures.
[82]
In terms of the evidence to support the claim, the plaintiffs point to
the evidence of Ms. Sheila Robinson, who was a Deputy Director at the time
the children were apprehended, and the Provinces standard of care expert, Ms. Grunberg.
Ms. Robinson testified that it is critical to handle such disclosures
properly and to advise parents. Ms. Grunberg admitted that it would have
been helpful for a social worker to have spoken with J.P. to let her know not
to speak with the children about the disclosures, not to ask them any
questions, and to leave it up to the investigating social workers or police.
[83]
In considering whether a duty of care exists in this case, the first
question to be answered is whether the relationship between the Director and
J.P. falls within a settled category that gives rise to a duty of care, because
if it does, then a prima facie duty of care is established: Childs v.
Desormeaux, 2006 SCC 18 at para. 15; R. v. Imperial Tobacco Canada
Ltd., 2011 SCC 42 at para. 37. Clearly, no well settled category
exists in light of Syl Apps and cases decided subsequently. To the contrary,
Syl Apps holds that there is no general duty of care owed by the
Director towards family members: para. 64.
[84]
As a result, the second question to be considered is whether there is a
sufficiently close relationship between the parties to justify imposition of a
duty of care: Kamloops at para. 10. This requires analysis of the proximity
of the parties and the foreseeability of harm: Childs at para. 12;
Imperial Tobacco at para. 41.
[85]
The plaintiffs assert that the relationship between J.P. and the
Director was proximate for the purposes of the Anns analysis insofar as
the narrow issue of providing services to deal with the childrens disclosures
is concerned. I take their overall submission to be that what distinguishes the
present situation from that in Syl Apps, Harrison, and C.D.,
where proximity was not recognized, is the lack of potential for conflict
between the interests of J.P. and those of her children in the narrow context
at issue here.
[86]
The Province disagrees and relies on C.H.S. where the
Alberta Court of Appeal reasoned that the statutory child welfare scheme itself
gave rise to an inherent conflict between the interests of the child and those
of parents and siblings so as to preclude a duty of care. To import a duty of
care, it held, would be unwarranted and undesirable, as the potential for
conflict would place additional undue strain on child welfare authorities and
create unnecessary policy consequences.
[87]
Clearly, providing limited services and advice to J.P. to properly
respond to the childrens disclosures would have been equally, if not
primarily, in the childrens best interests. It is difficult to see how a
limited duty to respond to J.P.s requests in such circumstances could conflict
with the Directors paramount duty to the children. Indeed, Harrison
leaves open the door to the existence of a duty of care on the right facts.
[88]
The CFCSA and the Manual specifically contemplate that the
Director may provide services to a parent as a less disruptive measure to
apprehension: CFCSA, s. 5; Manual, 1.2-11 – 1.2.12.
[89]
The provision of services was described in Catholic Childrens Aid
Society of Toronto v. A.U., 2011 ONCJ 634 as an integral part of
determining whether a risk to a child can be adequately addressed. I find the
following remarks persuasive and applicable to the CFCSA:
[507] The duty to provide services is an integral part of
determining whether or not the risk to a child can be adequately addressed if
that child were to remain with or eventually be returned to her mother. Without
having made efforts to provide such services, and availing parents of every
reasonable opportunity to take advantage of those services, their ability to
benefit from them cannot be addressed.
[508] The Societys obligation
to provide services has a broader component than merely pointing out to a
parent that a particular service exists.
[90]
This reasoning is in keeping with the holding in L.C. v. British
Columbia (Ministry of Children and Families), 2005 BCSC 1668, that there is
a duty to treat parents fairly in the course of investigating reports of risk
of harm to children.
[91]
The plaintiffs also argue that harm to J.P. was foreseeable from the
Directors failure to provide services to J.P. to deal with the childrens
disclosures of sexual abuse in December 2009 in light of her specific request
for help. It was forseeable that without any advice concerning the manner in
which to best deal with the disclosures and what to discuss with the children
(and more importantly, what not to), J.P. would be left to respond in
circumstances where the Director knew she was distraught from the disclosures
of sexual abuse. It was foreseeable that left unguided, J.P., as any parent in
like circumstances, might speak to the children about their disclosures. As it
turned out, J.P. did speak with her children, captured it on audio and videotape,
for all of which she was severely criticized by the Director and the police.
[92]
While I am inclined to the plaintiffs view of the matter, that harm to
the children was forseeable for failing to provide guidance in response to
their mothers request, it is not necessary that I decide whether they have
satisfied the second stage of the Anns analysis since I would find that
the claim fails at the third stage.
[93]
The question to be considered at the third stage is whether there are
any countervailing policy considerations that ought to preclude the imposition
of the duty. It is in this respect that there was an absence of evidence and
submissions from both the plaintiffs and the Province. For instance, I am
mindful of the following caveat raised in the Catholic Childrens Aid
Society that was not addressed:
[509] The Court recognizes
that the Societys requirement to provide services is not an ongoing obligation
to hold the hand of its clients and the Court recognizes that the Society often
operates under budgetary and staffing constraints but when such an obvious and
specific problem exists with a particular client, the Society must provide
individually-appropriate services in order to satisfy its mandate.
[94]
Given that this important third aspect of the analysis was not addressed
in evidence or submissions in any meaningful way, I am unable to find that J.P.
has established that the Director owed her a duty of care.
[95]
Accordingly, in the circumstances, the claim based on a duty of care
owed to J.P. has not been established.
[96]
As a result, and for clarity, when I go on to refer to the plaintiffs
in respect of the negligence and breach of fiduciary duty claims, I refer to
the infant plaintiffs only and not to J.P.
V. BACKGROUND AND OVERVIEW TO FINDINGS
OF FACT AND DETERMINATION OF THE TORT CLAIMS
[97]
In the sections that follow, I set out my findings of fact necessary to
determine the tort claims. I have not referred to each one as a finding in
order to avoid repetitive language. I have chosen instead to state at the
outset that all of the facts I have set out are my findings of fact. In those
instances where I have set out competing submissions from the parties, I have
provided my ultimate finding. I have also set out my determination of the acts
and omissions of the Director and her agents that constitute misfeasance, negligence,
and breach of fiduciary duty, within the appropriate sections.
[98]
It is useful at the outset to describe the structure of the Ministrys
West Broadway office, which was the office initially in charge of the case, and
then to identify the names of the key participants in the events as they
unfolded.
[99]
Reports concerning a child in need of protection are routed from the
Ministrys call-in personnel to an intake team. Reports made outside of normal
working hours are routed to the Ministrys After Hours department. Staff make
notes of the call and then send a report in memo form to the team leader of the
appropriate intake unit to review the next morning. The team leader must review
the information before assigning the file to a social worker to carry out an
assessment. If the social worker assigned to the file determines, following the
assessment, that an investigation is required, then that social worker and
possibly others in that intake team perform the investigation themselves. If
ongoing protection concerns for a child or children exist at the completion of
the investigation, then the case is transferred to the Ministrys family services
team to work with the family in an attempt to resolve the protection concerns.
[100] In this
case, the case file was transferred from the Ministrys West Broadway intake
team to the family services team (located in the same building) after sign
off by the Intake team on February 10, 2010. The file then remained with the family
services team until late spring 2012, after the Director decided to withdraw
her protection concerns about J.P. and to return the children to their mother.
The file was eventually transferred, although not without difficulties, to a
new and independent team at another Ministry office whose staff were not
encumbered with the prolonged history of the case.
[101] All of the
following social workers involved in the case worked out of the Ministrys West
Broadway office at one time or another:
(a) Sheila
Robinson, who held various top managerial positions including Deputy Director.
(b) Terry Lejko, the area
manager.
(c) William Strickland, the team
leader of the intake team (Intake team).
(d) Jeff
Tymkow, the social worker who had day-to-day conduct of the case for the Intake
team until he left for vacation in late December 2009.
(e) Rosalie
Caffrey, another social worker on the Intake team who became involved in the
case when Mr. Tymkow left for vacation.
(f) Bruce
Blandford, the team leader of the family services team (Family Services team).
(g) Xeni Pop,
the social worker on the Family Services team who had day-to-day conduct of the
case until she left for maternity leave on April 1, 2011 and then again when
she returned in 2012.
(h) Susan
Allen, the social worker on the Family Services team who took over day-to-day conduct
of the case from Ms. Pop.
[102] Those
social workers, employed by the Ministry, acted as agents of the Director
throughout. The Province concedes that any fault found on their part is
attributable to the Director for which the Province is liable.
[103] Other key
participants were:
(a) Detective
Gwen Rowley, the officer working in the VPDs sexual offences unit who was in
charge of the sexual assault investigation.
(b) Sergeant
Michael Pollard, who was Detective Rowleys superior.
(c) Dr. Paul
Eirikson, a psychologist retained by the Director to carry out a parental
capacity assessment of B.G. and J.P. in the spring of 2010.
(c) Dr. Sarina
Kot, a psychologist at Childrens Hospital, who carried out assessments on the
children concerning their emotional upset and needs.
(d) L.P.,
who is J.P.s sister and the childrens aunt.
(e) G.P.
and S.P., who are J.P.s brother and sister-in-law, respectively, and
who took placement of the children shortly after the Apprehension until they were
placed with a foster parent in Maple Ridge in July 2010.
(f) Martha
Castro, the foster mother who had the children in her care from approximately
July 2010 to June 2012.
(g) Corrine
Feenie, external counsel for the Director and counsel during much of the
Apprehension Proceeding.
(h) Robin
Stewart, Ms. Feenies law partner.
(i) Charlene
Le Beau, a lawyer working at the Feenie, Stewart law firm in late December 2009
and January 2010.
(j) Robert
Colby, a psychologist and s. 15 FRA expert appointed by the Court in
the family law action on June 2, 2010.
VI. THE DIRECTORS ASSESSMENT AND
INVESTIGATION OF REPORTS OF PHYSICAL
AND SEXUAL ABUSE OF THE CHILDREN
A. Introductory Remarks
[104] The
plaintiffs claim that the Director negligently failed to properly assess and investigate
reports that B.G. was sexually and physically abusing his children. They assert
that from the outset of reports of sexual abuse, the Director acted with a
closed mind and bias towards J.P., and concluded before any proper assessment
and investigation had taken place that J.P. had fabricated the allegations and
coached the children to make those disclosures. They also allege that Mr. Strickland
was responsible for that approach and that he acted in bad faith in tainting
the VPDs investigation and, accordingly, is liable for misfeasance.
[105] The
Provinces response is that the Director acted reasonably and in good faith throughout
to discharge her obligations under the CFCSA and to comply with the
standard of care. The Province urged me to take a cautious approach to
evaluating the conduct of the Director and social workers in what it characterized
were highly charged and difficult circumstances.
[106]
Given that the focus of this section is on the alleged failure of the
Director to properly investigate claims of abuse, I will begin by providing an
overview of the Directors obligations in this regard.
[107] Upon
receiving a report that a child is in need of protection, the Director must assess
the information in the report to determine the appropriate action. The
assessment must be thorough. Following this initial assessment, the Director
may then take one of a number of steps enumerated in s. 16(2) of the CFCSA,
such as offering support services to the childs family, making referrals to
community agencies or conducting an investigation into the childs need for
protection. Any such investigation must be commenced within five days of
completing the assessment, unless the circumstances indicate that the child is
in need of immediate protection: Manual, 3.4-10.
[108] Timeliness
is critical and is to be viewed from the childs perspective. The Manual
states at 1.3-6 that: It is the childs sense of time which the director
considers. Delay and a loss of a childs feeling of permanence cause
uncertainty and confusion.
[109] The
purpose of an investigation is to determine whether the child needs protection.
During the investigation, the Director gives paramount consideration to the
childs safety and well-being, and assesses the following: (a) the childs
current state of health; (b) the childs sense of safety and views; (c)
previous abuse, neglect or harm to the child; (d) the likelihood of harm to the
child; and (e) the parents ability and willingness to care for and protect the
child: Manual, 3.4-9. In conducting the investigation, the Director
seeks and involves the child, the childs parents, other family members and family
friends, and other community members who may have been involved with the child
and family or could assist in conducting the investigation including health
care providers, teachers, day care providers, caregivers and the police: Manual,
3.4-10.
[110] Wherever
possible, the Director must complete the investigation within 30 days: Manual,
3.4-15. The Director concludes the investigation when she determines either
that the child does not require protection or that the child does require
protection and futher steps are necessary to that end: Manual. 3.4-15.
[111] The
Director must make all reasonable efforts to report the results of the
investigation to the person who made the report as well as the parent entitled
to custody: Manual, 3.4-14.
[112]
B.S. v. British Columbia (Director of Child, Family and Community
Services (1998), 160 D.L.R. (4th) 264 (B.C.C.A.), a decision of
a five panel bench of the Court of Appeal, is the leading case in this province
concerning the standard to be applied to risk assessments carried out by social
workers on behalf of the Director. Lambert J.A. described the risk assessment
as variable depending on the nature of the risk. He determined that the
Director has a duty to protect children from future risk of harm that may,
depending on the circumstances, be as low as 10%. Risk of harm is analyzed in
context. For example, the risk of harm from sexual abuse, which is one of the
most pernicious forms of harm a child may suffer, does not need to be as
probable as, say, the risk of harm through neglect of hygiene:
A threat of harm through neglect
of the childs hygiene might well have to be much more probable in order to
meet the balance of probability test than the threat of serious permanent
injury through physical or sexual abuse.
B. Law: Standard of Care
[113] The case
authorities are clear that different standards of care apply before and after
the apprehension of children.
[114]
Prior to an apprehension, the standard of care applicable to the
Director and social workers acting as her agents is that of a reasonable social
worker in like circumstances: B.M. (Guardian ad litem of) v. R.M., 2009
BCCA 413 at para. 55. The Court was clear that the test should be flexible
and tailored to reflect the realities of the particular case. The standard is
not one of perfection and it is not breached where the social worker exercises
his or her discretion within the bounds of reasonableness, even where the
reviewing court views the social workers conduct to not be optimal. At para. 51,
Saunders J.A. said:
[51] In D.H. I approached Hill and the issue of
standard of care of a probation officer in these words, referred to by the
judge:
[67] In Hill, the Supreme Court of Canada found the
appropriate standard to impose in relation to the tort of negligent
investigation by a police officer was that of a reasonable police officer in
similar circumstances. In this case, I consider that the appropriate standard
is that of the reasonable probation officer in similar circumstances. The
considerations that supported the standard for a police officer in Hill
support this standard: it is flexible and may be tailored to reflect the
realities of the case, it is parallel to the standards applied in other
negligence cases and in particular to cases concerning the negligence of
professionals, and it fits easily with the common law factors usually
considered in determining the content of the standard of care such as the
likelihood of harm, the gravity of the potential harm, external indicators of
reasonable conduct, statutory standards and the burden incurred to prevent the
injury.
[68] In considering the standard of care, the degree of
discretion and the policy reason for the discretion is significant. The
reasoning in Hill on this issue is apt to the role of the probation
officer:
[73] … This standard [the
reasonable police officer in similar circumstances] should be applied in a
manner that gives recognition to the discretion inherent in police
investigation. Like other professionals, police officers are entitled to
exercise their discretion as they see fit, provided that they stay within the
bounds of reasonableness. The standard of care is not breached because a police
officer exercises his or her discretion in a manner other than that deemed
optimal by the reviewing court. A number of choices may be open to a police
officer investigating a crime, all of which may fall within the range of
reasonableness. So long as discretion is exercised within this range, the
standard of care is not breached. The standard is not perfection, or even the
optimum, judged from the vantage of hindsight. It is that of a reasonable
officer, judged in the circumstances prevailing at the time the decision was
made circumstances that may include urgency and deficiencies of
information. . . . The law distinguishes between unreasonable mistakes
breaching the standard of care and mere errors in judgment which any
reasonable professional might have made and therefore, which do not breach the
standard of care …
[Emphasis
in original.]
[115]
The standard of care that applies post-apprehension is different.
According to K.L.B. v. British Columbia, 2003 SCC 51, the leading
decision on the post-apprehension standard of care, it is that of a careful
parent. In that decision, McLachlin C.J. stated that public officials mandated
by statute to protect children must make decisions for them that are in their
best interests and went on to describe the standard of care to be the careful
parent test, which imposes a heightened degree of attentiveness:
14
In the case of those
exercising a form of control over a child comparable to that of a parent,
however, the law imposes a heightened degree of attentiveness. The careful
parent test imposes the standard of a prudent parent solicitous for the
welfare for his or her child.
[116] Slightly
different words have been used in cases decided in this province, although they
are to the same effect. In C.H. v. British Columbia, 2004 BCCA 385, the
plaintiff was sexually assaulted by her father after the Director allowed her
to be placed with him and then withdrew from care. In reasons delivered prior
to K.L.B., the trial judge had applied a special diligence standard in
relation to the Directors duty to children in care. On appeal,
Rowles J.A. held that the standard used by the trial judge did not differ
in substance from the standard described by the Supreme Court of Canada in K.L.B.
[117] Other
decisions applying the special diligence standard include Boyd v. British Columbia,
2001 BCSC 667 and Brooks v. British Columbia, 2000 BCSC 735. In this
latter decision Levine J. (as she then was) rejected the Crowns submission
that the standard applied only to placement and not to other duties owed by the
Director and its agents. The standard also applies, she said, to their duties
to conduct investigations into sexual abuse allegations and to provide support
to families of children in the Directors care.
C. Physical Abuse
[118] The
plaintiffs also claim that the Director negligently handled her investigation
into reports of physical abuse involving the children in that key information
about the family was never recorded in the Ministrys computer database known
as MIS; important investigative steps were not carried out; and, a letter dated
November 23, 2009, was prepared for B.G.s use in the family law action that
made a safety conclusion without consideration of all of the relevant
circumstances. I will review some of the facts relevant to this claim since I
am persuaded there is merit only to that part of the claim concerning the
letter prepared for B.G. and the Directors failure to consider reports of
B.G.s use of steroids, inappropriate displays of temper, and physical violence.
[119] The family
first came to the attention of the Director in June 2009 and again in late
September 2009 as a result of reports of violence in the home. No action was
taken on either occasion. From this involvement with the family, the Director was
aware of reports that B.G. had told his eldest daughter that he was so mad at
J.P. that he could kill her, prior allegations that he had assaulted J.P.,
and information from a friend of B.G.s that he was being pushed to the
[b]rink that he will do something violent
he is completely breaking down. The
Director was also told that B.G. was taking anti-depressant medication.
[120] This part
of the plaintiffs claim in this case concerns a third intake in relation to
the family which was opened when the Director was advised on October 5, 2009, that
B.G. had been arrested for uttering death threats against J.P. and for
assaulting her and the eldest daughter K.G., and that he had been removed from
the family home on the same day. B.G. was also charged with uttering death
threats against his wife. The Director was later notified of two restraining
orders issued against B.G.: one issued by Master Taylor in this Court on
October 22, 2009, preventing B.G. from any direct or indirect contact with J.P.
and the children; the other restraining order was issued by the Provincial
Court pursuant to the Criminal Code, R.S.C. 1985, c. C-46. The
Director knew of the ongoing criminal investigation arising from B.G.s arrest
and that criminal charges were being considered by the Crown.
[121] Intake 3
records J.P.s report to the VPD that B.G. had assaulted her, had made threats
to hurt her some more, had made threats to harm the smallest child, and had
been hurting the children over the past week or so, and that B.G. had been
arrested and taken to jail.
[122] These
reports engaged s. 13 of the CFCSA such that the Director was obliged
to assess the information. The Manual (3.1-7) instructs that in
assessing a report of physical harm, the Director must consider both past harm
and the likelihood of future harm having regard to factors such as the extent
of the physical injury, whether the parents explanation for the injury is
credible and consistent with the harm suffered, the childs views about
physical safety in the home, whether the parent is willing to control or modify
potentially harmful conduct, and whether the child has been exposed to
incidents of violence or abuse between other family members in the home.
[123] Intake 3
was coded for investigation, and although it was opened on October 5, the team
leader, Mr. Strickland, assigned Mr. Tymkow, a junior social worker,
to the case on October 20, 2009. Mr. Tymkow conducted a home visit on
November 10. The intake was left open and not closed until February 10, 2010.
[124] During the
home visit, two of the children told Mr. Tymkow about physical abuse in
the household between B.G. and J.P. Based on certain comments that K.G. made to
him during the visit, coupled with J.P.s advice that she had not actually
witnessed the incident between B.G. and K.G., Mr. Tymkow concluded that
K.G. had not been physically assaulted by her father.
[125] Mr. Tymkow
then met with B.G. on November 12 to obtain his version of events. B.G. said that
all of the allegations were false and accused J.P. of suffering from mental
health issues. B.G. continued to press his complaints about J.P.s mental
illness to the Director, advising them that she was clinically paranoid.
[126] Mr. Tymkow
was also made aware that B.G. used steriods and engaged in inappropriate
displays of temper; those allegations were confirmed to him by J.P.s father.
[127] Mr. Tymkow
made note of but did not judge the merits of B.G.s allegations regarding J.P.s
mental health issues. He did, however, conclude that J.P.s mental health
appears to be stable and that she did not pose any safety or protection
concerns for the children while in her care.
[128]
Mr. Tymkow ultimately concluded that the children had witnessed
considerable physical violence in the home between the parents but that they
were safe with J.P. in light of what he referred to as the no go no contact
restraining order (which he thought was the order made in the criminal
proceedings). His concluding entry in MIS, which was prepared in conjunction
with an Immediate Safety Assessment, reads:
2009 NOV 23 (SW TYMKOW): UPON
COMPLETION OF THIS INVESTIGATION THE FINDINGS HAVE CONCLUDED THAT DOMESTIC
VIOLENCE HAS OCCURRED IN FRONT OF THE CHILDREN. MOM IS ACTING APPROPRIATELY AND
HAD GOTTEN A NO GO NO CONTACT ORDER IN PLACE BETWEEN HER AND HER HUSBAND AND
HER HUSBAND AND HER CHILDREN IN ORDER TO ENSURE THE SAFETY OF THE CHILDREN.
PARENTS HAVE BOTH INDICATED THAT THERE ARE NO PLANS TO RECONCILE AND THAT THEY
ARE PLANNING ON DIVORCING. MOMS MENTAL HEALTH APPEARS TO BE STABLE ENOUGH
THAT SHE IS ABLE TO PROVIDE THE NECESSARY CARE FOR HER CHILDREN. AT THIS TIME
THE MINISTRY DOES NOT HAVE ANY CONCERNS OF THE CHILDREN BEING LEFT ALONE WITH
EITHER PARENT. ONLY IF THE PARENTS SHOULD CHOOSE TO RECONCILE WOULD THE
MINISTRY WANT TO BE INVOLVED IN ENSURING THE SAFETY OF THE CHILDREN DUE TO
DOMESTIC VIOLENCE. SW OFFERED SUPPORT TO THE FAMILY HOWEVER AT THIS TIME MOM IS
NOT WANTING SERVICES FOR HERSELF OR HER FAMILY. THE FILE WILL BE CLOSED. TO BE
REVIEWED BY TL STRICKLAND.
[129] Recordings
are to be made in MIS of the Ministrys activity, including communications,
meetings, and correspondence. With one notable exception that I will describe
later, the notes that were recorded about the Directors involvement with the
family, through the Ministry, appeared to have been recorded on an ongoing
linear and chronological basis in MIS.
[130]
On November 13, the day following Mr. Tymkows visit, B.G.
requested of him a letter for purposes of the family law action advising that
the Ministry had no issues with his having unsupervised access to the children.
Mr. Tymkow responded that he would be able to do so once his investigation
was completed. On November 23, after further prompting from B.G., Mr. Tymkow
and Mr. Strickland penned a letter that cleared B.G. of any s. 13
concerns. That letter read:
November 23, 2009
To whom it may concern:
RE: Mr. [B.G.]
The Ministry of Child and Family Development has been
involved with [B.G.s] family since October 5th, 2009. The MCFD is
in the process of conducting an investigation regarding the parents ability to
protect the children from witnessing domestic violence. At this point in the
investigation and given that there is a no go no contact order between [J.P.]
and [B.G.] the MCFD position, is that the children are safe. The Ministry feels
that both parents are capable and able to provide a safe environment for their
children. Only if the parents decide to reunite or reconcile would MCFD have
concerns regarding the parents ability to protect from domestic violence.
Should reunification occur MCFD would implement counseling and support for the
family to address issues surrounding domestic violence.
At this time it appears that the file with the Ministry will
close.
Yours truly,
Jeff Tymkow | William Strickland |
Social Worker | Team Leader |
Vancouver South Intake and Assessment | Vancouver South Intake and Assessment |
[131] When Mr. Strickland
and Mr. Tymkow signed the letter, they had available to them all of the
MIS records as well as the Ministrys hard copy files concerning the Directors
history with the family and prior reports of physical abuse by B.G.
[132] There was,
in the circumstances, no basis upon which to send the letter, other than that
it had been requested by B.G. The Directors practice, Mr. Tymkow and
other social workers admitted, was to avoid becoming involved in family law
disputes between parents when there were no protection concerns regarding the
children. Senior Ministry witnesses called on behalf of the Province testified
that the letter was unusual and that they had never seen or heard of one being
prepared before. For example, Ms. Lejko said the letter was odd and not
one she had ever seen in her experience. She and Mr. Blandford were
surprised that it had been sent. In closing argument, the Province conceded
that the letter was unusual and probably should not have been sent given the
outstanding restraining orders.
[133] Indeed,
the letter was prepared against a backdrop of restraining orders, an ongoing
criminal investigation of B.G., and a fractious family law action, all of which
Mr. Tymkow and Mr. Strickland were aware of. They were also aware
that B.G. planned to use the letter to his advantage in the family law action.
[134] At trial,
neither Mr. Strickland nor Mr. Tymkow had a reasonable explanation
for sending the letter. Mr. Strickland said that he had been finishing up
the file and that the letter had been sent as usual. He admitted that he
agreed to send the letter even though he knew the family law dispute was going
to be long and drawn out. Mr. Strickland was a senior Ministry employee
with approximately 15 years experience. I found his explanation for his role
in the letter to have been vague and lacking in credibility.
[135] Mr. Tymkow
did not provide a reason for sending the letter other than to say that B.G.
requested it to assist him in the family law action. Mr. Tymkow was not
able to recall why the letter was sent.
[136] Even if
the letter could be said to constitute a report of the results of the
investigation into the report of physical abuse (in spite of the letter stating
at the outset that the Ministry was in the process of conducting an
investigation), a copy should have been sent to J.P., which did not occur. When
J.P. learned of the letter, she was shocked and upset because she had
understood that the Ministrys role was to protect the children from physical
harm. She had been led to believe that the Provincial Crown was considering
laying charges and she was anticipating an interview with Crown Counsel. She
called Mr. Tymkow on December 4, 2009, was put over to Mr. Strickland,
and expressed her profound unhappiness. Mr. Strickland suggested that she
come to his office to discuss the letter, which she did that morning.
[137] I turn now
to the plaintiffs claim concerning negligent assessment and investigation of
reports of physical abuse. Once the Director receives a report that a child may
be at risk of physical harm, the Director has a duty to assess the information
and determine whether there is a risk of harm to children and whether further
action was required.
[138] To assess
whether there is a risk of physical harm or that it has occurred to a child by
their parent, the Director must consider a number of factors, including the
childs views about physical safety with that parent and whether:
(a) the parent threatened to
physically harm the child or other children;
(b) the explanation
provided by the parent is credible and consistent with the harm the child has
suffered;
(c) the child
has been present at and exposed to incidents of violence or abuse involving
that parent; and
(d) the parent
is able and willing to control or modify potentially harmful conduct including
substance abuse, an abusive interpersonal relationship with another person, and
other personal limitations that create a risk of harm to their child.
[139] Physical
harm includes physical injury, physical impairment or intense or prolonged
pain as a result of the acts of another person. Physical injury includes
observable and non-observable injury. Physical impairment is a condition that
affects a childs ability to function physically or mentally as usual either
temporarily or on an ongoing basis: Manual, 3.1-9.
[140] I have
determined that the reports that the Director received over time concerning
B.G. engaged s. 13 of the CFCSA because they constituted reports
that one or more of the children were or may be in need of protection from
physical harm as defined above. The Director acted appropriately to assess and
decide to investigate reports of physical harm in this case. In my opinion,
however, Messrs. Tymkow and Strickland failed to act in accordance with the
standard of care as reasonable social workers in determining that the children
were safe in the care of B.G. when faced with confirmed reports of his inappropriate
steroid use, inappropriate displays of temper, and his physical violence
towards J.P. in front of the children, and in the context of his arrest for
assault, a pending charge for uttering death threats, and the outstanding
restraining order that prohibited his direct or indirect contact with the
children. There was no reasonable basis to send the November 23, 2009 letter to
B.G. that they knew that he would use in the family law action. I am satisfied
that the letter was the product of their failure to act in accordance with the
standard of care.
[141] I also
wish to remark that although I find it troubling that the investigating social
worker determined there was no merit to the report that K.G. had in fact been
assaulted based on the statement of a five-year-old child, I do not find a
breach of the standard of care (as alleged by the plaintiffs) to have been
proven. In looking at the evidence adduced in this case, I have determined that
it is one of those less than optimal situations spoken of by Saunders J.A. in B.M.
that has not been shown to fall outside the bounds of reasonableness.
D. Sexual Abuse
[142]
Most of the plaintiffs claim concerns the Directors alleged failure to
assess and investigate reports of sexual abuse. The general particulars of the
alleged negligence can be summarized as follows:
(a) the Director failed to assess and
investigate those reports due to a pre-determined view that J.P. was
fabricating the sexual abuse allegations;
(b) the Director improperly and
maliciously interfered with and influenced the VPD investigation into the
sexual abuse allegations;
(c) the Director failed to undertake
an independent investigation into the sexual abuse allegations and improperly abdicated
responsibility to the VPD;
(d) the Director failed to assess and
investigate information from credible community sources that might or could
corroborate the sexual abuse allegations;
(e) the Director failed to properly
assess and investigate information provided by J.P. and by the three older
children in relation to the sexual abuse allegations; and
(f) the Director concluded that
there were no protection concerns arising from J.P.s reports of sexual abuse
despite all the evidence to the contrary.
[143]
Some of these allegations also found claims of misfeasance against Mr. Strickland.
1. Mr. Stricklands Meeting with J.P.
[144] By the
time J.P. went to meet Mr. Strickland at his office on December 4, 2009,
she had become concerned that B.G. had sexually abused their youngest child,
P.G.
[145] The manner
in which J.P. developed her concerns regarding the sexual abuse of P.G. is set
out in the Reasons at paras. 124-126. In summary, J.P. became concerned
about a labial tear to P.G.s vagina. She ruled out diaper rash because she and
the nanny used zinc cream. She spoke to the nanny about the possibility that a
diaper wipe may have inadvertently tugged P.G.s vagina during a diaper change.
She was satisfied with the answer and dismissed it as a possible cause. J.P.
eventually ruled out a yeast infection because the redness went away. She
remained concerned, however, about the larger than normal opening in her
daughters genitalia (even though the opening had shrunk somewhat from its original
size and the redness had disappeared).
[146] After B.G.
was arrested and left the family home, J.P. reflected on what she knew of
B.G.s vulgarity and his untoward behaviour in touching and kissing the
children. She reflected on certain remarks he made to her at K.G.s gymnastics
event in June 2010 and on photographs and highly graphic and sadistic drawings
on desk blotters she found amongst B.G.s keepsakes after he was removed from
the home in October 2009. J.P. began to question whether B.G. had done
something to P.G.
[147] J.P. spoke
with the VPD on November 28, 2009 to express her concern about the possibility
of sexual abuse of P.G. and asked the police to investigate. The VPD advised
her to take P.G. to the hospital. She arranged to take all four children to see
a pediatrician at Childrens Hospital in Vancouver on December 7, 2009. J.P.
arranged that appointment before her call to Mr. Strickland on December 4.
[148] When J.P. met
with Mr. Strickland on Friday, December 4, she continued to express her
unhappiness with Mr. Strickland for having prepared and sent the letter to
B.G. She was, in my view, appropriately suspicious of the Ministrys conduct as
a result of that letter. It was during this meeting that J.P. told Mr. Strickland
of her concern that P.G. may have been sexually abused. She also told him about
her report to the VPD and that she had scheduled an appointment at the
Childrens Hospital.
[149] In hearing
Mr. Stricklands evidence, I am satisfied that he took exception to J.P.s
criticism of his role in the letter. Nonetheless, he did agree to
retract the Ministrys position concerning B.G. and to send a further letter to
that effect. In the face of her concerns about possible sexual abuse of P.G.,
he also led her to believe that her report would be investigated. The meeting
concluded and J.P. left.
[150] After J.P.
left his office, Mr. Strickland authorized a new intake to be opened, Intake
4. Mr. Tymkow was to be the social worker in charge of the day-to-day
handling of the case. In spite of Mr. Strickland leading J.P. to
understand that an investigation would be conducted by the Ministry into the possible
sexual abuse of P.G., Intake 4 was not coded to investigate sexual abuse.
Rather, he authorized it to be coded OSP, which means offer support services.
Subsequently, on December 7, Mr. Strickland instructed Mr. Tymkow
to change the coding of Intake 4 to INV in order to investigate J.P.s mental
health. There was no coding or instruction to investigate possible sexual abuse
as the Province concedes Mr. Strickland had led J.P. to believe would take
place. Nor was there any assessment of her report of sexual abuse. Mr. Strickland
had decided that there was no merit to her report.
[151] J.P. did
not know of the coding to offer support services or of the subsequent internal
coding change made to investigate her mental health.
[152]
After he met with J.P. on December 4, Mr. Strickland sent an
email to Mr. Tymkow on December 7 in which he expressed his concern
about the initial letter to B.G. having been sent. He also acknowledged that he
knew of the no contact order when he signed the letter to B.G. Yet, as I read
his email, he appeared to try to distance himself from the circumstances in
which the letter was sent when he suggested to Mr. Tymkow that he did not
know the purpose for which the letter was to be used by B.G.:
I recall our letter also mentioned that the children are
safe with either parent, but the violence between them is a serious concern
regarding the childrens emotional/physical wellbeing. As a result on November
23 we signed and sent this letter to [B.G., whom Mr. Strickland referred
to as Mr. P.]. We also documented in the letter that should the parents
decide in the future to reunite that MCFD would need to support and monitor
these efforts prior to reuniting. Please email a copy of this first letter
please.
[J.P.] was concerned that her x
spo was now in receipt of a letter clearing him of any wrongdoing. According to
the mother there is apparently a hearing regarding [B.G.s] access on Monday.
Her further concerns are that she was not sent this letter, nor had she
received a similar letter at that time. We will need to further discuss this
please. I am and was satisfied at the time knowing the ongoing police no
contact for [B.G.] with either her or the children is still in place. However,
we will need to address this ongoing no contact for [B.G.] after we consult
with the police. Presumably we will need to provide each party with another
letter indicating that there are new concerns that will necessitate that the
children for the time being remain in the care of the mother while this current
issues is further explored. I am a little concerned that we have provided a
letter supporting dads access while there is a police no contact order in
place.
[153] In the
email, he also told Mr. Tymkow of his concern for J.P.s instability
related to the dramatic separation between the parents negatively impacting the
children and am further concerned that the mothers MH is now in question. He
also suggested that J.P.s new and graphic reports may be malicious as an
attempt to garner support from the courts regarding her intentions to disallow
[B.G.] access to the children.
[154]
Mr. Strickland and Mr. Tymkow signed a retraction letter dated
December 7, 2009. The letter stated that the Ministry was embarking upon a
further investigation. The letter made no mention of the nature of the
investigation nor of the sexual abuse allegations, only of having received an
additional report on November 30 concerning the safety of the children:
December 7, 2009
To whom it may concern:
RE: Mr. [B.G.] & Mrs. [J.P.]
The Ministry of Child and Family
Development has been involved with [B.G.]s family since October 05th
2009. The outcome of that investigation indicated that the children were safe
in the care of either parent. On November 30th 2009; MCFD received
an additional report concerning the safety of the children. During this time
the Ministry feels that the no go no contact order that is currently in place
would ensure the childrens safety, while the Ministry collects further
information regarding this new allegation.
[155] For
reasons I will later explain, I agree with the submissions of the Province and
the plaintiffs that the additional report refers to a memo prepared by the Ministrys
After Hours unit on November 29, 2009 that Mr. Strickland received on
November 30. It relays information from the VPD concerning J.P.s report
of possible sexual abuse of P.G.
[156] A copy of
the retraction letter was sent to J.P. Mr. Strickland could not, as he claims
in his evidence, have handed it to her at their meeting on December 4 because
it was not written until December 7.
[157] Mr. Strickland
gave his evidence in a manner designed to suggest that he acted proactively:
that he was the one to arrange the meeting in December in order to provide J.P.
with an amended letter. His evidence was not credible because the meeting was
only arranged after she called him to complain.
[158] In his
testimony, Mr. Strickland also tried to give the impression that it was
his instruction that led J.P. to take the children to Childrens Hospital on
the following Monday, December 7, when in fact, the visit had already been
scheduled by J.P. who was acting on the advice of the VPD.
[159]
J.P. took the children to Childrens Hospital on December 7, 2009, as
she had arranged. Dr. Jain examined the children but did not find any
physical evidence of sexual abuse. In her report dated December 8, 2009, which
was made available to the Director, including Mr. Strickland, Dr. Jain
cautioned that: [A] normal physical examination does not rule out the
possibility that abuse may have taken place.
[160] Also when
testifying, Mr. Strickland placed emphasis on what he understood to be J.P.s
purported agitated presentation at the Childrens Hospital in order to support
his actions and view of J.P.s mental health, but according to Mr. Tymkow,
by the time he got there, he found her to be calm. No one was called from the
hospital, including the social worker on staff, to provide evidence about
J.P.s presentation or circumstances surrounding her attendance. As a result, and
owing to my concerns about his credibility that I describe in these reasons, I
place no weight on Mr. Stricklands hearsay evidence.
[161] The
Province asserted that J.P. tried to bribe Mr. Strickland when they met on
December 4. Mr. Strickland testified that J.P. tried to bribe him during
their meeting. In his evidence, he expressed significant alarm and concern for
her attempt to bribe a public official, yet Mr. Strickland did not report
it to Sergeant Pollard of the VPD (I refer to their communication in the next
section) or to the Director nor did he make a note of it or record it in MIS. I
found Mr. Stricklands explanation that he did not report it because he
did not want to malign J.P.s character to lack credibility, for that is
exactly what he did in the information that he communicated to Sergeant
Pollard. I accept J.P.s account – that she was so angry at Mr. Strickland
that she made a highly sarcastic remark during their meeting, asking him how
much B.G. paid him to write the letter and what he wanted to retract it. I have
determined that she did not attempt to bribe him. When Mr. Strickland
subsequently tried to make it an issue with J.P. when he met with her on
December 31, a day after the Apprehension, he quickly backed away once she
reminded him that he knew her particular remarks were not serious. I am
satisfied that had Mr. Strickland thought J.P. was trying to bribe him, he
would have reported it to Sergeant Pollard and to his superiors, recorded it in
MIS, and communicated it to Mr. Tymkow in the follow-up report he sent to
him on December 7 about their meeting.
2. Mr. Stricklands Call to Sergeant
Pollard
[162] On
December 7, Mr. Strickland called Sergeant Pollard, who was the head of
the VPDs sexual offences unit. Mr. Strickland initially testified that he
had no recollection of his call to Sergeant Pollard. However, once he was shown
Sergeant Pollards memorandum and notes, he had a sudden recollection of details
that went beyond the contents of Sergeant Pollards notes.
[163] Mr. Stricklands
testimony, once his recollection returned, varied between having left a message
for Sergeant Pollard and speaking with him directly. For reasons that I set out
in this and other sections, I did not find Mr. Stricklands testimony overall
to be credible, reliable, or forthright. In some instances I did not find him
to be honest when testifying. I am not prepared, therefore, to simply accept
his evidence that he spoke directly with Sergeant Pollard. The objective
evidence, an e-mail that Mr. Strickland sent to Mr. Tymkow on December
11 about the call, refers to him having left a message for Sergeant Pollard
because he was not able to get through and [he] was not able to determine if
an officer has been assigned to the case.
[164] It is
clear from the evidence that Mr. Strickland had only one communication
with Sergeant Pollard. In the circumstances, I prefer to rely on the objective
evidence created at the time and, accordingly, it appears that Mr. Strickland
purposefully left a detailed voicemail message about J.P. for Sergeant Pollard.
In either case, whether it was a voicemail message or a conversation on the
telephone, Mr. Stricklands call to Sergeant Pollard was purposeful, one that
conveyed a misleading impression about J.P. and her motive in reporting her
concern of sexual abuse of P.G. and it was, in the circumstances, improper.
Despite his promise to retract the letter clearing B.G. of physical abuse, Mr. Strickland
advised Sergeant Pollard that the Ministry had cleared him.
[165]
Mr. Strickland agreed in cross-examination that the information he
provided to Sergeant Pollard is recorded in the Sergeants typed memorandum to
file recorded in the VPD records the same day. It states:
14:05 hrs
Pollard was contacted by phone by William Strickland, MCFD
Supervisor. He has been overseeing this file for MCFD. He stated there were
concerns by his office regarding possible malicious efforts by the complainant
on this file to make complaints of sex abuse against the childrens father
[B.G.]. He advised there may be underlying mental health issues with the
complainant. There were inconsistencies in her statement to MCFD where she
provided detail around the SOC licking her childrens genitals then she later
stated she was shocked when at a later date he expressed sexual interest in
children in front of her. She presented as very erratic in her account of the
alleged abuse of her children by [B.G.].
He advised the two youngest
children including [P.G.] were examine [sic] this date at Childrens Hospital
by Dr. Jain (sp?) and no sign of sex assault were noted. He also stated
the two oldest children were interviewed and no disclosure of any physical or
sexual abuse were disclosed. They were not specifically interviewed on the
issue of sexual assault. There is a custody hearing in court this Wednesday Dec
09, 2009. The father currently has no access to the children due to a
restraining order. MCFD cleared the father of a prior physical abuse allegation
in November 2009. Strickland advised the MCFD investigator assigned will be
Jeff Tymkow.
[166] Mr. Strickland
did not make notes of his communication with Sergeant Pollard. He testified
that he does not make notes, even when he is, as in this case, directly
involved in dealing with parents and third parties about a report of harm or an
assessment or intake. I find that to be contrary to the standard practice
required of social workers and contrary to the Ministrys own policy. As a
result, no one looking at the Ministry file could know of his call to Sergeant
Pollard.
[167] Mr. Strickland
agreed in cross-examination with the proposition that he was suggesting to Sergeant
Pollard that J.P. may be lying, which he also agreed was a very serious
allegation.
[168] I have
determined that Mr. Strickland did not have any reasonable basis to believe
that the information he conveyed to Sergeant Pollard was true. In addition to
passing on information to Sergeant Pollard about his views of J.P., Mr. Strickland
also misstated to Sergeant Pollard some of the information he received from
J.P. during their meeting on December 4.
[169]
Nevertheless, Mr. Strickland sought at trial to justify his call on
the basis that he was obliged to share information with the VPD, including the
Directors opinion and assessment:
A There was never
an intention to sway the thinking of the Vancouver Police in any way, but we
have a duty to share information and our opinion and assessment with the VPD,
as we were running an investigation concurrently. Theres a — theres a — a
broad scope of possibilities that may have happened for these children and its
our duty to consider all of those permutations and all of those possibilities.
[170] I do not
find this explanation credible. There were no parallel investigations being
conducted at that time. Intake 4, after all, had been quickly amended to investigate
J.P.s mental health. The Ministry never did conduct its own proper assessment
let alone investigation into the sexual abuse allegations. The overall tenor of
the information delivered by Mr. Strickland to Sergeant Pollard does not
reflect permutations and possibilities as Mr. Strickland suggested in his
evidence. Rather, he delivered a clear message that the father was cleared of
prior physical abuse allegations and was now facing malicious allegations of
sexual abuse from a mother who suffered from mental health problems.
[171] The
Province argued that Mr. Strickland acted in compliance with his duty to
share information with the police and that he honestly and reasonably believed
the truth of the information he communicated to Sergeant Pollard. The Province
pointed to computer generated notes in MIS, shown to have been entered by Mr. Tymkow
on November 28, 2009, to demonstrate that Mr. Strickland was aware of
detailed information concerning J.P.s interaction with the VPD that night. The
Province made this assertion even though Mr. Stricklands evidence about
those notes and his reliance on them was vague. I did not find his evidence to
support the submission.
[172] On their
face, the notes in MIS shown entered on November 28 reflect J.P.s interaction
with the VPD that night concerning her report of her concerns that P.G. had
been sexually abused and of B.G.s ongoing harassment of her.
[173]
I am satisfied that those notes were not entered in MIS until a later
date. They could not have been made on November 28 because on their face, they
are shown to have been entered within the context of Intake 4, which was not
opened until December 4. Mr. Tymkows general approach to paper work was
to complete it towards the end of his involvement in a file. For reasons that I
will explain when discussing another entry he made on November 28, I am
satisfied that he made all of his entries for that date in accordance with his
general approach and towards the end of his involvement in the case.
[174] There was
a distinct lack of clarity during Mr. Stricklands testimony about what
information he purported to rely upon when he placed his call to Sergeant
Pollard. The matter became clear, however, some four months after the conclusion
of closing submissions in this case in December 2014. At that time, counsel for
the plaintiffs and the Province jointly tendered, to be entered as an exhibit,
a memorandum prepared by the Ministrys After Hours unit on November 29,
2009.
[175] It turns
out that the only information that Mr. Strickland had in hand before he
met with J.P. on December 4 and his call to Sergeant Pollard on December 7,
2009 about J.P.s interaction with the VPD was that After Hours memo. I agree
with counsel for the plaintiffs and the Province that the appropriate factual
finding is that Mr. Strickland received it on November 30.
[176] Even so,
the memo does not support the Provinces submission concerning the
appropriateness of Mr. Stricklands call to Sergeant Pollard on December
7. The After Hours memo does not advise that J.P. had mental health problems or
that she had potentially fabricated any allegations concerning sexual abuse or was
malicious.
[177] The After
Hours memo records J.P.s complaints about harassment by B.G. and his family in
breach of the restraining order and of her concerns that B.G. may have sexually
abused P.G. There is no conclusion, tentative or firm, that J.P. suffered from
mental health issues. To the contrary, and incorrectly, the memo notes that
J.P. previously underwent a psychological assessment for mental health issues
by a social worker with car 86 (a joint VPD and Ministry mobile unit), and was
found to be fit to care for her children and not to pose any danger to her children.
At most, the memo advised that in her account of information, J.P.s thoughts
were disorganized and that she tended to go off in various tangents and was
more focused on harassment by B.G.s family than possible sexual abuse.
[178] Thus, the
After Hours memo reports on a prior psychological assessment that was
favourable to J.P. When Mr. Strickland asked J.P. about that previous
assessment during their meeting on December 4, she denied it ever occurred. He
was not prepared to consider that she might be telling him the truth. Instead
of checking with the VPD, he jumped to the conclusion that she was lying to
him. He continued to hold to that view throughout and made his views known to Mr. Tymkow
in his December 7 email. At trial, Mr. Strickland acknowledged that no
such assessment was ever conducted. The VPD notes are in error.
[179] The After
Hours memo also reports that attending officers also learned of the outstanding
charges against B.G. relating to physical abuse. The nanny was also interviewed
by the police at the house. She confirmed that B.G.s parents and sister had
shown up at the older sons soccer game at school and spoke with him (in spite
of the restraining order). J.P. was unhappy because she understood B.G.s
parents were trying to tell her children (and to convince teachers and the
school principal) that she suffered from mental health issues.
[180] The memo
also reports that on a review of the officers notes by their superiors, the
VPD concluded there was no basis to press charges in respect of alleged sexual
abuse of P.G. The notes also show that the VPD advised J.P. to take her
daughter to the hospital for an examination (which she did).
[181] Accordingly,
the After Hours memo did not provide Mr. Strickland with any reasonable
basis to provide the information he did to Sergeant Pollard. Nor did it provide
him with any basis to convey a similar picture of J.P. to Mr. Tymkow in
his email of December 7.
[182]
Even before the allegations of sexual abuse surfaced in this case, Mr. Strickland
was predisposed to the view that sexual abuse disclosures from children can
often be the result of coaching by a parent involved in an acrimonious marital
breakup. He testified that it has often been the case that he has questioned
whether the children have been influenced to make disclosures by a parent to
advance their interests in the family law action:
A [I]ts a very complicated issue. I – – in my
experience the potential for coaching exists often, particularly in acrimonious
marital breakups. Ive, in my experience, wondered if its happened in the
past. Its a very difficult thing to say whether its happened definitively or
not because, of course, the party whos participating in the act of coaching is
often not readily willing to admit that that has happened. And by the time the
opportunities to talk about that as an outcome, so much weight is given to – –
to the outcome of the coached statement that its very difficult for that
person to retract those statements.
In my
experience its – – its often been the case that Ive questioned whether or
not information thats been brought forward by children hasnt, in some part,
been influenced by a parent, a protective parent, with interests in – – I
suspect in perhaps strengthening ones – – one parents position over the other.
[183] I will now
refer back to the problems with the notes shown in MIS to have been recorded on
November 28. MIS contains a risk assessment regarding sexual abuse
allegations shown to have been conducted on November 28 by Mr. Tymkow. In
it, he referred to sexual abuse allegations concerning the children as
opposed to only P.G. He concluded that J.P. was highly erratic and
suspicious, that mom may have made allegations against dad up, and that VPD
is aware of this.
[184] In his
testimony, Mr. Tymkow admitted that he made those entries in MIS at a
later date.
[185] Also, he
could not explain how the other impugned notes dated November 28 appeared in
MIS in the manner that they did because entries in the system are always
recorded on the date they are entered. He described the MIS program as one that
records entries in a chronologically linear manner.
[186] I find Mr. Tymkows
admission that the November 28 risk assessment was made at a later date to be
accurate. Some five days earlier, on November 23, 2009, Mr. Tymkow had
concluded in respect of the physical abuse allegations (in Intake 3) that
reports concerning J.P.s mental health did not pose any protection concerns.
He had no further contact with J.P. following November 23 until December 4 and
therefore could not have reached a different conclusion about her mental health
on November 28. Equally, he had no basis to conclude in the November 28 risk
assessment that allegations that the children had been sexually abused
by B.G. were likely fabricated because those allegations were only first raised
later, on December 17. Mr. Tymkow, Mr. Strickland, and the Director
did not know of allegations of sexual abuse of the children collectively, as
opposed to solely P.G., on November 28.
[187] Yet,
surprisingly, in its further oral argument made following entry of the November
29 After Hours memo as an exhibit, the Province said that the November 28
risk assessment made by Mr. Tymkow accurately reflects the Directors
thinking as of that date. The plaintiffs, of course, readily point to that submission
to say that it means that the Director and social workers had made up their
minds on November 28, before any assessement and investigation had been
undertaken, that there was no merit to the sexual abuse allegations, including
those that concerned the other children that surfaced at a later date, and that
they had determined that J.P. had likely fabricated them and that she suffered
from mental health problems. If taken as correct, then the Provinces submission
demonstrates that the Director and social workers involved with the case acted
with a closed mind, failed to assess and investigate all reports of sexual
abuse, and stuck to a view that J.P. fabricated known and yet unknown
allegations of sexual abuse.
[188] In considering
all of the evidence, I am satisfied that the notes and risk assessment in MIS
recording entries made by Mr. Tymkow for November 28 were made closer to
or at the close out date of Intake 4 (which was signed off on by Mr. Strickland
on February 10, 2010) based upon his knowledge base and the mindset that he had
at that time. I am not able to determine how MIS was engaged to affect the date
entry of the notes, but I infer that it must have been done by someone who
could make changes to the data to retroactively date documents.
[189] Therefore,
in conclusion, when Mr. Strickland made the call to Sergeant Pollard on
December 7, the Director and the Ministry had not engaged in an assessment, let
alone investigation, of J.P.s report of possible sexual abuse of P.G. Mr. Strickland
could not know whether J.P.s concerns about P.G. were credible. He had no
medical evidence in front of him concerning J.P.s emotional health. What he
did have was Mr. Tymkows recent assessment (of November 23) that she did
not pose any protection concerns and he had the memo from After Hours reporting
that a recent psychological assessment had found her to be fit to parent. There
was no suggestion from the VPD that J.P. was acting maliciously. Nevertheless, Mr. Strickland
provided detailed information to Sergeant Pollard that painted an unsavoury
picture of J.P.s mental health and motives and one that created an impression
that B.G. had been falsely accused by J.P.
[190] Having in
effect previously apologized to J.P. for sending the letter to B.G. and agreeing
to retract it, leading her to believe on Friday, December 4 that the Ministry
would investigate her concerns of possible sexual abuse of P.G., then advising Sergeant
Pollard the following Monday that the Ministry had cleared B.G. and coding Intake
4 to investigate J.P.s mental health as opposed to possible sexual abuse, I
have determined that there was no other basis for Mr. Stricklands call to
Sergeant Pollard than some form of ill will towards J.P.
[191] I must add
at this point that I reject the Provinces submission that qualified privilege
attaches to Mr. Stricklands communication with Sergeant Pollard. The
doctrines purported application is defeated by Mr. Stricklands ill will
and his knowledge that much of the information he was providing was untrue and
his recklessness as to the truth of the remainder.
3. Impact of Mr. Stricklands Call on
the VPD Investigation
[192] The
information provided by Mr. Strickland to Sergeant Pollard had an adverse
impact on the VPDs view of the sexual abuse allegations and their approach to
the investigation.
[193] Sergeant
Pollard instructed Detective Rowley, a junior officer with that unit at that
time, to investigate the sexual abuse allegation. She had previously been with
the VPD but was new to the sex offences squad, having joined it four months
earlier.
[194]
Detective Rowley testified in her evidence in chief that when taking her
instructions from Sergeant Pollard, she was told of Mr. Stricklands
advice concerning J.P.s malicious intent:
Q
Now,
I see a notation at the bottom of this page here dated December 14th,
2009, which again this is a statement of Mr. Pollard but it sets out that you
were going to interview the complainant and determine if future investigation
is warranted on this file. So does that mean that in certain circumstances an
investigation might go no further than interviewing the complainant?
A Thats correct. So – –
Q And I wonder if you could elaborate on that and —
and —
A Yes, what Sergeant Pollard
asked me to do is there was obviously some concern here and what was happening
is that the – – there was overall now a concern for the childrens well-being,
whether or not there was in fact some sexual abuse going on, just their general
overall safety and well-being. As I commented before, there was some
concern about the marital discord that was ongoing and the concern was is that
there may be more going on than, you know, the original harassment call that
had led to the initial attendance of the police. So the best place to start,
and our typical place to start in an investigation is with the complainant. And
what this meant was I would interview [J.P.] and I would take into account all
the information I had leading up to this, and of course what I wouldve like to
have had would have been her statement but all I had was the attempts made to
gather a statement and not been successful in gathering one. And then as you
can see on this page I was made aware that there were concerns for malicious
efforts by the complainant to make complaints of sex abuse against the
childrens father, [B.G.].
[Emphasis
added]
[195]
Detective Rowley admitted that Mr. Stricklands advice contained in
Sergeant Pollards memo, which she read at the outset of her investigation, had
a significant impact on her investigation:
Q All right. Do you have any reason to believe
that there are any inaccuracies in Mr. Pollards notes from December 7th,
2009?
A No, they seem to be his notes.
Q All right. Now, Im sure you would agree with
me that having looked at the report from November 28, 2009 – –
A Mm-hmm.
Q – – conclusions of the investigating officers,
and this entry, the telephone conversation between William Strickland and
Sergeant Pollard, that the starting point is that there are some pretty serious
mental health issues here, right? Thats the starting point, correct?
A Malicious efforts by the mother is the first
line.
Q Right.
A Around sex abuse of the children.
Q I mean any investigating officer says
malicious efforts, wow, right?
A Mm-hmm.
Q Thats – – thats a red flag, isnt it?
A Its a concern for sure.
Q All right.
A I would trust what Sergeant Pollard – – Sure.
Q Sure.
A – – wrote and told me.
Q And this would have
a significant impact on your investigation, right?
A Yes.
[Emphasis
added]
[196]
Detective Rowley also volunteered her own view about mothers who report
that their child or children are victims of sexual abuse. In a similar vein to
the views held by Mr. Strickland, Detective Rowley testified that its
not unheard of for mothers to make false allegations of sexual abuse to
support a claim for sole custody:
Q Okay.
A And I – – I can
say this, I dont have any statistical numbers here but I can say now that Ive
been in the unit four-and-a-half years it is not unheard of that when there is
a case of marital discord a complaint will come in against one of the parents, and
it is typically the mom making allegations against the dad because they want
sole custody of the children. And I have been involved in cases like that
before that are just simply not true.
[Emphasis
added]
[197] I have not
found that Mr. Stricklands advice alone adversely impacted the VPD
investigation. There is no question, however, that Detective Rowleys approach
to the case and her views of the sexual abuse allegations were tainted by Mr. Stricklands
remarks to Sergeant Pollard. I am satisfied that the misinformation intentionally
reported by Mr. Strickland to Sergeant Pollard gave traction to the notion
of a malicious and unstable parent and played into Detective Rowleys
pre-existing concerns about mothers who assert sexual abuse in marital
disputes.
4. Impact of Stricklands Views on Other
Members of the Intake Unit
[198] Mr. Tymkows
view of J.P. and her motives was also adversely affected by Mr. Strickland.
In an email he sent to Mr. Strickland on December 14, he concurred with
his superiors view, stating, I agree with you that she is hellish to work
with. Mr. Tymkow said that he used the wrong word to describe J.P, and
explained that he found her quite difficult to work with because she was
going off on tangents and needed redirection. He said that it was not a word
that Mr. Strickland had used.
[199]
I do not find Mr. Tymkows explanation to be credible. In looking
at his words in the email, he is agreeing with his superiors concerns about
J.P.s mental health but at the same time suggesting that she did not pose any
s. 13 concerns:
I agree that mom presents has have (sic) mental health
issues and that maybe ???? Dad is the better parent. But all I am hearing is a
couple throwing allegations back and forth at each other and us jumping when
something is said.
I agree that mom is hellish
to work with and that she more than likely has a undiagnosed mental health
issue but, I do not see the children being at risk under section 13.
[Emphasis
added]
[200]
I reject Mr. Stricklands evidence that he reprimanded Mr. Tymkow
for expressing those remarks as unprofessional. Mr. Stricklands written
response to Mr. Tymkow does not reflect a reprimand. Mr. Strickland
told his subordinate in a follow-up email sent the next morning:
Thanks. Make sure that your
e-mail reply to mine does not make it into the file. I would not want the
mother to know that you find her hellish to work with.
No words were used to suggest a reprimand. Mr. Strickland
testified that he was appalled that Mr. Tymkow chose to document his
views of J.P. in the file. Mr. Stricklands evidence that he felt it was
unfair and disrespectful to [J.P.] lacks credibility in light of the
information that he communicated to Sergeant Pollard. In all, I am satisfied
that Mr. Strickland wrote to his subordinate to ask him to remove the
email from the Ministrys file so that there would be no trace of it or of the
views he and Mr. Tymkow had of J.P.
[201] Mr. Tymkow
lacked sufficient experience and qualifications to express an opinion about an
undiagnosed mental health issue. He also lacked sufficient contact with J.P.
from which to reach that assessment on his own. The overall tenor of his email
shows that he was in agreement with much but not all of what his superior had
previously told him.
[202]
Once Mr. Tymkow completed his assessment of the physical abuse
allegations on November 23, he had minimal direct contact with J.P. over the
course of his involvement in the case. He met with her only twice (once at her
home on November 10 and the other at the Childrens Hospital when she attended
with the children in early December) throughout his entire involvement with the
case and had minimal direct telephone contact with her. He could not identify
the dates of any phone calls he had with her, let alone the number, because he
did not take any notes. He admitted that he knew J.P. was frantic to get to the
truth about the sexual abuse, and admitted that she left him a great deal of
telephone messages, which he found annoying because they were, he said, essentially
a drain on my time and took up an exorbitant amount of his time. He agreed
that there was not a single entry in MIS about his dealings with J.P. after
November 23. He tried to justify his views on the basis that none of the
information she provided nor his purported concerns for her mental health had
anything to do with his role as a social worker:
A Again, given the
information that was being presented to me, a lot of the information was
information that, in my view, the Ministry already was aware about, and other
times, the majority of the times, the information that was being presented
to me had nothing to do with my – – my role as a social worker. It was
about custody and access, it was about the – – again, around the disclosures of
the sexual abuse, and I would direct her back to the VPD. So I – – I felt that
I was doing what I needed to do as far as directing her to the appropriate
place to disclose information.
[Emphasis
added]
[203] In hearing
Mr. Tymkows evidence I was satisfed that once he knew of Mr. Stricklands
views of J.P., he paid little or no heed to her calls, viewed her to be an annoyance
that kept him from other cases, failed to provide her with any information
about the process in which the investigation would take place, and apart from
speaking with Detective Rowley, did nothing to investigate the sexual abuse
allegations before he left for vacation at the end of December.
[204] It is no
excuse for the Province to say, as it does, that Mr. Tymkows practice not
to record calls and make notes means that he did not single out J.P. His
failure to make notes is in breach of the Ministrys own policy and in breach
of the standard of care of a reasonably prudent social worker in the
circumstances.
[205] In all, Mr. Tymkow
found the case to be an annoyance, and one that distracted him from what he
perceived to be other more meaningful cases. Having prejudged the merits of the
case, he was sloppy and inattentive. He acted in breach of the standard of care
expected of a reasonable social worker whose responsibility is to assess and
investigate reports of child protection concerns.
[206] As a
preview of subseqent events, I found that social workers involved in the case
lost sight of the requirement for objectivity and critical and rational thought
in assessing the initial sexual abuse concern relating to P.G. and
subsequently, as the sexual abuse allegations expanded in scope. A conclusion
was reached early in the VPDs investigation that the allegations were likely fabricated
by J.P. Mr. Tymkow admitted that Detective Rowley told him in December
before he left for vacation that the allegations were likely fabricated. Detective
Rowley confirmed that she told the Director no later than January 5, 2010,
before the children were interviewed and before the investigation was completed,
that the sexual abuse allegations were made up and that the videotapes of their
disclosures were scripted by J.P. In hearing Detective Rowleys evidence, I am
satisfied that her opinion, reached before she spoke with any of the children
and without having made enquiries about the circumstances in which the childrens
mid-December disclosures were made and then recorded, was influenced by the
information that Mr. Strickland conveyed to Sergeant Pollard.
[207] Accordingly,
I have determined that Mr. Stricklands call to Sergeant Pollard and his
conduct within his office adversely influenced the views of others working on
the case against J.P.
[208] Detective
Rowleys opinion served to cement the views of those social workers who were
uncertain whether sexual abuse had occurred. From there, the Director treated
J.P.s reports of sexual abuse to be without merit, considered her preoccupation
with them as evidence of her mental instability and unfitness to parent, and
became concerned about the emotional harm J.P. may have caused the children. As
I will go on to discuss, a subsequent disclosure made by the eldest child,
BT.G., to the VPD about genital contact with his father in the shower shortly
after Detective Rowley communicated her opinion to social workers, caused some
concern to the Director, but at no time did the Director ever consider whether
BT.G.s disclosure might mean there was merit to any of J.P.s reports of
sexual abuse.
[209]
Even though Mr. Strickland led J.P. to believe that the Ministry
would investigate her concern that P.G. had been sexually abused, once the
retraction letter was sent, he and Mr. Tymkow signed another letter dated
December 16, 2009 to support B.G.s application for access to his children that
was scheduled to be heard in this Court on December 17. The letter made no
mention of the sexual abuse allegations. They knew that B.G. was going to use
the letter to support his application in this Court to vary Master Taylors
order to allow him access to his children. The letter states:
December, 16 2009
To whom it may concern:
RE: Mr. [B.G.] and Mrs. [J.P.]
Currently the Ministry of Child
and Family Development has an open investigation on the above mentioned family.
At this stage of the investigation the Ministry is in support of Mr. [B.G.]
having supervised access to the children.
[210] Mr. Strickland
and Mr. Tymkow knew that their letter would be relied upon by B.G. to
support the merits of his application. Their evidence concerning the reasons
for writing the letter was vague and unsatisfactory. They could not provide any
reasonable basis to send it. Mr. Strickland admitted that it should not
have been sent. Even though he signed it, I found that the tenor of Mr. Stricklands
testimony was to deflect blame on Mr. Tymkow, by saying that it was his subordinates
decision, not his, to send it. They had no reasonable basis upon which to know
whether B.G. should be allowed or denied access, other than they had decided
that there was no merit in the concerns expressed by J.P. The letter was
written at a time when the VPD was only in the early stages of its investigation.
Messrs. Strickland and Tymkow wrote the letter in circumstances where there had
been no assessment or investigation by the Director of the sexual abuse
allegation concerning P.G. that had been raised by J.P., and I am satisfied
that they did so with a closed mind having concluded that the report was
without any possible merit.
5. Failure to Assess Information
[211] As noted,
the plaintiffs allege that the Director failed to properly assess information
relevant to the reports of sexual abuse of all of the children that were coming
to the Director from a variety of sources. The relevant evidence in this regard
begins with a call from J.P. to the Directors After Hours unit on December 17,
2009 reporting that the children were disclosing sexual abuse by their father. The
disclosures of sexual abuse by the three older children made to their mother in
December 2009 and the circumstances in which they did are described in the
Reasons at paras. 129-144. A summary of their graphic disclosures of
digital and penile vaginal and anal penetration and oral sex along with audio
recordings of their statements were provided to Mr. Strickland on December
23 by J.P. in an affidavit and in audio and video recordings.
[212]
In the Reasons, I found that J.P. initially spoke with the children
based on legal advice. She was expecting her children to respond to her with
blank looks to her question, Did daddy ever do anything, did he ever touch you?:
[128] A meeting was scheduled with the VPD to take place
on December 23, 2009. J.P. thought that in addition to providing her
account, the older children would be interviewed by the police as well. J.P.
received advice from her lawyer that in view of that impending meeting with the
VPD, she should ask her older children if there had been any inappropriate
contact from their father. Her evidence is corroborated by an email she sent to
her counsel.
[129] Following that advice, and upon her return home on
the evening of December 16, J.P. asked her two older children these
questions, Did daddy ever do anything, did he ever touch you?
[130] According to J.P., she
was expecting her children to respond with blank looks or with the comment
what are you talking about? Instead, she says that disclosures of sexual
contact by B.G. came pouring out of their mouths.
[213] Instead of
blank faces, the three older children began disclosing significant graphic
accounts of sexual abuse by their father. J.P. managed to make, albeit of
mediocre quality, video and audio recordings of some of those disclosures. At a
later date, she had them burned onto a disc at a local Best Buy retail store.
[214]
J.P. called the Ministrys After Hours telephone number that evening to
report that the children were making disclosures of sexual abuse and asking for
help. The After Hours memo reports:
[J.P.] called the Helpline
wanting a s/w to speak with her children about the sexual abuse they have
experienced. She stated that her children are starting to talk about it now
that they have been safe for some time and she wants to ensure a s/w hears what
they have to say.
[215] J.P. made
the same call to the VPD which, according to Detective Rowley, was not passed
on to her.
[216] It was at
this point – December 17, 2009 – that the Director and the VPD understood that
the reports of sexual abuse involved all of the children. As I go on to
discuss, there was no assessment or investigation of the reports by the
Director as required by the CFCSA, the Manual, and the Standards.
[217] No one
responded to J.P.s calls, who was, by then, understandably frantic with
concern for her childrens welfare given what they had told her.
[218] In her
call to the After Hours unit, J.P. also told the social worker that the
children did not wish to attend an upcoming access visit with their father and
have been crying about it. She called back a short time later to elaborate on
her concerns about the childrens access with B.G. She expressed her concern
that B.G.s mother, who was proposed to be the access supervisor, would not be
able to protect the children from their father, whom she said was a pedophile.
J.P. was advised to contact the District Office to speak with her case worker.
As I go on to describe in a subsequent paragraph, when J.P. sought Mr. Stricklands
help to prevent B.G.s access to the children pending the outcome of the
Directors investigation, he declined to help her.
[219] J.P.s
calls to the Ministry and the After Hours memo and the information contained in
it were not logged into MIS. It is Ministry protocol and standard practice for
memos from the After Hours unit to be immediately sent to the team leader of
the unit handling the file for review first thing the following morning. Mr. Strickland
admitted to the significance of the memo, but otherwise, his evidence about
whether he received and reviewed the memo was vague. Mr. Strickland
admitted that he routinely receives After Hours memos the following morning for
his review. When asked, But you say you always review [After Hours memos] the
next day, do you not?, Mr. Strickland replied, Thats correct, yeah. He
also admitted that J.P.s call to the After Hours unit should have been
recorded into MIS. He did not deny receiving the After Hours memo concerning
J.P.s calls on December 17, saying only that he did not recall receiving it
or reviewing it.. Mr. Strickland admitted that he knew of the childrens
disclosures before J.P. came to his office on December 23 to give him a copy of
her affidavit, sworn on December 21 (December 21 Affidavit), that referred to
the disclosures. This affidavit was prepared for an interlocutory application
in the family law action and contained a detailed description of the childrens
disclosures. I have determined that it was because he had previously read the memo
from the After Hours unit as per his standard practice.
[220] I am
satisfied that Mr. Strickland received and reviewed the After Hours memo
and then failed to record it in MIS, failed to respond to it, and failed to
advise his team that the children were disclosing sexual abuse. As a result, social
workers working on the file at the Intake unit were not aware of J.P.s calls
reporting the disclosures and request for assistance. I reject his evidence
that he first saw the After Hours memo when he had finished his work on the
case, which would have been in February 2010, before the file was transferred
to the Family Services unit, as lacking in credibility. Even if he had seen it
at that time, he failed to act on it, failed to reassess the reports of sexual
abuse, and failed to record the memo in MIS.
[221] I am also
satisfied that Mr. Strickland tied the report of the childrens
disclosures of sexual abuse to J.P.s credibility, which he had pre-judged to
be lacking.
[222] It is also
highly troubling that the After Hours memo was not produced in the First Trial
and only produced as part of the Provinces document production in this case.
[223] Following
the childrens disclosures, J.P. took the children to see their family doctor, Dr. Edamura,
on December 18, 2009. In the Reasons, I set out my findings concerning his
involvement at paras. 148-160. To summarize, he met with the two older
children separately. Dr. Edamura heard them describe sexualized events of
which he would not expect them to be aware. He carefully looked for coaching
and asked open ended questions in order to stay away from sexual matters.
During the course of his consultation, he learned of highly disturbing
information from the children.
[224] The
Director did not know of many of the details of Dr. Edamuras examination,
but the the Director was made aware of the examination in December 2009 before
the Apprehension and that the children had disclosed sexual abuse by their
father. The Director did not attempt to contact Dr. Edamura.
[225] I will
begin my discussion of the significance of the Directors failure to speak with
Dr. Edamura by setting out the information the Director would have learned
had the Director done so. This information was provided by Dr. Edamura
when he testified during the First Trial.
[226] BT.G. reported
physical and sexual abuse to Dr. Edamura. He told Dr. Edamura that
B.G. asked him when in the shower together to play with his penis to get an
erection, explaining that his fathers penis goes up and larger ten times.
BT.G. also demonstrated the shower activity by making squeezing marks with his
hand. Dr. Edamura was satisfied from his discussion with BT.G. that he knew
what an erection was. BT.G. also complained of physical abuse, telling Dr. Edamura
that his father grabbed him by the neck and twisted it hard enough to hurt, of
being pushed and having his arm twisted with sufficient force to cause pain.
BT.G. also told Dr. Edamura about his fathers sexual interaction with
K.G., disclosing that B.G. tells her to lick his penis and it tastes like a
lollipop, which K.G. reported had occurred as recently as two nights ago and
that it tasted pretty bad. He also reported that his father has K.G. squeeze
his penis and that when she does, her father yelled moo.
[227] K.G. told Dr. Edamura
about a game she played with her father called milk the cow. To play the
game, she said her father gets on his knees without his pants and underwear on
and she squeezes his penis to milk it out, and uses the words pee pee farts
as the end result of the game. She also told him that it feel[s] good that
Daddy is away. In his testimony, of which the Director was aware from the
First Trial, Dr. Edamura said that K.G. passed along her information to
him in a mechanical fashion without any judgments attached to her words. He was
of the opinion that K.G. did not appear to understand the implications of what
she was saying but well understood the facts of what she was recounting. BT.G.,
being older, seemed to Dr. Edamura to be more concerned about whether the
conduct was right or wrong.
[228]
Dr. Edamura could not detect any signs that the children had been
coached. He found that they were trying to be honest in providing their
accounts; both children knew, inappropriately so given their age, what an
erection was. Dr. Edamura called the Emergency department at Childrens
Hospital in order to speak with a child psychiatrist. When no one returned his
call, he wrote a letter to the hospital the same day to confirm his call. He
expected the letter would be given to the Ministry, which it was. His letter
reported:
This is to state that I have been [J.P.s] G.P. since 2000.
She has not had any mental problems.
I have discussed her concern today, regarding child sexual
abuse by their father. I have discussed this directly with the two older children,
[K.G.] and [BT.G.], who appear credible and sincere, explicit in corroborating
their mothers concern.
I have called BC Children
Hospital and they have advised me to contact the MHR and they would contact me
with the number to call.
[229] The
childrens visit to Dr. Edamura was also described in the December 21
Affidavit sworn by J.P. She delivered that affidavit to Mr. Strickland on
December 23, 2009. The childrens visit with Dr. Edamura was never
recorded in MIS.
[230] No one
from the Directors office contacted Dr. Edamura. Ms. Lejko admitted
that Dr. Edamuras letter was important and it would have been helpful to
the Ministrys assessment process to record it in MIS. Contrary to the
Directors position in the First Trial that Mr. Tymkow had tried to
contact Dr. Edamura before he left for holiday at the end of December
2009, Mr. Tymkow eventually admitted in cross-examination that he made no
attempt to contact the doctor about his meeting with the children, the sexual
abuse allegations, or his letter. Mr. Tymkow admitted that the only time
he tried to contact Dr. Edamura was in November 2009 in the context of the
physical abuse allegations, and only once, and was unsuccessful in reaching
him.
[231] To say, as
the Province does, that Dr. Edamura was unavailable at the end of December
2009 for months because he left for medical leave on January 1, 2010, does not,
in my opinion, excuse the Directors failure to attempt to speak to a credible
community source. According to Dr. Edamuras evidence in the First Trial
(imported in this trial), he was available in his office over the December
holiday period. I am satisfied that the Director could have tracked down Dr. Edamura
through his office receptionist or nurse given the gravity of the
circumstances. Instead, the Director dismissed any information he could provide
out of hand. No note was made of his involvement in MIS. His letter was placed
in the body of the file so that third parties reading through the file would
have to read beyond the notes in MIS and dig into the file to locate it.
[232] At trial, Mr. Strickland
dismissed the potential value of information that Dr. Edamura could
provide, and without having spoken with Dr. Edamura, sought to minimize it
on the basis that the children could have been coached by J.P. to make their
statements to the family doctor.
[233] He also
rejected Dr. Edamuras opinion that J.P. did not suffer from mental health
problems because it differed from what he said was his own experience with J.P.,
even though he has acknowledged that he is not a medical doctor and lacks
expertise to diagnose mental health problems.
[234] It is not
credible for the Province to now say that there was no point in contacting Dr. Edamura
because he could add nothing more than he wrote in his letter. Dr. Edamuras
testimony during the First Trial provided an in depth review and assessment of
the childrens disclosures and his analysis of the potential for coaching and
fabrication. His evidence provided fulsome particulars of his interaction with
the two children and readily withstood challenge in cross-examination from the Directors
counsel.
[235] Nor is
there merit to the Provinces submission, based on Ms. Caffreys evidence
attempting to excuse her teams failure to contact Dr. Edamura, that
nothing turns on their failure because, in effect, what he could say reflected
only a moment in time – J.P., just as other people under significant stress,
she said, could decompensate within a matter of a day or two. The Intake team
did not consider Dr. Edamuras information in that manner. Ms. Caffreys
evidence was argument in the guise of evidence.
[236] Further,
when the Director did hear Dr. Edamura testify in the First Trial to
provide a full account of his examination of the older children, the Director
not only challenged his evidence concerning his dealings with the children, but
actively sought to discredit much of it, including his evidence about the
meaning of the Childrens Hospital records from 2004 (which the Director
received in February 2010) that anal fissures suffered by K.G. as a young baby
may have been the result of sexual abuse. Thus, the Director not only chose to
ignore the information Dr. Edamura provided throughout, she chose to
actively challenge the reliability and in some instances the credibility of his
testimony during the First Trial. Dr. Edamuras evidence obviously had no
impact on the Directors position in the First Trial because in spite of it,
the Director continued to support B.G. as the more suitable parent.
[237] In the
present trial, Dr. Edamura was dismissed as an advocate and as a medical
professional not qualified to interview children about sexual abuse.
Nevertheless, the Director considers family doctors to be credible community
sources of information. The Directors failure to contact Dr. Edamura was
not an error in judgment. In failing to attempt to speak with him, which the
Director previously said that Mr. Tymkow had tried to do as part of
meeting his obligations as a reasonably prudent social worker, the Director
breached the standard of care expected of a reasonable social worker. That
failure and her subsequent approach to his evidence are symbolic of the
Directors failure to assess and investigate the sexual abuse allegations in
accordance with the standard of care. The nature of the Directors approach to Dr. Edamuras
testimony in the First Trial was also indicative of (what I will discuss in
section IX of these reasons) the Directors ongoing support of B.G.s custody
of the children regardless of the evidence adverse to him.
[238]
J.P.s sister, L.P., called the West Broadway office and spoke with Mr. Tymkow
on December 18, 2009. She reported that although she was initially skeptical of
the sexual abuse allegations, she had changed her mind because the children
were making specific disclosures to her. Notes in the Ministry file (but not in
MIS) record that she wanted to meet with the Director to report what the
children were saying:
TC from [L.P]. [L.P.] stated
that yesterday she went for a visit with [J.P.] and spoke with her children.
She stated that at first she was skeptical about the allegations [J.P.] was
making about [B.G.] but the children were being very descriptive in thier (sic)
stories about how [B.G.] was touching them and getting them to do stuff to him.
She stated that [K.G.] was telling her that Daddy was making her touch his
penis and that he would make her milk his penis like a cow. She told her
that his penis was hard.
[239]
Mr. Tymkow did not meet with L.P. or speak with her again. Nor did
anyone else on behalf of the Director. In his testimony, Mr. Tymkow could
offer no good reason, explaining instead:
Q Okay. Well go through your notes in a minute.
And then I understand you spoke to [redacted] on the telephone – –
A Yes, that is – –
Q – – on December the 18th – –
A Yes.
Q – – 2009?
A And I had also met with her prior – – or post
the removal, after the removal. There was times where she had come to the
office and I had met her.
Q Oh, I see, so this – –
A Yeah.
Q – – is like in January or February?
A Yeah.
Q All right. And did you at that point ask any
questions about the sexual abuse disclosures?
A There was – – in the telephone call that I
had with her, there was some disclosure that she had made around the sexual
abuse. Outside of that I dont believe so, no.
Q So when you physically met with her you didnt
ask any questions about the sexual abuse?
A No. At that point I – – I kind of was
not really that involved in the file. I was just in the office and she happened
to be there at the same time.
Q All right. But just so were clear you never
actually had a sit-down meeting with her, focused on any of the sexual abuse
allegations?
A No, no.
[Emphasis
added]
[240] Mr. Strickland
admitted in cross-examination that a social worker should have followed up with
L.P.
[241] Mr. Stricklands
recollection that it was Ms. Caffrey who interviewed L.P. was inaccurate
and in hearing it, it struck me that it was proffered in the witness box
without any belief in its truth. He eventually conceded that in giving that
evidence, he only had a vague memory of it having happened. After saying
that, he admitted that he had no recollection of knowing that L.P. had called
the Ministry.
[242] Mr. Tymkow
did not pass along L.P.s information to Detective Rowley or find out if she
was aware of it. It did not occur to him to do so. I reject the Provinces
submission that the Director acted reasonably in not responding to L.P. because
the VPD were investigating. By their own admission, the social workers
acknowledged the Directors obligation to relay information to the police. Mr. Tymkow
could have easily passed on information about L.P. when he spoke with Detective
Rowley in December. He could have also advised L.P. to speak with the VPD, but
he did not do that either.
[243] In hearing
their testimony at trial, I found that neither Mr. Strickland nor Mr. Tymkow
viewed the childrens disclosures to be of any significance in determining
whether sexual abuse had occurred. They held that view even though, as defence
witnesses admitted, the standard of care required them to regard childrens
disclosures of sexual abuse as prima facie evidence of sexual abuse
requiring investigation. They focussed instead on what they viewed to be the
impropriety of J.P.s conduct in discussing it with her children.
[244]
On December 18, the day following J.P.s call to the After Hours unit and
the same day that he spoke with L.P., Mr. Tymkow prepared a written alert
for all After Hours staff in case problems arose with the family after regular
business hours. No mention was made of J.P.s call to After Hours the night
before, J.P.s request for help, or the childrens disclosures, and the advice
from L.P. Instead, Mr. Tymkow focused on B.G.s access rights as well as
B.G.s concerns about J.P.s mental health. The intent of his message to After
Hours staff was clear – in the event of a problem, the focus should be to
assist B.G. and to be wary of J.P. who was suffering from mental health issues.
He went so far as to suggest that social workers responding to a call should
consider relying on police assistance (through car 87) and that J.P. could be a
threat to her children:
ALERT CONTENTS:
Action Requested:
Resource (including safe/unsafe houses):
Situation:
Currently the VPD and MCFD are involved with this family in
investigating allegations of sexual abuse towards the children by dad. Since
October 5th 2009 dad has not had access to the children due to a no
go no contact order that was put in place due to domestic violence that was
occurring between mom and dad. There was also a restraining order against dad
and the children. Dad went to court on December 17th 2009 to gain
access to the children. At this time MCFD and VPD were in support of supervised
access between dad and the children. The court granted dad access to the
children between the hours of 10am to 6pm on December 19. Mom sister is to drop
the children off at a starbucks and dad is to drop the children off after the
visit at the starbucks. Moms sister will drop off the kids and pick them up.
Paternal grandma will pick them up and drop them off and supervise the visit.
There is still a no go no contact order in place between mom and dad. MCFD does
not foresee any issues with situation but would like to make after hours aware
of the arrangement between mom, dad and the courts should a situation arise.
MCFD has concerns about moms
mental health. Mom often presents as irrational and mom will often go off on
tangents. Should after hours receive a call from mom and become concerned about
moms mental health a referral to car 87 may be necessary to assess her ability
to care for the children. At this time mom appears to be calm and has the
support of her sisters [K.] and [L.P.].
[245] On
December 23, 2009, J.P. met with Mr. Strickland and provided him with the
December 21 Affidavit, which along with Dr. Edamuras letter, attached as
exhibits audio and video recordings that she made of the children repeating
their statements. That affidavit also contained a detailed description of the
childrens disclosures. Earlier that morning, J.P. had given a copy of the December
21 Affidavit to Detective Rowley when she met her for an interview. The
circumstances leading up to the videotapes, the circumstances in which they
were made, and the disclosures made by BT.G. and K.G. are discussed in paras. 161-165
and 443-450 of the Reasons.
[246] In
addition to describing the childrens disclosures and attaching as exhibits
discs of the audio and video recordings, the December 21 Affidavit attached
other evidence J.P. claimed supported her allegation that all of the children
had been sexually abused by their father. She attached: (a) desk blotter
drawings drawn by B.G. that show graphic drawings of sadistic scenes of torture
and sexual abuse of women; (b) photographs of B.G. engaged in questionable sexualized
conduct including simulated sexual acts and questionable conduct with a naked
BT.G. as a young baby in the bath; and (c) a questionable email exchange
between B.G. and a close friend suggesting that they would meet at a local
library to perv out on the yougens. The Director was told by J.P. that those
documents were found among B.G.s files and keepsakes after he was arrested and
removed from the family home. Those documents and photographs are described in
detail at paras. 238-258 and 271-275 of the Reasons.
[247] No
notation was made in MIS of J.P.s meeting with Mr. Strickland on December
23 nor that she delivered to him the December 21 Affidavit or its contents.
[248]
Mr. Strickland admitted to watching the DVD attached as an exhibit
but otherwise took a brief cursory look at it. In his testimony he said the
responsibility to read that affidavit rested with the social worker handling
the file:
A
Now, I need to
share that I did not read that entire document in its – – but the social worker
was asked to read the document in its entirety. Again, my – – my role in
that office is not one of case manager but one of sort of – – as an oversight
to the practice that happens in the office, so it would have been difficult
for me to have any great detail poured over that entire document. And certainly
now to recall what was in there would be difficult for me.
Q Okay. Fair enough
that may be a lengthy document but is there anything in that document about
the children disclosing?
A I cant
recall at this – –
Q Cant recall.
A – – point, My
Lord.
Q If there was,
that would be significant, correct?
A Yes.
[Emphasis
added]
[249] In giving
that testimony, Mr. Strickland failed to recognize that when J.P.
delivered the December 21 Affidavit, he had assumed responsibility of the day-to-day
carriage of the case because Mr. Tymkow was leaving that day for vacation
and not returning until the New Year.
[250] Moreover,
as a responsible social worker charged with assessing a report of sexual abuse,
Mr. Strickland failed to do anything other than watch the DVD. At no time
did he listen to the audio recordings of the childrens disclosures or consider
the other evidence contained in J.P.s affidavit even though the standard of
care (confirmed by the senior social workers who testified) requires child
protection social workers to treat childrens disclosures of sexual abuse as prima
facie evidence that it occurred.
[251] Neither Mr. Strickland
nor anyone employed by the Ministry or acting on behalf of the Director asked
J.P. why she spoke with her children or the reasons why she made the audio and
video recordings. At no time did they review with J.P. the circumstances in
which the disclosures were made and recorded and the other information that she
learned which caused her to believe that B.G. had sexually abused their
children. The Provinces submission that the Director did not have full
knowledge about the disclosures until the plaintiffs counsel, Mr. Hittrich,
came on the scene in July 2011 ignores the Directors failure to make any
enquiries and her disregard for any information that J.P. provided to Mr. Strickland
in December 2009. Instead, the Director concluded, even before the children
were interviewed by the VPD (which was done in January 2010), that J.P. had
fabricated and then coached the children to make the disclosures.
[252] I find
that Mr. Strickland ignored the contents of the
December 21 Affidavit, the audio recordings, and the documents and
photographs attached as exhibits, and and that he and the social workers
working on the case in his unit discounted them. Moreover, there is no mention
in MIS that J.P. delivered the December 21 Affidavit to the Director nor any
record of its contents. Thus, no one reading the MIS notes would know of it and
its contents unless they read through hard copy documents in the Ministrys
actual file.
[253]
Social workers and Detective Rowley were immediately critical of J.P.s
conduct in speaking to her children about sexual abuse and making video
recordings of their disclosures. In their testimony they demonstrated that they
remain highly critical of her to this day even though they understand that she
was not provided with any instruction or counselling not to speak with the
children about sexual abuse.
[254] The
Province confirmed the point in its written argument, and appeared critical of the
admission of the videos in the evidence even though the Director agreed to the
videos being marked as exhibits in the First Trial.
[255] In the
First Trial, I found that J.P. acted bona fide in her efforts to speak
with her children and then to gather evidence and to speak to the authorities.
At para. 174 of the Reasons, I found that her efforts were as logical and
natural for any highly distressed parent faced with disclosures of sexual
abuse. I accept that in the circumstances of this case, she thought she was
doing what any responsible parent would do to protect their children.
[256] Ms. Robinson
testified that this was an important factor, albeit not the primary reason, for
her in deciding that the children should be apprehended because she thought the
children might suffer emotional harm. No one spoke to J.P., however, to give
her any advice on how to cope with her emerging concerns regarding sexual abuse
or the childrens disclosures. No one responded to J.P.s calls to After Hours
and the VPD on December 17 in which she sought assistance in view of the
childrens disclosures. No one told J.P. that she should not speak with the
children about the sexual abuse. Detective Rowley simply assumed that J.P. knew
not to do it. Individual social workers involved in the case thought, without
checking, that others had provided the caution to J.P. Mr. Tymkow and Ms. Caffrey
assumed that either the other or someone else at the Ministry gave J.P. that
advice and discussed appropriate protocols for her conduct with her. Instead, J.P.
was left on her own. While some of J.P.s efforts to uncover the truth were without
guidance and at times misconceived, throughout it all, J.P.s intentions were bona
fide, and she endeavoured to act in the best interests of and to protect
her children. In my opinion, the Directors ongoing criticism of J.P. for
speaking with her children about the sexual abuse is without merit in the
circumstances.
[257]
On the same day but before she met with Mr. Strickland on December
23, 2009, J.P. met with Detective Rowley and another VPD officer. The nature of
the VPDs investigation and its flaws are described in my findings at paras. 282-323
in the Reasons. The manner in which the meeting unfolded is described in para. 286:
[286] The first interview
conducted by the VPD was with J.P. It was conducted by the Senior VPD Officer
on December 23, 2009. J.P. attempted to provide information about the
disclosures. J.P. appeared distraught in the videotape. Her account lacked
focus (which she explained was due to her lack of sleep). J.P. was not
permitted to tell the Senior VPD Officer all of the information she wished to
provide (and was, instead, told to leave documents for the officers subsequent
review). Most of the questions the Senior VPD Officer put to J.P. during the
interview concerned J.P.s background, her sleep, suicidal ideation, mental
health, emotional stability, and the nature of assistance her family may
provide to her and the children over the holiday break. She asked very few
questions of J.P. about the childrens disclosures. She made no attempt to
determine the source of them. She did not follow up to obtain details
concerning J.P.s statement to her that B.G. had threatened to kill her and
that she was worried for her personal safety. Once the Senior VPD Officer
completed her questioning, another officer asked J.P. some questions about the
childrens disclosures and their visit to Dr. Edamura.
[258] From
watching the videotape of the interview, I found that J.P. did not present as
overtly emotive, illogical, or hysterical during the interview. When questioned
whether she has had suicidal thoughts or of harming herself or her children,
J.P. responded that she loved life and would do anything for her children. She
left feeling as if no one was listening to the evidence she was trying to
present. From watching the videotape of the interview, it is easy to understand
why she felt the way she did. Detective Rowley continued to divert J.P.s
attention away from the information contained in the December 21 Affidavit (including
details of the childrens disclosures of sexual abuse) and instead focused on
J.P.s mental and emotional health. I appreciate that Detective Rowley had only
just received that affidavit from J.P. but she made it clear to J.P. that she
did not want to hear from her about its contents at that time.
[259] When she
left the VPD interview, J.P. did not know when the children were going to be
interviewed by the police or the Director. J.P. went to Mr. Stricklands
office to deliver the December 21 Affidavit. She left his office most upset.
She had no notion of the next steps in the investigation. She and her father
had been warned off calling the VPD any further. Detective Rowley told J.P.
that if she continued to call she would be charged with criminal harassment. She
obeyed and stopped calling.
[260] Not
knowing when the children would be interviewed, and after hearing the children
tell her that they were scared to have access with their father, J.P. decided
to call Mr. Strickland the next day, December 24. She asked for his help to
prevent the access visit. He told her he would not help her, explaining that
she was capable of protecting the children with the aid of the restraining
orders. Mr. Strickland testified that he had no protection concerns
arising from J.P.s mental and emotional stability at that time. No note was
made in MIS of her call.
[261]
However, Mr. Strickland then prepared an alert to After Hours staff
warning them that J.P. was in breach of a court order. The contents of his
alert incorrectly implied that the sexual abuse investigation had been underway
for several months:
ALERT CONTENTS:
Action Requested:
Information only at this time.
Resource (including safe/unsafe houses):
Situation:
DO RHK has been working with this family in the past several
months with respect to allegations from the mother that the father of the
children has been physically abusive to the children, (investigated with no
finding), and that the children have been sexually abused by the father. There
is a police investigation ongoing with respect to these concerns. This date
there was an order of access granted to the father for supervised visitation
with his children. Please see details in order faxed to AH this date.
Mother claims that the children
are not safe in [B.G.]s presence, however vancouver police and the Judge
appear to have a different perspective indicating that access can occur in a
supervised setting. It is likely that the mother will not produce the children
for said access, in which case the mother will be in breach of the current
order.
[262] There was
no evidence led to support Mr. Stricklands advice to social workers that
the VPD was in favour of B.G.s access to the children at that time.
[263] Despite
the Directors policy not to involve herself in matrimonial disputes absent
protection concerns, it is also highly troubling that the issue of compliance
was raised in the alert prepared by Mr. Strickland because the Provinces
witnesses testified that J.P.s failure to provide access to B.G. in December
2009 was not a factor they considered in deciding whether to apprehend the
children. It was not an issue that engaged the Directors consideration yet it
was raised by Mr. Strickland to social workers and After Hours staff,
which I am satisfied was meant to predispose them against J.P.
[264] In the
meantime, J.P. understood from Mr. Strickland that the VPD and the
Director were investigating sexual abuse in respect of all of the children in
light of the childrens disclosures she reported to After Hours on December 17.
She did not know of the After Hours alerts sent by Mr. Tymkow and Mr. Strickland.
J.P. did not know that the Director was not carrying out her own assessment and
investigation into the sexual abuse allegations nor that Mr. Strickland
had disparaged her to Sergeant Pollard at the outset of the police
investigation and internally at the Ministry.
[265] J.P.
reached out for help on Christmas Day, sending out copies of the audio and
video recordings of the childrens disclosures to social workers and police
officers involved in the case and to her family and some friends. She was not
thinking clearly but was acting bona fide in what she thought was
necessary to get help to protect her children. In her covering email, she asked
the recipient in the subject line: Please help me protect my children.
[266] B.G.
called After Hours on December 27 to complain that his children had not been produced
for an access visit. He also said that the childrens physical well-being was
not at risk but that he thought they were suffering emotionally because they
had not seen their extended family over the holidays. He reported that J.P.
suffered from mental illness but advised that J.P.s family would not make the
call because they find it hard to recognize that [J.P.] has a mental illness.
He was told that J.P.s family should call the Ministry if they had concerns.
[267] That
evening, B.G.s friend, S.S.G., telephoned After Hours to report that the
childrens physical safety was in imminent risk. She reported that J.P. was
mentally ill, that she believed J.P. would flee with the children, and that the
family home was boarded up. S.S.G. told the Ministry that J.P. would either
murder the children or flee with them. A drive by of the home conducted by
the police determined that S.S.G. had reported false information. The house was
lit and the drapes were open. As with S.S.G.s prior report in September
concerning physical abuse, the Director knew that her most recent information could
not be relied upon and that, as a friend of B.G.s, she was not objective or
independent. She could not be considered a credible community source of
information.
[268] J.P.s
family were concerned about her emotional state in light of the childrens
disclosures. Following B.G.s call to After Hours on December 27, J.P.s brother,
G.P., called the Ministry on December 28 to report the familys concern for the
location of the children. He was told to call the VPD, which he did. As a
result, on December 28, 2009, Sergeant Singh of the VPD met with J.P. at
Kinkos copy shop in Vancouver for approximately one hour. Sergeant Singh has
considerable experience with hostage takings and negotiating with people in
crisis. He was satisfied with the state of her mental and emotional health. Subsequently,
on December 30, G.P. called the Ministry and spoke with Ms. Caffrey. He
retracted the familys concerns expressed in his earlier call and passed along
the familys belief that the children were safe.
[269] The
Director and Detective Rowley were aware of the conclusion reached by Sergeant
Singh but chose to disregard it. Without speaking to him, they testified that
they placed no weight on his report because his conclusion concerning J.P.s
emotional and mental health reflected only a brief moment in time and he did
not see the children. This is another of many examples that throughout their
dealings with J.P., the Director and her agents paid little or no heed to any
of the evidence that supported the allegations of sexual abuse and supported J.P.s
statements that she did not suffer from any mental illness or emotional
instability.
[270] The
Director apprehended the children on December 30, 2009 on the basis that they were
at risk of physical harm at the hands of J.P. I will review the evidence
regarding the Apprehension in a subsequent section.
[271] Returning
to the sexual abuse investigation, the VPD conducted interviews of BT.G and
K.G. in January 2010. Mr. Tymkow and Ms. Caffrey took turns observing
(through a one-way mirror) those interviews on January 6 and 21, 2010. My
findings concerning the interviews and the information provided by BT.G. and
K.G. are set out at paras. 290 – 297 of the Reasons.
[272]
Mr. Tymkow and Ms. Caffrey heard BT.G. recount how his father
asked him to touch his penis in the shower multiple times and that he touched
BT.G.s once as well. My summary and analysis of BT.G.s sexual abuse
disclosures are set out in para. 291:
[291] During his first
interview, BT.G. confirmed that his father asked him to engage in sexual
touching while in the shower. BT.G. provided information consistent with his
previous disclosures to his mother. I found in watching the videotape that
BT.G. provided context to his statements. He also demonstrated to the
interviewing officer (who was not the Senior VPD Officer), with his hands, how
he touched his fathers penis and illustrated his fathers erection with his
finger. BT.G. repeated his statements during the second interview. He also used
a toy he had brought along with him to demonstrate his fathers erection. He
did not recant in either interview. I found BT.G. to be consistent in providing
his account. He used his own words and was quick to correct any misstatements
or incorrect information. He was also careful to distinguish his first hand
observations from information he was given by his sister. I could not see any
indication of fabrication or coaching.
[273] They also
heard him describe his fathers physical abuse. From those interviews, the
Director was made aware by BT.G. that his father asked him to engage in mutual
sexual touching while in the shower and confirmed physical mistreatment as
well.
[274] K.G. did
not provide any information concerning sexual or physical abuse but did not
recant the disclosures she made in the disclosure videos or the audio
recordings.
[275] I do not
consider Mr. Tymkows and Ms. Caffreys mere observation and
subsequent reports of what transpired to constitute an assessment or investigation
as required by the CFCSA, the Manual, and the Standards.
They simply passed on to Mr. Strickland what they had heard and the views
of Detective Rowley.
[276] In his
testimony, Mr. Strickland minimized BT.G.s statement to the VPD because
it did not involve penetration.
[277] Detective
Rowley advised the Director by letter on February 1, 2010 that the VPD had
concluded its investigation and they had found no evidence of sexual abuse. I
do not accept Detective Rowley testimony that by no evidence, she meant no
evidence to support criminal charges. That distinction is not suggested or
implied in her letter to the Director nor did she ever mention it in her
discussions with the social workers handling the case. To the contrary,
Detective Rowley advised them that she believed there was no evidence at all to
support any of the sexual abuse allegations and that they were or were likely
fabricated by J.P.
[278] It struck
me that Detective Rowley gave that evidence in an attempt to distance herself
from the Directors failure to carry out her own assessment and investigation.
The evidence that I heard from Detective Rowley in this trial made it clear
that from an early stage, she did not believe J.P. and believed that she
suffered from mental health problems. Her approach to the investigation was
adversely affected by Mr. Stricklands advice to Sergeant Pollard. Like Mr. Tymkow,
she found J.P.s calls annoying and did not take her seriously. Detective
Rowleys approach to the investigation, including the interviews of the older
children and their father was soundly criticized in the First Trial by former
RCMP Superintendent Glen Woods (whose evidence I accepted and described at paras. 282
– 323 of the Reasons).
[279] Upon the
conclusion of the VPDs investigation, the Director simply accepted the VPDs
conclusion that there was no evidence of sexual abuse even though the Director
was aware that the criminal standard applicable to the police investigation was
much higher than the risk of harm standard that applied to the Directors
assessment.
[280] A
different and much higher standard is applied to a criminal investigation than the
standard applicable to the risk of harm analysis required in the Directors
assessments and investigations, a proposition with which the Province and most
of the social workers who testified agreed. Mr. Blandford went further and
acknowledged that there is a separate and independent duty on the Director to
investigate. In this case, however, the Director abandoned her statutory
mandate to assess and investigate the sexual abuse allegations. The Director
had a closed mind and was not open to consider information provided by J.P. or
others on her behalf concerning the sexual abuse allegations and her perceived
mental and emotional health issues. The Director acted in breach of the
standard of care of a reasonable social worker.
[281] After the
Apprehension, Mr. Strickland instructed a new intake, Intake 5, to be
opened to investigate emotional harm caused to the children by J.P. He
arbitrarily selected the opening date to be shown as B.G.s call on December 27
(and not, as he suggested at one point, on December 30 as a result of Detective
Rowleys phone call) where B.G. reported concerns about the childrens
emotional and psychological well-being for not having seen their extended family
over the holidays. Thus, Mr. Strickland opened Intake 5 relying on the
veracity of the report of the person accused of sexual abuse. According to the
Provinces standard of care expert and Ms. Caffrey, there was no reason to
open a new intake.
[282] Mr. Strickland
signed off on Intakes 4 and 5 and closed them in February 2010. All intake
documents contain a standard question when they are being signed off and
require the signing social worker to state whether there was evidence of sexual
and physical abuse. The document simply calls for a positive or affirmative
response. Despite the evidence provided by J.P. in her December 21
Affidavit, Dr. Edamura, and J.P.s sister concerning sexual abuse, the
intake documents were signed off by Mr. Strickland stating there was no
evidence of sexual abuse.
[283] I reject
as not credible the explanation that the MIS system is a binary one so that the
intake documents could only state yes or no to evidence of sexual abuse.
The Director had a body of evidence suggesting sexual abuse, but Mr. Strickland
and the members of the Intake team did not regard any of it as evidence.
[284]
At trial, however, Mr. Strickland conceded in cross-examination
that there was in fact evidence of sexual abuse, but only insofar as BT.G.s
disclosures to the VPD were concerned, and he agreed that the intake documents
should have reflected it. Mr. Strickland remained steadfast in his view,
however, that there was no other evidence of sexual abuse, even though he was
aware of the information in the December 21 Affidavit, from Dr. Edamura,
and from J.P.s sister:
A
So, you know, a better – – you know, yes I
think probably should have been the answer, but with a caveat around, you know,
the – – the disclosures pertaining to [BT.G.] were persistent.
Q Yeah. Well, sir, wouldnt you agree with me
that it should state evidence of sexual abuse?
A Well, thats what I mean by yes, but – – but
– – but with – – with the – – with a caveat sort of as Jeff has added it at – –
at the end of the – – at the intake there.
Q All right. Sir, you werent being asked to
make a conclusive finding; correct? When – – it says findings – –
A Yes.
Q – – as a responsible social worker you – –
normally if theres evidence of sexual abuse you would indicate there is
evidence; correct?
A Right. We were
still – – I mean, those [BT.G.]s disclosure, I think thats noted here, and
its the persistence of his disclosures were referenced here for the purpose of
bringing attention to this issue for the – – for further social workers, and
given that we were going to – – theres also a notation that were going to be
following up with Childrens Hospital. You know, as I say, its – – its a
binary, yes, there was evidence or, no, there was no evidence. As I say, a
better answer would have been there was evidence as it pertained to [BT.G.] but
not further than that.
[Emphasis
added]
[285] For
reasons unexplained, Detective Rowley, Mr. Tymkow, and Ms. Caffrey
determined that BT.G.s disclosures lacked sufficient context and did not
provide evidence of sexual abuse.
[286]
Unfortunately, the VPDs typed transcript of BT.G.s interviews did not
accurately record his disclosures. Instead, the transcript suggests that
touching in the shower occurred only once. Thus, without being present at the
interviews or having watched the videotape of them, anyone reading through the
transcript would not appreciate the contents and gravity of his disclosures.
[287]
To deal with BT.G.s disclosures, a note was added to Intake 4 that
referred to BT.G.s disclosure to the VPD but it minimized its effect. After
describing at some length the inadeqaucies of the evidence provided by J.P. in
respect of the sexual abuse allegations (and that the video disclosures were
believed to be the result of fabrication), Mr. Tymkow added (all entries
in MIS are in capital letters):
HOWEVER [BT.G.] DID DISCLOSE
SEXUAL ABUSE DURING POLICE INVESTIGATIONS. A REFERRAL WAS MADE TO DR. KOT
AT BC CHILDRENS FOR FOLLOW UP. DR. KOT WITH [sic] SEE [BT.G] AND [K.G].
[288] As I
discuss in the next section, in making those notes, Mr. Tymkow incorrectly
described the purpose of Dr. Kots retainer. As well, he did not note the
opinion that he and Mr. Strickland shared, that there was insufficient
context from BT.G.s disclosure for it to be evidence of sexual abuse.
6. Drs. Kot and Eirikson
[289] The only
investigation the Director did undertake was to determine what emotional damage
had been caused to the children by J.P. in having discussed sexual abuse with
them (including making the audio and video recordings of their statements) and
to determine whether B.G. required support services in order to parent the
children (in light of the statements made by BT.G. to the VPD about the
possible sexual touching in the shower and the physical abuse).
[290] It is not
correct to say, as the Province asserts, the Director investigated the reports
of sexual abuse because external medical advisers, Drs. Kot and Eirikson, were
retained to investigate the reports of sexual abuse made by J.P. to the
Director.
[291] Dr. Kot
became involved in the case as a result of a referral from Dr. Jain in
December 2009, before the Apprehension. She was not retained by the Director or
the Ministry. By the time Dr. Kot became involved, the Director had
apprehended the children. Dr. Kot met with the two older children, BT.G.
and K.G. Following the Apprehension, Dr. Kot communicated with the
Director who was acting as the childrens guardian. Dr. Kot reported the
results of her work to the Director. The Province acknowledges that the
Directors involvement with Dr. Kot was limited.
[292] There was
a distinct lack of clarity and no agreement in the evidence of the social
workers and the Directors external counsel, Ms. Feenie, regarding the
purpose and nature of Dr. Kots role beyond the initial referral to her by
Dr. Jain. Dr. Kot was not called to testify in this trial or the
First Trial, and the evidence concerning her involvement comes from documents
in the Directors files and from social workers involved in the case. In
looking at all of the evidence, including Dr. Kots own reports, I have
determined that by the time Dr. Kot became involved, the Director wanted
her to assess whether the children were suffering from emotional harm, as well
as their emotional and behavioural needs going forward. Dr. Kot was not specifically
asked to investigate the veracity of the sexual abuse allegations. Mr. Strickland
admitted that he wanted her to provide an opinion about the childrens
emotional well-being as a result of being exposed to concerns regarding
sexual abuse, by which he meant concerns expressed to them by their mother.
[293] I am
satisfied that by the time Dr. Kot was reporting to the Director, Mr. Strickland
was looking for evidence of emotional harm J.P. caused to the children through
her continued efforts to prove sexual abuse. As I have said, I find that neither
Mr. Strickland nor Mr. Tymkow and Ms. Caffrey believed B.G. had
caused any emotional harm to the children because they were convinced that J.P.
had fabricated the allegations of sexual abuse and B.G. was innocent.
[294]
I have also determined that the Director did not heed Dr. Kots
findings that K.G. displayed highly inappropriate sexualized knowledge or Dr. Kots
opinion that one possible source of K.G.s inappropriate sexualized knowledge
and behaviours was that she was sexually abused. In her report concerning K.G.
dated April 28, 2010, she wrote:
In the area of sexual behaviour, sexual knowledge or
interest, [K.G.] has demonstrated heightened awareness. She focused on
penises of the mommy pig during child-directed play. She used the words
testicles and vagina during the Touch Survey (she was not able to indicate
where vagina is). She was reported to have pulled off her own pants and pants
of her sibling(s)/cousin(s) in the relatives home. Looking at any one of
[K.G.s] behaviours or comments individually, she may be comparable to age
peers in sexual knowledge or interest or behaviour. However, when the whole
picture is considered, she seemed to be sensitized to sexual information. It is
usually hard to determine the source of the sexual information.
[K.G.s] heightened awareness of sexual knowledge may
indicate a higher risk that sexual abuse may have occurred. However, it
could also be an indicator of a caregivers heightened anxiety about sexual
abuse and repeated questions or conversations of sexual abuse.
Similarly, [K.G.s] sexual
behaviour of pulling off her pants and others pants may indicate a higher risk
that sexual abuse may have occurred. However, it could also be an indicator
of insufficient structure and limit setting.
[Emphasis
added]
[295] Dr. Eirikson
was retained by the Director in late January 2010, when the file was still with
the Intake team, to carry out a parental capacity assessment of both parents.
He was not retained to investigate the veracity of the sexual abuse allegations
reported by J.P. The Directors retainer letter instructed him to answer
questions (which were drafted by Ms. Caffrey with oversight from Mr. Strickland).
No questions were asked about the reports of sexual abuse made by J.P. Instead,
two questions (amongst seven) were posed to Dr. Eirikson that arose from
BT.G.s disclosure to the VPD. The Director was uncertain if those disclosures
meant that B.G. was teaching his son to wash himself or something more. Dr. Eirikson
was asked to consider whether B.G. was at risk to sexually abuse the children
or had an undue sexual interest in children, and if so, what treatment would
be recommended? The questions put to Dr. Eirikson were framed in a way
that revealed the Directors mindset that if any such interest were found, then
it could be remedied with support services. The other questions addressed the
emotional and psychological capacity of both parents to parent and care for the
children on their own without daily support from the family and professionals.
[296] There was
no intention to ask Dr. Eirikson to provide an opinion about the veracity
of the sexual abuse allegations advanced by J.P. Mr. Strickland said that
experts answer only the specific questions put to them. He admitted in
cross-examination that he did not specifically ask Dr. Eirikson to opine
about the veracity of the sexual abuse allegations. His explanation that the
questions have to be broad enough to elicit a wholesome answer, but specific
enough to steer the assessor in the right ballpark for the manner in which the
questions were framed to Dr. Eirikson lacks credibility.
[297] I found
that Dr. Eiriksons parental capacity assessment concluding that B.G. was
fit to parent and that J.P. was essentially not, was deeply flawed for many
reasons. Among them I found (Reasons, paras. 381- 414) that his view of
the case was coloured in part by the information he received from the Director.
He misunderstood the Directors purported basis for the Apprehension, thinking
that the children were apprehended because J.P. circulated the videos of the
two older childrens disclosures by email. Faced with J.P.s determined focus
on sexual abuse of the children, Dr. Eirikson developed an adverse view of
J.P.s motives and mental health.
7. Transfer of the File to the Family
Services Team
[298] Bruce
Blandford was the team leader of the Family Services team. I accept his
evidence that he had been told by Mr. Strickland when the file was
transferred that all of the investigative work into the sexual and physical
abuse allegations had been completed by his team. Mr. Blandford would not
have accepted the file otherwise. He was also told that there was no merit in
the sexual abuse allegations and that in respect of the physical abuse
allegations, B.G. had some minor issues surrounding discipline of his children
that could be remedied with support services provided to B.G. by the Director.
[299] Mr. Blandford
did not read any of the documents in the file other than the file transfer
report, having accepted Mr. Stricklands assurances about the
investigation carried out by the Intake team.
[300] Mr. Strickland
did not tell Mr. Blandford about any of the prior history other than the police
believed that J.P. had coached the children to make false disclosures and that
the children were apprehended because of concerns over J.P.s mental stability.
The file transfer memo from the Intake unit to the Family Services unit did not
mention the childrens disclosures in December. There was no reference to
J.P.s call to After Hours on December 17. Instead, it referred to J.P.s
mental health issues and the emotional impact on the children from J.P. having
made the children submit to the videotapes. Thus, when Mr. Blandford and
his team accepted the file they viewed it through a grossly distorted and
factually incorrect lens.
[301] Ms. Caffreys
evidence that the Director investigated the sexual abuse allegations once the
VPD completed its investigation is inconsistent with what in fact occurred. Her
role in the case essentially ended with her work on the draft versions of the
report to the Provincial Court in respect of the Apprehension Proceeding. She
was not directly involved in the case after she completed her work on that
document. Her view that the Director continued to investigate the sexual abuse
allegations once the VPD concluded its investigation is, unfortunately, wishful
thinking on her part.
[302] I also
have significant reservations about the overall reliability of much of her
evidence. As I will later discuss, some of the contents of the draft report to
court that she prepared were clearly inconsistent with events that occurred
during her day-to-day involvement with the case. Other parts were inconsistent
with information contained in the Ministrys own files and should have been
apparent to Ms. Caffrey if she reviewed the file. Ms. Caffrey also
failed to carry out her obligation to take notes of her meeting with Mr. Strickland
and Ms. Robinson on December 30, 2009, where the decision to apprehend was
made. Her approach to her tasks was, at a minimum, neglectful, which has in
turn caused me to be concerned about the integrity of her account of events.
[303] I also
reject Xeni Pops evidence that she continued to assess the veracity of the sexual
abuse allegations when new information was provided to her. Her testimony
concerning her purported ongoing investigation into those allegations does not
reflect her ongoing conduct. I found her to be unduly supportive of B.G. to
this day and unreasonably harbouring animus towards J.P., which causes me to be
concerned about the reliability and credibility of her evidence. I accept that
early on in her involvement with the file, Ms. Pop did consider whether
there was any truth to the sexual abuse allegations, concluded there was not,
and then proceeded to follow the Directors plan to support B.G. To this day,
and in spite of claiming to have had an open mind throughout and having wanted
an independent third party to determine the veracity of the sexual abuse
allegations, Ms. Pop will not accept the outcome of the First Trial and
the Directors decision to withdraw her protection concerns about J.P. Ms. Pop
testified that she continues to doubt that B.G. sexually abused the children.
[304] I also
found Ms. Pop to be either desensitized to or intentionally and
inappropriately dismissive of highly disturbing evidence that should have
caused her to question the Directors plan to support custody to B.G. Quite
surprisingly, Ms. Pop testified that she is not troubled by the highly
graphic blotter drawings that she knows B.G. prepared in his twenties and held
onto in his keepsakes. Those drawings show women being subjected to sadistic
sexualized behaviour and physical violence. She has read the Reasons where, at paras. 238-249,
I describe the blotter drawings and the evidence concerning them, including Mr. Colbys
testimony that they are graphic, violent, and perverse and would cause
him concern about B.G.s propensity for abhorrent behaviour or for disturbed
fantasies. It was only when pressed in cross-examination that she conceded that
they may be a factor to consider when assessing B.G.s fitness to parent.
[305] Finally, reports
of the childrens sexualized behaviours prepared by supervised access workers
and delivered to the Director (some of them are described in para. 204 of
the Reasons), should have but did not have any impact on the Directors
assessment of the veracity of the sexual abuse and physical abuse allegations
or on the Directors plan to support B.G.
8. Summary
of Findings Regarding Sexual Abuse Assessment and Investigation
[306] To
summarize, I have determined that:
(a) Mr. Strickland approached
J.P.s reports of sexual abuse of all of the children with a closed mind and
did not carry out a proper assessment or investigation.
(b) Mr. Strickland had no reasonable
basis upon which to communicate the information he did to Sergeant Pollard.
(c) The information Mr. Strickland
communicated to Sergeant Pollard had an adverse effect on the VPDs view of the
sexual abuse allegations and their approach to the investigation.
(d) The Intake teams views of J.P., her
motives, and her reports of sexual abuse of the children were adversely
affected by Mr. Stricklands views.
(e) Both the Intake team and the Family
Services team did not assess information relevant to the reports of sexual
abuse that were coming in to the Ministry from various sources, including the
children themselves, J.P.s sister, and Dr. Edamura.
(f) The Director never formally
undertook her own assessment and investigation into the sexual abuse
allegations. Rather, the entirety of the investigation was left to the VPD, which
the Director knew operated on a different and much higher standard of assessment.
(g) The Director had a closed mind
and was not open to considering information provided by J.P. or others on her
behalf concerning the sexual abuse allegations and her perceived mental and
emotional health issues.
D. The Breach of the Standard of Care Claims
[307] Having
made the relevant findings in relation to the sexual abuse investigation, I
turn now to identify the governing standard of care expected of a reasonable
social worker and to determine whether the Directors conduct met that
standard.
[308]
The Manual states the following in relation to the assessment of
reports of the sexual abuse of a child (at 3.1-8):
Assessment of sexual abuse or exploitation
The director determines whether a child has been sexually
abused or exploited by the childs parent by taking into account the general
considerations under this section and by assessing the following factors and
any other factors that are relevant to the childs circumstances:
·
the childs disclosure;
·
the medical evidence;
·
the parents conduct;
·
the statements of witnesses; and
·
whether the child is displaying behaviour of a sexual nature
inappropriate for the childs age.
[309] At the
forefront of this list of factors is the childs disclosure. Social workers who
testified as part of the Provinces case, such as Ms. Lejko, Ms. Robinson,
Mr. Strickland, and the Provinces standard of care expert, admitted the
Director is to treat a childs disclosure of abuse as prima facie
evidence that abuse occurred.
[310] The Manual
at 3.1-11 states that the Director determines whether a child has been
sexually abused by assessing enumerated factors relevant to the childs
circumstances which include the childs disclosure.
[311]
CFS Standard 16, which is entitled Conducting a Child Protection
Investigation, provides additional details. Under the heading Intent, the Standard
explains:
The focus of an investigation is
on thoroughly gathering and assessing the information about the alleged
incident and risks of future harm. Direct interviews with the child and family
are essential to the investigation process, and where required, are coordinated
with police and other involved agencies and persons.
[312] The Standard
instructs that if a decision to investigate is made following a thorough
assessment of the information in a child protection report, the investigation
should include, at a minimum, the following:
(a) seeing
and interviewing the child and all other vulnerable children in the home;
(b) directly
observing the childs living situation;
(c) seeing
and interviewing the parent;
(d) reviewing
all relevant and necessary information related to the report, including
existing case records and files;
(e) obtaining
information from people who may have relevant knowledge of the family and/or
child; and
(f) arranging
a medical examination of the child as required by the childs circumstances.
[313] The Standard
advises that the Director should work with the family to the fullest extent
possible throughout an investigation.
[314]
Both the Manual and the CFS Standards provide guidance as
to the necessary interactions between the Ministry and police when protection
concerns are reported, as well as the nature of the information that should be
communicated. According to the Manual, 3.4-14, when the Director has
information indicating abuse of a child, she is to immediately notify the
police. If disclosure of information is necessary to ensure the childs safety
or well-being, the Director provides the police with information about: (a) the
childs circumstances; (b) the name of the person alleged to have caused the
harm; and (c) the results of the Directors assessment or investigation of the
childs need for protection. The Manual continues:
The director gives paramount
consideration to the childs safety and well-being. The director cooperates
with the police in their investigation and may refuse to disclose information
to a parent or family member if the police are conducting or contemplating a
criminal investigation into the matter. However, the directors investigation
proceeds to ensure the childs safety or well-being.
[Emphasis
added]
[315] I agree
with the Provinces submission that it was appropriate for the VPD to take a lead
role in the sexual abuse investigation prior to the Apprehension, but as I have
determined, here, in breach of the standard of care the Director did not carry
out any proper independent assessment or investigation of the reports of sexual
abuse, including those disclosed by the three older children on December 17.
The Director disregarded information presented to social workers from Dr. Edamura
and L.P., whom Ms. Grunberg and social workers admitted should have been
spoken to, and also failed to consider the information contained in the
December 21 Affidavit that supported the reports of sexual abuse beyond a
cursory review of the document. Neither Mr. Strickland nor any other
social worker acting on behalf of the Director listened to or considered the
audio recordings of the children that were attached to the affidavit. The
Director failed to consider the childrens disclosures as prima facie
evidence of sexual abuse and before any of the children were interviewed, and
without having asked J.P. any questions concerning the circumstances in which
they were made or in which the audio and video recordings were made, concluded
that the disclosures were fabricated and coached.
[316] I
interject at this junction to comment upon the lack of key notes in this case,
including surrounding the decision to apprehend the children. The Director and
her agents are required to document all relevant information and actions taken
in providing service as required under the CFCSA: CFS Standard 1,
24. All significant information and actions taken must be documented,
including:
(a) child protection reports,
and actions taken in response to them;
(b) assessments,
service provision and investigations, and actions taken in response to them;
(c) major decisions and
reviews; and
(d) telephone
calls, including all information on what action was taken in response to the
call or request.
[317] The
information contained in the files and case records is to be relevant,
accurate, objective, and complete. It is to include "all records about a
child or family, including file recordings, correspondence, assessments, court
documents, medical documents and reports, and other professional reports about
the child or family in the file": CFS Standard 24. Records
concerning the Intake teams activity are to be recorded in MIS.
[318] The
requirement to maintain records was not adhered to. There are many instances
where Ministry staff failed to document their decisions. The meeting amongst
Ministry staff who made the decision to apprehend the children was not
recorded. Mr. Strickland did not make notes of his communications with Sergeant
Pollard and Detective Rowley. Nor were many of the Ministrys dealings with
J.P. recorded. In other instances, key events such as Dr. Edamuras letter
and the After Hours call from J.P. on December 17, 2009, were not recorded in
MIS but instead left in the file so that other social workers reviewing the
file would only know of their existence if they hunted through the entire hard
copy of the file.
[319] I disagree
with the Province that requiring notes to be kept is a standard of
perfection. It is the Ministrys own requirement of its employees and it is
standard practice to be followed by social workers.
[320] The
explanations provided by social workers in this case for the absence of notes
is not only an indicator of sloppy practice by the social workers, the lack of
any explanation for keeping notes, particularly of key events, adversely
impacts upon the credibility and reliability of the evidence given by
individuals who were responsible to make notes.
VII. THE
APPREHENSION
[321] The
plaintiffs claim that the Director negligently and wrongfully misapprehended
the children on December 30, 2009. The particulars of that negligence include
the following:
(a) Mr. Strickland
mischaracterized information he received from Detective Rowley and used that
information to create an emergency situation to justify removal of the
children;
(b) the
Director ignored critical information from J.P., the police and social workers
in the period before the Apprehension; and
(c) the
Director failed to ask J.P. to see the children yet used the fact that no one
had seen the children as a primary basis for the Apprehension.
[322] Some of
these particulars also found claims in misfeasance.
A. Governing Standards
[323]
The CFCSA, Manual, Standards, and admissions made
by Ministry employees during this trial establish that removing (or
apprehending) a child from their existing family environment is a measure of last
resort. Section 30(1) of the CFCSA provides:
30(1) A director may,
without a court order, remove a child if the director has reasonable grounds to
believe that the child needs protection and that
(a) the childs health or
safety is in immediate danger, or
(b) no other less disruptive
measure that is available is adequate to protect the child.
[324] CFS
Standard 19, Removing a Child, reiterates the legislative grounds for
removal: unless a child is in immediate danger, all options for keeping the
child safe other than removal must be fully explored and implemented where
available and adequate.
[325] An
apprehension, which is carried out without prior judicial authorization, must
comply with the principles of fundamental justice: Winnipeg Child and Family
Services v. K.L.W., 2000 2 SCC 48 at para. 87. Apprehension is a
measure of last resort where child protection authorities have reasonable and
probable grounds to believe that a child is at risk of serious harm: Winnipeg
Child and Family Services at para. 11.
[326] The Manual
(3.18-3) instructs that the Director is to determine whether a childs health
or safety is in immediate danger by considering such factors as whether: (a) the
child has suffered a serious injury due to abuse or neglect and is at risk of
further harm; (b) the child needs immediate medical attention and the Director
is unable to locate the parent; (c) the child displays or expresses extreme
fear of returning to the care of the childs parent; (d) the parent does not
provide an adequate explanation of the childs injury; (e) the childs parent
refuses to meet with the Director to discuss the childs immediate safety
needs; or (f) there is a likelihood that the childs parent will leave the
community with the child.
[327] The CFCSA,
the Manual and the Standards all describe various less disruptive
alternatives to apprehension. According to the Manual (3.18-4), they
include:
(a)
a support services agreement with the parent under s. 5 of the CFCSA;
(b)
a voluntary care agreement with the parent for the child to reside out
of the home under s. 6 of the CFCSA, or alternatively with
relatives or friends;
(c)
an agreement with the parent to ensure that a person who has caused the
childs need for protection has left or will leave the home;
(d)
in situations of family violence, an offer of assistance to the
non-offending parent and child to leave the home for a place of safety;
(e)
applications to court for: an order compelling a recalcitrant parent to
produce the child for an interview or medical examination under s. 17; a
protective intervention order under s. 28; an order authorizing health
care for the child under s. 29; or a restraining order under s. 98;
and
(f)
a referral for the parent to mediation or other available alternative
dispute resolution mechanisms as a means of reaching an agreement to keep the
child safe.
[328] In
assessing whether less disruptive measures to apprehension are adequate to
protect the child, the Director is to consider such factors as:
(a)
the effectiveness of previous services provided to the parent;
(b)
the nature of the parents circumstances that could limit the effectiveness
of the services;
(c)
the parents capacity and ability to participate in the services;
(d)
the likelihood of the parents cooperation;
(e)
the information available to the Director about the ability, willingness
and suitability of relatives or others to protect the child; and
(f)
whether the services or measures are likely to address the familys
circumstances.
(Manual, 3.18-4)
B. Review of Findings
[329] Detective
Rowley testified that when she returned to her office on December 27 after
a few days off during the holidays, she was displeased to have received an
email from J.P. attaching the videos of the childrens disclosures. She thought
it was highly inappropriate for J.P. to speak with her children about sexual
abuse in front of a video camera and then circulate the videos to family,
social workers, police, and friends. Detective Rowley tried to call J.P. but
found her cellular voicemail full. Thinking that J.P. had not called her (even
though she had warned J.P. that she could be charged with criminal harassment
if she continued to call), Detective Rowley concluded, unreasonably in my view,
that J.P. was withdrawing and harbouring the children. Detective Rowley did
not know that J.P. had called the Director and the VPD on December 17 to ask
for assistance because the older children were disclosing sexual abuse, nor did
she know that no one from the Director or the VPD had responded.
[330] The
Director had not formed the opinion that J.P. was withdrawing or harbouring the
children. The Director had already discounted a report from B.G.s friend, S.S.G.,
that J.P.s house was boarded up following an inspection of the home by the
VPD. J.P. was with the children at a Holiday Inn in Richmond, near a child
amusement facility, over the holidays. J.P. told the Director that she did not
want her mother and other family members speaking with the children about their
disclosures before they could be interviewed by the VPD. J.P. had also explained
her rationale to the Director before the Apprehension. The Director also knew
that J.P. was heavily involved in preparing court documents for hearings in
this Court that were ongoing in December. One of the social workers testified
to a report of a pile of mail that was inside the front door of J.P.s house
(observed from a glass window from the front of the house), which, in my
determination, was readily explained by her absence from the home and her
engagement with the family law action.
[331] The
Director was also aware from the follow-up call to the Ministry by G.P. that
J.P.s family no longer had any concerns about the safety of the children. Both
the Director and Detective Rowley also knew that J.P. had been interviewed by
the VPDs Sergeant Singh on December 28, 2009. They knew that Sergeant Singh
had determined that J.P. did not suffer from any mental health issues.
Moreover, Mr. Tymkow had no protection concerns in connection with J.P.s
mental and emotional health, and his view had not changed by the time he left
the office for vacation on December 23. Mr. Strickland took over Mr. Tymkows
role as the social worker in charge of the case, although he enlisted Ms. Caffreys
assistance.
[332] Nevertheless,
against this backdrop, a decision to apprehend the children was made on the
morning of December 30. The purported basis for the Apprehension was that the
children were in immediate danger of physical harm from their mother who was
suffering from mental health issues.
[333] The
decision to apprehend the children was made during a morning meeting between Mr. Strickland,
Ms. Robinson (who was a Deputy Director at that time), and Ms. Caffrey.
No notes exist of the meeting because, Ms. Caffrey testified, none were
made. In spite of her obligation as the junior social worker in attendance to
take notes, Ms. Caffrey claims that she did not take notes. Despite the
absence of notes, I have been able to determine the key aspects of their
discussion from the other evidence, including that of the three participants.
[334] All three
social workers testified that the Apprehension was the result of a phone call
made by Detective Rowley to Mr. Strickland earlier that morning that
tipped the balance. According to Ms. Robinson and Ms. Caffrey, Mr. Strickland
led them to believe that Detective Rowley had advised him that J.P. was at risk
of killing herself or the children or both. They further said that Mr. Strickland
led them to believe that the children should be apprehended without delay. All
three social workers testified that but for that call to Mr. Strickland, the
Apprehension would not have occurred. According to Mr. Strickland, his
hands were tied as a result of the call. The Director had no choice, he
suggested, other than to apprehend the children immediately. Mr. Strickland
did not base his information and advice to Ms. Robinson on S.S.G.s
statement on December 27 that J.P. would murder or flee with the children. She
was not considered to be a credible community source, the veracity of the
information she reported had been shown to be untrue, she was known to be a
close friend of B.G.s, and Mr. Strickland had not previously acted on her
advice or information.
[335] Mr. Strickland
did not deny Ms. Caffreys evidence that he used the word kill regarding
the children (or words to convey that effect) in his meeting with Ms. Robinson
and Ms. Caffrey. He agreed that her recollection of their meeting would be
better than his.
[336]
In his evidence in chief, Mr. Strickland testified that Detective
Rowley advised him that J.P. was a risk to the physical well-being and safety
of her children. She told him that she was concerned of the potential for
[J.P.] to harm herself and harm her children and we were very concerned about
that as now we have an immediate safety concern thats being reported to the
Director about the childrens welfare. He elaborated, explaining:
A She – – she
spoke a little bit to me about sort of in language, like, in her experience,
these are the types of cases where this – – the potential for these things to
happen is very real.
[337] In
cross-examination, Mr. Strickland added that in acting on Detective
Rowleys information and in turn recommending apprehension to Ms. Robinson,
he was responding to what Gwen Rowley independently phoned to tell me. He
also said, I hadnt reached any of those conclusions myself.
[338]
Mr. Strickland admitted in cross-examination that Detective Rowley
never mentioned homicide in their discussions that led up to the Apprehension,
saying only that she might have mentioned suicide:
Q All right. So did
Gwen Rowley mention anything about – – specifically about homicide, suicide,
killing, these words come out of her mouth?
A Homicide, no.
Suicide, perhaps. Um, I believe I recall her saying that she was concerned
that she may end up harming the children and I cant be – – I cant be certain
that she said killing the children but certainly there was grave consequences
to what she was alleging.
[Emphasis
added]
[339]
He also could not come up with a reason why J.P. would harm herself or
her children. He could not identify a motive for her to hurt them:
Q So, okay, lets
look at this, her inclination or the risk of [J.P.] harming herself or the
children. Lets just focus on that for a moment. What motive would [J.P.] have
had for harming either herself or her beloved children for whom she was – – she
was trying to protect? Lets have an answer to that. What – – what possible
motive would she have had?
A Well, its
difficult for me to tell. I mean, I dont – – I dont know why – – theres
things that I think that I dont know about why Detective Rowley called me and
told the things that she did. But my duty is to respond to those – – those
assertions. So its very difficult for me to answer that question.
Q But you dont
really have a motive?
A Uh – –
Q Cant think of
a motive – –
A – – perhaps, I
dont know. I mean, I would – – its not really my place to hazard an answer
to that question.
[Emphasis
added]
[340] Mr. Strickland
also admitted that J.P. had never been asked by the Ministry to produce the
children prior to the Apprehension and that he knew the reason why J.P. did not
want anyone seeing her children at that time – because she was waiting for them
to be interviewed by the VPD.
[341] Detective
Rowley testified that she telephoned Mr. Strickland at 9:40 a.m. on
December 30 and left a message for him to call her back. He did, at 11:00 a.m.
According to Detective Rowley, she called Mr. Strickland to share her
concerns about J.P.s silence and that she might be withdrawing and harbouring
the children. Detective Rowley thought that J.P.s mental state was
deterioriating because she believed that J.P. thought that no one was listening
to her. It did not occur to Detective Rowley that J.P. had stopped calling her
because she had been warned that her continued calls to the VPD could result in
criminal harassment charges. Detective Rowley also assumed that another
indicator of J.P. withdrawing was her full voicemail message box when she tried
to call her. She was further concerned that J.P. might flee with the children
to keep them from their father and she notified the border guard services
accordingly. Detective Rowley told Mr. Strickland that if he wished to apprehend
the children then she would support his decision.
[342] Although
Detective Rowley testified that she had a gut fear (based on a discussion
with her superior) that J.P. might harm the children, she did not say, when
giving her evidence in chief or in cross-examination, that she communicated
that concern directly to Mr. Strickland.
[343] When Mr. Strickland
rang off the telephone with Detective Rowley, he went to meet with Ms. Robinson
and Ms. Caffrey and alarmed them by misrepresenting a selective portion of
his discussion with Detective Rowley. As I described, he led them to believe
that J.P. was at risk of killing the children or herself or both. Mr. Strickland
did not tell Ms. Robinson and Ms. Caffrey about J.P.s calls to After
Hours or that the children were disclosing sexual abuse. He also did not tell
them about his telephone call with Sergeant Pollard on December 7. The
Apprehension was authorized due to the emergent and alarming picture portrayed
by Mr. Strickland.
[344]
Detective Rowley did not use the words kill or homicide or suicide
when recounting her discussion with Mr. Strickland during her testimony.
The only time the word kill was used in the course of her evidence was when she
responded to two leading questions put to her in her evidence in chief. The
first time it was used, the question presumed she had used that word when
speaking with Mr. Strickland:
Q Detective Rowley,
before the lunch break you said something that I wanted to explore a little bit
more. You said, and forgive me if my wording is not exactly the same as what
you said, but said something to the effect of you were worried that [J.P.]
might kill the children?
A Yeah.
[345] In the
circumstances, I can give no weight to the answer, particularly where the
question and answer followed on prior objections from plaintiffs counsel to
leading questions put to Detective Rowley and, ultimately, a warning that
leading questions could adversely affect the weight of Detective Rowleys
evidence. The answer also does not accord with the overall tenor of Detective
Rowleys own evidence and her notes of the discussion she had with Mr. Strickland.
[346]
When explaining the circumstances that led up to the Apprehension in his
report to Mr. Tymkow dated December 31, 2009, Mr. Strickland was more
muted in his explanation, and led Mr. Tymkow to believe that Detective
Rowley had suggested that J.P. was at risk to harm herself or the children:
I discussed the concerns therein
with Sheila Robinson, and after receiving a call from Detective Gwen Rowley who
stated that she was concerned that the mother was now in her view a risk to
harm herself and the children, and in reviewing the other information we have
gathered over the course of our involvement with the family we determined that
the children should be removed. This occurred Dec 30 as per the AH memo that I
have placed in your box. Please review all this material as you will need to
put together the report to court for the list on Wednesday. I can assist with
this as well.
[347] When asked
what other information he received from Detective Rowley to suggest that J.P.
might harm the children, Mr. Strickland referred to information he
received from S.S.G., to the effect that the children looked gaunt in the video
recordings of their disclosures, which he said was as though they were under
some kind of duress. In doing so, Mr. Strickland was, I find, grasping
for evidence to support his statements in his meeting with Ms. Robinson
and Ms. Caffrey. He knew that S.S.G. was a close friend of B.G.s and that
the accuracy of information she previously reported had been rejected. As well,
assuming the children did look gaunt, it would not, in the circumstances, support
a conclusion that J.P. might harm or kill them.
[348]
Mr. Strickland did not make notes of his conversation with
Detective Rowley, even though he was effectively acting as the social worker in
charge of the case in Mr. Tymkows absence. He offered no reason for
failing to make notes of such an important phone call:
Q Okay. Now, Mr. Tymkow testified that you
kept notes. What do you say to that?
A Uh, I didnt keep – – I dont keep notes
as the supervisor for the office. Occasionally I will make a very small
notation in my diary as to phone numbers and appointments and things to do, et
cetera. Events that I feel are appropriate to bring up with social workers but
I dont take case notes. Thats the responsibility of the social workers.
Q When you were asked this question at your
examination for discovery, I believe your evidence was that you had very few
notes.
A Yes.
Q Okay, so that
implies that you had some notes?
A What I – – what
I mean is, by few notes is that I would maybe, as a point of reference in my
consultations with staff, in order to help refresh my memory, I may jot down
very small pieces of information to assist my supervision of the staff.
Q So if there
was a very important piece of information, so just talking to Detective Gwen
Rowley about the safety of the children, would that be something that you would
make a note of?
A Not
necessarily, no.
Q On this
particular case, did you?
A No, I dont
think — I dont believe I did, no.
[Emphasis
added]
[349]
Fortunately, Detective Rowley did make notes of their conversation. In
considering the notes in relation to her evidence, I am satisfied that
Detective Rowleys notes of her discussion with Mr. Strickland provide a
reliable account of her conversation with Mr. Strickland. They do not make
any reference to homicide, suicide, or a risk that J.P. could flee with the
children. Instead, Detective Rowleys notes reflect her concern over what she
though was J.P.s increasing paranoia and her concern that J.P. was withdrawing
and harbouring the children. She did not tell Mr. Strickland that J.P.
could harm, murder, or kill the children or commit suicide or kill herself. There
is also no reference to the video and audio recordings J.P. made of the
childrens disclosures let alone of any concern Detective Rowley had about
their circulation. Her notes in the VPD files state:
On 09.12.30 at 1100 hrs Det
Rowley received a call back from William Strickland. Strickland concurred with
Det Rowleys concerns about the children and [J.P.]s escalating mental health
issues. Both Strickland and Det Rowley are concerned that [J.P.] is harbouring
the children in an environment of growing paranoia. As a result of this conversation
an assessment and apprehension of the children, if necessary, was
decided. Strickland stated that police involvement with Car 86 and 87 would be
paramount.
[Emphasis
added]
[350] In all, I
find that Mr. Strickland did not provide a truthful account of his
conversation with Detective Rowley to Ms. Robinson and Ms. Caffrey. He
led them to believe that prompt action must be taken to apprehend the children
for otherwise J.P. might kill the children, herself, or both. Detective Rowley
did not tell Mr. Strickland that J.P. might kill herself or her children
or flee with them (which was later reported to the Provincial Court as key
factual information surrounding the Apprehension). Her focus was on what she
perceived to be J.P.s withdrawal due to her distress resulting from her belief
that the children had been sexually abused. Detective Rowley incorrectly thought
that J.P. was harbouring the children and was suffering from increasing
paranoia because J.P. had stopped calling her and because her voicemail message
in-box was full. I am satisfied that she did not recommend or urge apprehension
upon Mr. Strickland and instead, she offered her support to the Directors
decision.
[351] At trial, Mr. Strickland
tried to justify the Apprehension on the basis that J.P. refused to disclose
the location of the children, even though the Director never asked her for that
information. The only evidence Mr. Strickland could point to was an After
Hours memo from social worker Bev Schulz reporting on a social workers
discussion with J.P. on December 28, 2009. Mr. Stricklands reliance on
that note is without merit. Neither Mr. Strickland nor any other social
worker contacted Ms. Schulz to find out what she discussed with J.P. Ms. Schulz
was not called as a witness to provide an account of her conversation with J.P.
Conversely, the uncontroverted evidence is that J.P. readily cooperated with
the Director and produced the children when asked to do so on December 30.
Ms. Caffrey has also admitted that J.P. never refused to tell the Director
where the children were located.
[352] Although Mr. Strickland
advised Ms. Robinson (who approved the Apprehension) that the children
were suffering from emotional harm due to J.P.s continued efforts to pursue
the sexual abuse allegations and in making the two older children recount
fabricated disclosures of abuse in front of a video camera in a public
location, that was not the basis upon which Ms. Robinson agreed to the
Apprehension. Emotional harm was a concern for Ms. Robinson but not the
basis for the Apprehension.
[353]
Nor could it be. The Manual (at 3.1-14) defines emotional harm in
the following terms:
For the purpose of subsection
(1)(e) [of the CFCSA], a child is emotionally harmed if the child
demonstrates severe
(a) anxiety,
(b) depression,
(c) withdrawal, or
(d) self-destructive or
aggressive behaviour
.
There was no evidence that the children were suffering from
emotional harm.
[354]
Mr. Strickland also tried to make it appear as if he had considered
a s. 17 (produce the child) application prior to the Apprehension. It is
true that he contacted Ms. Charlene Le Beau, a lawyer at Ms. Feenies
law firm, to work up the materials for a s. 17 application. However,
documents in the law firms file indicate that this conversation occurred in
the afternoon of December 30, after the meeting at which the Apprehension decision
had been made. In her email sent the following day, December 31, 2009,
sent at 7:52 a.m., Ms. Le Beau wrote to Mr. Strickland referring to
their discussion:
Hi William:
Just touching base after our
communication yesterday afternoon to let you know that Im keeping any
eye out for any email or cell phone call from you (my cell # is [redacted])
with respect to an application pursuant to s. 17 of the Act to compel the
mother to provide the Director access to the children for the purpose of
investigating a child protection concern. I spoke with Robin Stewart about this
potential application, and he advised that given the urgency of such an
application, the evidence can be presented orally, rather than by way of
affidavit. That is, the social worker can take the stand to tell the judge what
happened re denial of acess to the children. As such, all we would need to
prepare is an Application for an Order. The application will need to be email [sic]
to us for review. As discussed, I am available to attend court today if
required.
[Emphasis
added]
[355]
Mr. Strickland responded the same day to Ms. Le Beau, stating
in an email:
Hello Charlene, many thanks for
the e-mail. I wanted to let you know tha[t] the children were removed last
night by AH so this matter will be on the list next Wednesday. Happy New Year,
w.
[356] As an
experienced child protection social worker, Mr. Strickland knows the
purpose of a s. 17 application. Yet, when asked in cross-examination to
explain it, he feigned ignorance, stating, I would be hard pressed to quote
that section off my head. When pressed, and asked if he recollected having a discussion
with anyone about a s. 17 application, Mr. Strickland responded Um,
we didnt discuss that at the time
. When pressed further and asked if there
was a discussion with anyone about a s. 17 application, Mr. Strickland
responded that he did not recall a discussion with anyone for an order for production
of the children, stating, Not to my recollection, no, there wasnt. I agree
with the plaintiffs submission that Mr. Strickland was engaged in a concocted
attempt to demonstrate that a less disruptive alternative to apprehension had
been considered.
[357] Once the
Director decided to apprehend, a call was made from the Ministry to J.P. to
have her meet a social worker with the children at home that day. The Ministry
had no difficulty contacting her. J.P. readily agreed to produce the children. Because
the Apprehension could not be arranged during Ms. Caffreys working hours,
another social worker on duty after hours attended at J.P.s home with a police
officer. They had no difficulty obtaining entry to the house or access to the
children. The children were taken from their mother to a temporary foster home
overnight. From there, they were taken to the home of J.P.s sister, L.P. and her
husband.
[358] Given that
the purported basis of the Apprehension was that the children were in immediate
danger of physical harm, there was, strictly speaking, no requirement that the
Director consider less disruptive alternatives before proceeding with the
Apprehension. I would nevertheless observe that the Director did not give
consideration to any of the other options before apprehending the children, nor
did she offer them to J.P. For instance, and as I have mentioned, the Director
was entitled to request – as one of the less disruptive alternative measures –
that J.P. produce the children to her for assessment. The Director did not do
that. To the contrary, her production request of J.P. was for the purposes of facilitating
the Apprehension.
[359] In
summary, Mr. Strickland misled Ms. Robinson and Ms. Caffrey to
believe that Detective Rowley was of the opinion that J.P. may kill the
children or herself. Ms. Robinson thus authorized the Apprehension on the
basis of a misapprehension that the children were in immediate danger of
physical harm from their mother who was suffering from mental health issues.
Although she did not base her decision to authorize the Apprehension on it, she
was also concerned about emotional harm suffered by the children from having
discussed sexual abuse with their mother. However, concerns about emotional
harm to the children from the circulation of the video recordings of their
disclosures were speculative. There was no proof that the children suffered
from emotional harm as it is defined in the CFCSA.
[360] Mr. Strickland
knew why J.P. and the children were away from their home in the latter part of
December. Evidence from Dr. Edamura that J.P. was not suffering mental
health issues was ignored by the Director. When asked, to produce the children,
J.P. immediately and readily cooperated with the Director.
[361] In the
circumstances, there was no basis to apprehend the children. For the reasons
set out in this judgment, I have determined that the Apprehension was the
result of the tortious acts and omissions of the Director and her agents, who
were social workers employed by the Ministry.
[362] The day
following the Apprehension, December 31, J.P. met with Mr. Strickland at
his office to find out why her children had been apprehended. According to Mr. Strickland,
his purpose at the meeting was to obtain further information from J.P. and to
explain his protection concerns to her. He said he had an open mind. A tape
recording of their meeting, made with a tape recorder that J.P. had in her
purse, shows that his account is not correct. In listening to the tape
recording, the accuracy of which Mr. Strickland did not challenge when it
was played to him in cross-examination, it is clear that Mr. Strickland
had a closed mind in the interview and refused to consider any information that
J.P. provided to him.
[363] The
Director had the opportunity immediately following the Apprehension to further
consider information supporting the veracity of the sexual abuse allegations
and whether the children were in fact at risk of physical harm from J.P.
Instead, Mr. Stricklands approach to the meeting provides further
evidence that:
(a) a early
and firm decision had been made that there was no merit to the sexual abuse
allegations;
(b) the
Director was of the opinion that J.P. had fabricated and coached her children
to make their disclosures;
(c) the
Director was of the opinion that J.P. posed protection concerns to the children
from her preoccupation with sexual abuse of the children;
(d) the
Director was seeking to determine the extent of the emotional harm caused to
the children by J.P.; and
(e) for as long
as J.P. persisted with her reports of sexual abuse, the children would not be
returned to her – this mindset then drove the Directors ongoing conduct in her
dealings with J.P., the children, and B.G.
[364] The tape
recording, which was transcribed, reveals that before the children were
interviewed, before the VPD completed its investigation, and without having
made any enquiries about the circumstances in which the children made their
disclosures and in which the audio and video recordings were made, Mr. Strickland
suggested that J.P. was inappropriately obsessed or preoccupied with the
sexual abuse allegations and that she had indeed fabricated them. He also
criticized her for speaking with her children even though she told him that she
did it on legal advice and that no one from the VPD had advised her to the
contrary.
[365]
I have set out illustrative excerpts from the transcript below:
MR. STRICKLAND:
So one of the things I am concerned about is your perseveration over
your concerns and allegations around the children sexually – –
[J.P.]: What
are you calling it?
MR. STRICKLAND: Perseverating,
it is sort of like pouring over, becoming really obsessed over.
[J.P.] Over
what? Over what, can you – –
MR. STRICKLAND:
Over your concerns that the children have been sexually abused.
[J.P.] So
you think I am obsessed with that.
MR. STRICKLAND: No,
I think that there – – and I am not a psychiatrist, I dont have that
ability to make those determinations, all I am telling you is that in your
presentations (inaudible) the other staff here, as well as other community professionals,
including the police that you had contact with – –
[J.P.] Well,
this is quite a big matter and I didnt feel like I am being heard. You know, I
even took them to the child protection – –
MR. STRICKLAND:
I know.
[J.P.] –
– and nobody – – I was expecting a psychologist – – a psychiatrist to question
my kids but that didnt happen.
MR. STRICKLAND:
I feel that your interviewing of the children was the wrong thing to do and
I think that – –
[J.P.]: And
do you know thats why I dont have my second lawyer anymore because he is
the one that told me to do that and thats why I let him go because he
obviously didnt have my best interest in mind by telling me to do that, and
I have an e-mail that proves that. I think I provided that to you, did I?
MR. STRICKLAND: Yeah.
You did, but I am explaining to you that that was the wrong thing to do.
There was a police – – there was a police investigation that was unfolding – –
Yeah, but there was a police investigation that was ensuing and they – –
[J.P.] Yes,
but then – –
MR. STRICKLAND:
– – surround when those interviews were going to happen, so this is a
formal – –
[J.P.]: No,
they havent yet.
MR. STRICKLAND: There
is a formal criminal process thats unfolding – –
[J.P.]: But
I dont know anything about these things, but I appreciate you telling me now.
MR. STRICKLAND: Well,
you do know now, right.
[J.P.]: Well,
no, I am learning, I am learning, I have never been through this before.
MR. STRICKLAND: Well,
the police told you not to talk to the children about – –
[J.P.] No,
they havent.
MR. STRICKLAND: The
judge in fact has ordered that you dont – –
[J.P.] Yes,
and I havent spoken with the kids any further since the initial questioning.
MR. STRICKLAND: So
in my view, and I again am not responsible for the criminal outcome of whatever
proceedings happen with respect to the allegations of sexual abuse, but in
my view it appears to me that the children are being coached to — to disclose
this information. And in fact they appear to be under some duress to produce
the information that you would like them to say.
[J.P.]: No.
[MR. S.]:
Which to me amounts to emotional harm, right, and thats why we
— thats why we are — one of the reasons why we are involved in this
fashion that we are. And I will sort of document all of this —
[J.P.]: So
are you saying coaching in terms of making them say something thats not true?
[MR. S.]: Yes, yes, thats my feeling.
[J.P.]: Or
coaching just trying to get them to say what they already told me.
[MR. S.]: No, it —
[J.P.]: So you are —
[MR. S.]: Fabricating.
[J.P.]: Oh,
yeah —
[Mr. S.]:
Thats how it appears in those videos. And there are a number of
people unfortunately that feel the same way.
[Emphasis
added]
[366] Mr. Stricklands
evidence that J.P. was very upset and very hard to focus and keep on task and
that it was hard to get a straight answer from her during the meeting is belied
by the tape of their discussion. When pressed on the point in cross-examination,
he changed tack, suggesting that J.P. deliberately feigned poise because she
knew their conversation was being covertly recorded.
[367] In listening
to the tape, I found that at times, Mr. Strickland was taunting J.P. At
one point during the discussion, immediately after having accused her again of
forcing K.G. to make her disclosures, Mr. Strickland falsely told her
that we share your concerns that the children have been sexually abused. He told
her that the children would be kept in the Directors care so that when the
children were interviewed the following week their statements would be
attributed to a clean interview. When J.P. did not argue, and instead, said,
I want a clean interview. I want it to be as clean as it can be, Mr. Strickland
immediately responded that the validity of any such interviews may have been
damaged by her conduct. Mr. Strickland told her that a lot of other
community professionals who are impartial in this whole proceeding are
feeling that she is a dangerous person for her kids and thats why they
are no longer with you. Mr. Strickland also told her that he had a hard
time believing that she was not dangerous to them.
[368] When J.P.
tried to raise her concerns about B.G.s mental health, and despite having
received a prior report that B.G. had been treated for depression, suffered
from anger issues, and had used steroids, Mr. Strickland responded, That
hasnt been raised as a concern for us at the moment. We will take note of that
but I dont think thats something [a mental health assessment] we will be
doing at the moment.
[369] The only
time Mr. Strickland pursued her for information was when he thought he might
be able to get something that could buttress the basis for the Apprehension. He
did not try to find out the circumstances of the disclosures or the recordings.
I found that he approached his meeting with J.P. with a closed mind towards
anything she had to say unless it could be used against her interests.
[370] In his
evidence, Mr. Strickland testified that he wanted to provide J.P. with the
opportunity to say that she had in some way prompted the children or that
the children had said something to her that she embellished. Mr. Strickland
was highly critical of her conduct and raised purported protection concerns for
the risk of emotional harm that elsewhere in his evidence he did not say formed
a basis of the Apprehension. He accused her of failing to provide supervised
access to B.G. He told J.P. that we are concerned that the children are being
emotionally harmed by exposure to her concerns of sexual abuse and that we
are going to have the children seen by a child psychiatrist to interview them
properly to make sure.
[371] I also
found J.P. to have been cooperative and calm, albeit pointed in her enquiries
as she tried to find out why her children had been apprehended. She agreed to
all of the requests Mr. Strickland made during their meeting.
[372] In
cross-examination, Mr. Strickland admitted that he was telling J.P. in their
meeting that he believed that she had fabricated the childrens sexual abuse
disclosures.
[373] Mr. Strickland
told J.P. that others also thought the sexual abuse allegations were
fabricated. When asked in cross-examination to identify them, he could not do so.
The most he could say is that Detective Rowley held that view. Otherwise, he
testified that Ms. Robinson, Ms. Lekjo, and Ms. Caffrey thought
it was a possibility.
[374]
At another point in his meeting with J.P. on December 31, Mr. Strickland
told J.P. that experts in our field have looked at the video statements of
your children and they find them to be coached and prompted. When pressed
in cross-examination to identify the experts, Mr. Strickland conceded that
he was only referring to a previous call he had with Detective Rowley. When
pressed further about that conversation, he admitted that it was only one of
several possibilities considered by Detective Rowley as opposed to her
conclusion or finding:
Q Okay. And so had – – at that time did you also
discuss with Gwen Rowley that issue, of whether she shared your concern or had
a similar concern about coaching?
A Um, I – – I did, yes, I – – I spoke with her
about that. Because, of course, I had – – I had a conversation with her, as Id
mentioned earlier this morning, between the time that wed received the
videotape package and contact that she had made with me the day before that – –
or the day before this meeting that resulted in the removal.
Um, she had
also reviewed those disclosures and had at that time already interviewed [J.P.]
herself. And we discussed the possibility as that being one explanation as
to what had happened to these children. So she shared with me in that
conversation that I had with her the day before this interview with [J.P.],
that she felt that – – that the potential existed that the children had
been coached to say at least some of these things.
[Emphasis
added]
[375] J.P.
flatly denied coaching to Mr. Strickland and denied his suggestion she
might harm the children or herself. She tried to explain to Mr. Strickland
the reason why she took her children out of the house (to be away from
questions from her family pending their interviews with the VPD), that the
children were fine (she suggested he speak with their babysitter), and reminded
him that she had been asking since December 17 for the Ministry to arrange
a trained professional to speak with the children about their disclosures. Mr. Strickland
did not deny J.P.s statement to him that he refused her request for help on
December 24, 2009. J.P. welcomed Mr. Stricklands suggestion that the
children be interviewed by a psychologist at Childrens Hospital and also told
him about the older childrens visit with Dr. Edamura. She suggested that
the childrens nanny be interviewed by the police, to which Mr. Strickland
took issue, and said that he was certainly within my rights to speak with the
caregiver of your children. Although J.P. told Mr. Strickland that the
nanny was uncomfortable and asked Mr. Strickland to set out his questions
with greater clarity, she did not attempt to block the interview and instead told
him, to go ahead to interview the nanny. Mr. Strickland asked Ms. Caffrey
to take the nanny (who was present) to another room to interview her after he
was told that the nanny had concerns about the children being maltreated.
[376]
Mr. Strickland also made it plain to J.P. his belief that she knew
of the location of B.G.s firearms which were unlicensed and missing from the
home. He would not accept her statement that she did not know where they were
located and told J.P that he would not consider her access to the children
before the location of the weapons was identified. His mind continued to be
closed to the possibility that J.P. was telling him the truth that she did not
know where the weapons were located. Mr. Strickland did not consider B.G.
a suspect for the missing unlicensed weapons even though B.G. did not disclose to
the authorities that he had them until shortly after the Apprehension.
[377] In
listening to the tape of the conversation and in hearing Mr. Stricklands
evidence about it in this trial, I am satisfied that there was nothing that
J.P. could have done to convince him that she was being truthful and moreover,
that she had not coached the children.
[378]
It is also telling that to this day Mr. Strickland testified that
he does not accept the findings from the First Trial that B.G. sexually abused
three of his children. He sought to justify his current thinking on the basis
that he had not read all of the Reasons because they were not important to the
information concerning his involvement in the case:
Q I understand that, sir, but youre missing my
question. What could [J.P.] herself have done at that time to convince you that
the children were not coached to say untrue statements?
A At which time are you asking?
Q On the 31st.
A On the 31st. I was, at that point,
quite skeptical about – – about that, I believe with good reason. But I dont
know whether at that time, again, as I – – as I answered previously, I think at
this point in my involvement with [J.P.] what I needed was an independent third
party to help share their expertise in that assessment.
Q So now, of course, weve had a 92 day – –
sorry, 92-day trial on this – –
A Yes.
Q – – with full cross-examination and experts
and vetting of all the evidence, and even today youre not quite sure whether
the children had been coached to say untruths and things; right?
A I – – my involvement with this case was – –
ended very shortly thereafter the removal, and so my direct observations of
working with this family at that time certainly have influenced the way I feel
about the outcome. Now, Im not – – I havent – – in – – in – – in fairness and
with no intent to be disrespectful to the court, My Lord, I havent read the
entirety of the voluminous amount of information that is available to help me
with that.
Q Sir, why have you not read the entire
decision?
A Im afraid it
it it didnt pertain directly to the information that I believed was
relevant for the court with respect to my involvement wih this matter.
[Emphasis
added]
[379] I reject the
Provinces submission that Mr. Strickland did not and could not ask J.P.
questions during the meeting because he did not want to interfere with the VPD
investigation. That submission completely overlooks his own testimony
concerning his purpose and the attempts he did make during their discussion to
gain information adverse to J.P.
[380] I also
found Mr. Stricklands suggestion that J.P. expressed her relief that the
Director had taken the children off of her hands not to be credible. The
recording of their meeting demonstrates that she mistakenly interpreted the
Apprehension as a sign that the Director was taking action to protect the
children from external influences before they were interviewed by the VPD.
[381] The tape
recording of their meeting shows that Mr. Strickland offered to have a
social worker drive by J.P.s home to assist her with emotional upset.
Otherwise, J.P. was told by the Director that she was not to have any contact
with her sister, L.P., even though he knew of their close relationship and that
J.P. considered L.P. to be her lifeline. Although it deals with future
events, it is an appropriate juncture to point out the dichotomy in the treatment
of J.P. as opposed to B.G. The Director did not provide support services to
J.P. to help her deal with what she perceived was J.P.s mental health issues
even though she provided support services to B.G. to help him overcome what the
Director viewed to be his inappropriate physical discipline of the children.
The more J.P. complained that her children were sexually abused, the dimmer the
view (evolving to antipathy) the Director took of her. Consequently, I reject the
Provinces submission that the Director should be excused from criticism for
her failure to offer assistance to J.P. because she did not know the true state
of J.P.s mental status following the Apprehension.
VIII. THE
PRESENTATION HEARING IN THE PROVINCIAL COURT
A. Overview
[382] Apprehension
without prior judicial authorization survives constitutional scrutiny where the
authorizing statute provides for a prompt and fair post-apprehension hearing: Winnipeg
Child and Family Services at paras. 108, 116, 122, 124; and Child
and Family Services of Western Manitoba v. K.B., 2006 MBQB 94 at para. 15,
affd 2006 MBCA 82 at para. 11. In Winnipeg Child and Family Services,
the Court identified several reasons for this conclusion:
(a) Removal
of a child from parental care by apprehension may give rise to great emotional
and psychological distress for parents and constitutes a serious intrusion into
the family sphere. Apprehension contemplates an infringement of the right to
the security of the person which can only be carried out in accordance with the
principles of fundamental justice (para. 87).
(b) A
childs need for continuity in relationships provides the most compelling
basis for requiring a prompt post-apprehension hearing (para. 124).
(c) The
seriousness of the interests at stake demands that the resulting disruption of
the parent-child relationship be minimized as much as possible by a fair and
prompt post-apprehension hearing (para. 122).
[383] The CFCSA
likewise contemplates a prompt and fair post-apprehension hearing.
[384] Unless the
child is returned to the parent who had custody at the time of apprehension,
which is something the Director may do if she is satisfied that circumstances
have changed so that the child no longer is in need of protection, the Director
must attend in Provincial Court for a presentation hearing within seven days of
the Apprehension: s. 33. The Director need only demonstrate a prima
facie case that the child is at risk of harm. The test is lower than a balance
of probabilities.
[385] The
Director must present to the court a written report setting out the
circumstances that caused the Director to remove the children, an interim plan
of care, and information about any less disruptive measures considered by the
Director before removing the children. A copy of the report, known as a Form
A, must also be provided to the parent entitled to custody seven days in
advance of the hearing: s. 33.
[386]
At the conclusion of the presentation hearing, the court must make one
of a number of orders enumerated in s. 35, including:
(a) an interim order that the child be in the custody of
the Director;
(b) an interim order that the
child be returned to or remain with the parent apparently entitled to custody
(which is sometimes coupled with an interim order that the placement is under
the supervision of the Director); or
(c) an interim order that the child be placed
with someone other than the childs parent with the consent of the other person
and under the supervision of the Director.
[387] Unless the
child is returned to the parent entitled to custody on an unqualified basis or
that parent consents under s. 60 of the CFCSA to delay the
presentation hearing and to an order granting temporary custody to the Director
(s. 60 consent), the Director must secure the earliest possible date for the
hearing concerning the merits, which is called a protection hearing: Manual,
3.25-3. Absent a s. 60 consent, the CFCSA stipulates that the
protection hearing must proceed no more than 45 days following the conclusion
of the presentation hearing: CFCSA, s. 37; Manual, 3.25-2.
[388] Presentation
hearings are summary in nature and are designed to ensure that children are not
arbitrarily taken into custody. Credibility assessments are not made at
presentation hearings conducted under the CFCSA; they are left for the
protection hearing. The practice before the Provincial Court at a presentation
hearing is to resolve conflicts in the evidence in favour of the Director.
Resolution of the conflict is left to the protection hearing unless the facts
are manifestly wrong or untrue or unlikely to have occurred. The Director and
parents may call viva voce evidence so long as it is brief: B.B. v.
British Columbia (Director of Child, Family and Community Services), 2005 BCCA
46 at paras. 13-14. The Court must be satisfied that there continues
to be objectively reasonable grounds to believe that the child is at risk of
harm at the time of the presentation hearing: R.A.S. (Re), [1996] B.C.J.
No. 2227 (Prov. Ct.), appealed on other grounds [1996] B.C.J. No. 2387
(S.C.), leave to appeal refused (1996), 31 B.C.L.R. (3d) 383 (C.A.); British
Columbia (Director, Child, Family and Community Service Act) v. M.H., 2008
BCSC 701; K.M.T. v. J.D.T., [1999] B.C.J. No. 822 (Prov. Ct.); and British
Columbia (Director, Child, Family and Community Service Act) v. M.H., 2008
BCSC 701 at para. 40.
[389] Given that
the apprehension of children constitutes a significant state intrusion into the
family, the authorities are clear that the Director bears a heavy burden to
make full and frank disclosure in the Form A of all relevant facts concerning
the children and the parents, including evidence helpful to the parent
defending a protection application: see, for example, Hastings Childrens
Aid Society v. S.(A.), 2007 ONCJ 694, and Childrens Aid Society of
Hamilton v. E.O., 2009 CanLII 72087 (Ont. S.C.J.). The Director cannot
provide a narrow or one-sided presentation of the facts to the reviewing court.
Nor, should it force the reviewing court to read between the lines or fill in
gaps. The extent of disclosure required of the Director was described in one
case as extending to in-house disagreement of opinion concerning the
apprehended child: Childrens Aid Society of the City of Kingston and County
of Frontenac v. J.M.S. (2004), 1 R.F.L. (6th) 56 (Ont. S.C.J.).
[390]
In E.O., Gordon J. said at paras. 21- 23 that the duty of
disclosure is to the court as well as the parents and is comparable to that of
Crown counsel in criminal proceedings as described in R. v. Stinchcombe,
[1991] 3 S.C.R. 326. The obligation, he said, includes all information gained
in the course of an investigation and involvement with the family. As Gordon J.
observed at para. 22:
The Society, as with Crown
counsel in a criminal case, is not to focus on winning the case, but, rather,
to seek a determination that is in the best interests of the child. Further,
the court has the responsibility of making that determination and is not to
simply rubber stamp decisions of the Society.
[391] In view of
the short notice given to parents for the presentation hearing, the disclosure
required of the Director is the same as on an ex parte application: S.S.M.B.
v. British Columbia (Children and Family Development), 2014 BCSC 662. The
same approach was taken by Chief Justice Brenner, albeit in a different
context, in V.M. v. British Columbia (The Director of Child, Family and
Community Service), 2008 BCSC 449 at para. 98. In dealing with
s. 29 of the CFCSA (which concerns application for orders allowing
the Director to provide health care to a child despite the lack of consent from
the parents), the Court treated the application as an ex parte hearing
given the very short notice of the hearing given to the parents.
[392] Jurisprudence
from other provinces is apposite even though some provinces require the child
protection authority to provide the information to court in affidavits as
opposed to a report to court; see, for example, J.C. and J.L. v. Yukon
(Director of Child and Family Services), 2006 YKSC 55; Child and Family
Services of Western Manitoba v. K.B., 2006 MBQB 94, affd 2006 MBCA 82. The
same principles were applied by the Court of Appeal in the context of a
protection hearing in C.S.L. v. British Columbia (Director of Child, Family
and Community), 2007 BCCA 92.
[393] In
addition to providing parents with reasons for the removal of their child or
children, parents must also be told what will occur next, including the date
and time of the presentation hearing, if known, and advised where to make
enquiries for legal or other advocacy or support services. The Director must
make arrangements to meet with parents prior to the presentation hearing in
order to review the information given in the statement of reasons.
[394] In this
case, the written statement provided to J.P. was the Form A. It was not
provided to her until the morning of the presentation hearing, which did not
give her appropriate time to prepare for the hearing. Although Mr. Strickland
met with her on December 31, 2009, he did not advise her of what would happen
next nor where to look for legal, advocacy, and support services.
B. The Report to Court
[395] The
plaintiffs claim that the Director provided a false and highly misleading
report to the Provincial Court about the circumstances in which the children
were apprehended. They allege that the Director acted negligently and in breach
of fiduciary duty in so doing. They further allege misfeasance on the part of Mr. Strickland
(which I discuss in a separate section) given the number and magnitude of the
misrepresentations in the Form A, which they say were necessarily deliberate
and motivated by malice on his part. The plaintiffs also claim that the
Director failed to provide timely service of the Form A as required by the CFCSA
and to comply with other statutory requirements.
[396] The
Province concedes the Form A contains some factual errors and omissions but
says they are minor and that the central facts leading to the removal of the
children were accurately set out. The Province also says that the Form A met
all statutory requirements and that while the Director did her best to deliver the
Form A to J.P. in advance of the presentation hearing in rushed
circumstances, there was no absolute requirement to deliver the Form A to
J.P. in advance of the hearing.
[397]
The Form A in this case was dated January 5, 2010 and signed by Mr. Tymkow.
It states the following under the heading circumstances that caused the
Director to remove the child:
On December 30, 2009, at 21:10 hours, Car 86, a partnership
between the Ministry of Children and Family Development and the Vancouver
Police Department, attended the home of [J.P.] to check on the welfare of her 4
children. A report was also received by the Director that the childrens
whereabouts were unknown. The Director also received information from Detective
Rowley of the Vancouver Police Department, and other credible community
sources, that [J.P] was at risk of harming herself and the children. There was
also a concern raised that [J.P.] may flee with the children.
The Director has been involved with this family since
October, 2009. Throughout my involvement with this family, I have had concerns
about [J.P.s] mental health. She presents as being highly disorganized in
thought and frequently becomes extremely paranoid. [J.P.] has often stated to
me that the Director is conspiring against her with family members and the
Vancouver Police Department. Currently there is a custody and access dispute
between [J.P.] and her husband, [B.G.], the father of the children. Recently,
an order was granted in the family proceeding between [J.P.] and [B.G.] that [B.G.]
have supervised access to the children. [J.P.] has repeatedly defied the court
order for [B.G.] to have access to the children. On December 17th,
2009, [J.P.] went into hiding with the children and no one was able to locate
them until December 30, 2009, when the Director did made contact with [J.P.]
and convince her to return home with the children. Prior to that day, [J.P.]
was unwilling to divulge the whereabouts of herself or the children to family
members, professionals or the Director.
Given the concerns the Director
has regarding [J.P.s] mental health, reports from the community that [J.P.] is
at risk of harming herself and the children, and the fact that she attempted to
hide the whereabouts of the children, the Director deemed the children to be in
need of protection. Social worker Metcalfe removed the children from [J.P.s]
care and placed them in an approved foster home. They have since been placed
with family.
[398] Drafts of
the Form A delivered in this case were prepared by Ms. Caffrey because of
her involvement in the Apprehension in Mr. Tymkows absence. The final version
was reviewed and signed by Mr. Tymkow when he returned to the office. Mr. Strickland
also reviewed the document before it was released to J.P. and delivered to the
Provincial Court.
[399] As is
evident from my findings to this point in these reasons, I find that the Form
A filed in this case was highly misleading given the information known to the
Director at the time the document was prepared and delivered.
[400] It is
important to understand the practice taken by the Directors external counsel
to disclosure because it impacted on the Directors understanding of what
should be disclosed to the court in the Form A in respect of the sexual abuse
allegations. The Form A was silent with respect to the sexual abuse
allegations against B.G.
[401]
Ms. Feenie testified that her firms practice was to keep the Form
A as short as possible so that the information could be contained within one
page. She holds the view that the Director is only required to provide brief
reasons why the children were apprehended. In her testimony, she said:
The case law has been clear that
the Director isnt confined to whats set out in the report to court if the
matter is contested so we have – – we attempt to have social workers be as
brief as possible while still giving the flavour of the circumstances that
caused the Director to believe the child was in need of protection. So we do a
little editing and then often condensing.
[Emphasis
added]
[402]
Ms. Feenie also described her firms usual practice in working with
social workers to prepare a Form A:
Q [W]hat is the normal procedure when a Form A
is prepared for a presentation hearing?
A So the usual practice in our office is that
the social worker will prepare a presentation form and the report to court,
filling in the information including the circumstances of the removal. They
then email that to our office. We then – – the lawyers in the office get the
email and whoever is first available to deal with it will review the documents,
ensure that theres not grammatical area – – errors, not missing half addresses
and the like, and then also review the circumstances.
Quite
frankly, social workers, though having a degree, quite often are not the best
in terms of spelling and grammar and we will review it and make corrections to
the way its phrased. And we will also quite often – – social workers often
have a tendency to go on for pages in terms of setting out circumstance and the
purpose of a report to court is to be able to provide the court with a summary
reference as to circumstances that caused a removal. So we have always taken
the position thats its very difficult for a court when on a remand list where
we will have 30, 40 cases, to have reports to court that go on for two, three
pages.
[Emphasis added]
[403] The
plaintiffs have alleged that Ms. Feenie acted maliciously in a number of
respects and as an agent of the Director, acting on instructions, the
plaintiffs say they have established another basis for the Directors liability
in misfeasance. Absent this submission, which was put squarely and forcefully
in submissions and set out in the pleadings, I would not engage in an analysis
of the conduct of a non-party professional. Although I deal elsewhere in these
reasons with certain other specific submissions about Ms. Feenies conduct
made by the plaintiffs, it is appropriate for me to set out my overall
determination at this time that I did not find Ms. Feenie to have acted
with malice. I will say that in respect of the Directors disclosure
obligations, I found that Ms. Feenies approach towards those obligations
failed to appreciate the readily available case authorities.
[404] Before the
Form A was finalized, a draft of the document was sent to Ms. Feenies
law firm and reviewed by Ms. Le Beau, who was an associate working there
at that time. From her correspondence with Ms. Caffrey, it is clear that
the draft Ms. Le Beau received referred to the sexual abuse allegations.
It is not otherwise possible to determine what facts were contained in that and
other prior drafts of the document because none of them were retained by the
Director. As well, the document sent to Ms. Feenies associate has not
been found in the law firms files.
[405]
After she reviewed the document, Ms. Le Beau wrote to Mr. Tymkow
recommending that all references to the sexual abuse allegations be removed
because they would paint B.G. in a negative light. At the same time, she
advised Mr. Tymkow to ensure that the facts contained in the Form A were
accurate. Her email to Mr. Tymkow, dated January 5, 2010, which I have
excerpted below, is important because it: (a) confirms her instruction to him
to be accurate; (b) reports the Ministrys erroneous view that J.P. had gone into
hiding with the children; and (c) confirms that before the children had been
interviewed, the VPD told Mr. Tymkow that they believed the sexual abuse
allegations were made up:
Hi Jeff:
Attached are your revised documents. You will see that there
are some blanks for you to fill in as follows:
1. how
long you have been working with the family
2. the
date [J.P.] went into hiding
3. the date her and the
childrens whereabouts were discovered
4. how her whereabouts were
discovered.
Please fill in the required
information, as indicated in the Form A. Once you have done that, please email
it back to us for review. Please also thoroughly review the circumstances
section of the Form A to ensure it is accurate. Feel free to make changes to
correct it if necessary. I took out the part about the criminal
investigation regarding the mothers allegations about the fathers molestation
of the children, the police investigation, the video, and that the police told
you they think the allegations are made up. The mothers allegations are just
that – allegations. They are not facts. Including the information in the Form A
just confuses the issues and makes the father look bad. They are not part
of your child protection concerns except to show that the mother is paranoid
and has mental health issues. To indicate your protection concern about her
mental health, it is enough to describe your observation of her and your description
of her presentation.
[Emphasis
added]
[406] In hearing
Ms. Le Beaus testimony about her involvement with the Form A, it was
clear to me that although she was well intentioned and acted in good faith, she
was, at the time, affected by the firms approach towards disclosure. When
giving her evidence, Ms. Le Beau readily acknowledged that in hindsight a
much greater factual context, including the sexual abuse allegations, should
have been set out in the Form A. She understood from Mr. Tymkow that the
VPD told him before the children were interviewed that they believed the sexual
abuse allegations to have been made up, and that the Apprehension arose from
concerns about the mothers mental health. Seen in that light, it is
understandable, although not excusable in view of the case authorities, that Ms. Le
Beau thought there was no point in referring to the VPD investigation or the
sexual abuse allegations. I am satisfied as well that Ms. Le Beau did not
know that the final version of the Form A contained significant factual
errors, omissions, misstatements, and allegations presented in the guise of
facts.
[407] The Form
A contained many inaccuracies in its description of the basis of the Apprehension.
In the discussion that follows, I contrast the information contained in the report
to court with the facts known to the Director at the time the document was
delivered.
[408]
In setting out the circumstances that gave rise to the Apprehension,
the report begins with these remarks:
On December 30, 2009, at 21:10
hours, Car 86, a partnership between the Ministry of Children and Family
Development and the Vancouver Police Department, attended the home of [J.P.] to
check on the welfare of her 4 children.
The latter part of the sentence is incorrect. The
decision to apprehend had already been made. The social worker and police were
sent to J.P.s home to apprehend the children, not to check on their welfare.
[409]
The document continues:
A report was received by the
Director that the childrens whereabouts were unknown.
The document does not mention that G.P. made a second
call on behalf of J.P.s family to report that the children were safe; nor does
it mention that reports from S.S.G. about the children had been determined to
be inaccurate and unreliable, nor that the Director had not asked for the
location of the children. It does not state that J.P. readily produced the
children when asked by the Director to do so.
[410]
The report then states:
The Director also received
information from Detective Rowley of the Vancouver Police Department, and other
credible community sources, that [J.P.] was at risk of harming herself and the
children.
[411] The
information concerning Detective Rowley came from Mr. Strickland and was
false. There were no other credible community sources that provided such
information about J.P. Defence witnesses admitted in their evidence that B.G.s
friends should not be relied upon because of their vested interest in
supporting him. Moreover, and as I have pointed out, the information that came
from S.S.G. had already been discredited in the eyes of the Director and social
workers, and it was wrong for the Director to rely on it in drafting the report
to court.
[412]
The report then refers to the prospect of abduction:
There was also a concern raised
that [J.P.] may flee with the children.
[413] There was
no basis for this statement. The Director received information about fleeing from
S.S.G., whom the Director did not consider a reliable nor credible community
source by that time. Detective Rowley was concerned about it as well, but in
the context that J.P. wished to prevent her children from being exposed to the
person she thought had sexually abused them (which she kept to herself).
[414]
Mr. Tymkows prior dealings with J.P. and the family are also
misstated:
The Director has been involved
with this family since October, 2009. Throughout my involvement with this
family, I have had concerns about [J.P.s] mental health. She presents as being
highly disorganized in thought and frequently becomes extremely paranoid. [J.P.]
has often stated to me that the Director is conspiring against her with family
members and the Vancouver Police Department.
[415] At no time
prior to the Apprehension did Mr. Tymkow have any concerns about J.P.s
mental health. His concluding determination that he actually prepared in late
November is to the contrary. Mr. Tymkow also believed throughout his
involvement with the case in December 2009 that J.P. was sufficiently composed
to protect the children and did not pose a risk of harm to them. Mr. Tymkow
did not mention his limited interaction with J.P. prior to the Apprehension. His
description of the frequency of her remarks does not accord with his testimony
at trial where he admitted that he may have spoken on the telephone with her
but could not recall. Mr. Tymkow did not mention the letter he and Mr. Strickland
sent to B.G. in November 2009.
[416]
The report goes on to mention the family law action and the Supervised
Access Order but does not mention the context, the court in which it was made, the
sexual abuse allegations, and the pending criminal investigation and charges
against B.G. for assault and uttering death threats:
Recently, an order was granted in
the family proceeding between [J.P.] and [B.G.] that [B.G.] have supervised
access to the children.
[417]
The report then points out that J.P. defied a court order allowing B.G.
to have supervised access even though Ministry employees who testified were
clear that this formed no basis for the decision to apprehend:
[J.P.] has repeatedly defied the
court order for [B.G.] to have access to the children.
The document did not mention that J.P. reported the
childrens fears of access with their father to Mr. Strickland and had
asked him for help on December 24, 2009, nor that Mr. Strickland had
declined her request on the basis that she was sufficiently capable of
protecting the children.
[418]
The report advises that J.P. went into hiding on December 17, 2009:
On December 17th,
2009, [J.P.] went into hiding with the children and no one was able to locate
them until December 30, 2009, when the Director did make contact with [J.P.]
and convince her to return home with the children.
[419] The
document fails to mention, however, that J.P. called the Directors After Hours
department on the evening of December 17, met with Detective Rowley on December
23, met with Mr. Strickland on December 23 and called him the next day, and
met with Sergeant Singh on December 28. The document does not advise that J.P.
spoke with Ms. Caffrey on December 23 asking her to have Mr. Strickland
or Mr. Tymkow contact her as soon as possible to discuss the status of the
investigation, that Ms. Caffrey relayed that information to Messrs.
Strickland and Tymkow, and that they failed to respond.
[420]
Also, those words in the document imply that the Director asked J.P. to
see the children and she declined, which is not the case. The Director never
asked J.P. to produce the children or about their whereabouts prior to December
30, 2009. Mr. Tymkows testimony that the error in the document reflects
a typo is devoid of credibility. So was his attempt to attribute that
information to Ms. Caffrey. He admitted that when he signed the document, he
did not know all of the facts:
Q Okay. And then you – – it goes on that:
when
the director did make contact with [J.P.] and convinced her to return home with
the children. And then it says:
Q. Now, what evidence do you have to support
that?
A I believe there was some communication
between the VPD with concern about – – about the – – the children and I – – and
I cant speak to what happened while I was away, so I am not sure exactly what
attempts were made to call or not call or didnt – –
Q So you dont
really know what went on?
A No.
[Emphasis added]
[421] As the
original drafter of the document, Ms. Caffrey unreasonably tried to defend
the document on the basis that it was not misleading but could have been
written more clearly.
[422] In
argument, the Province conceded that, It is uncontroverted that JP was not,
herself, in hiding. Nonetheless, the Province maintains that the report is
essentially accurate because it was the children who had not been seen for some
time. I disagree. To say, as the Province asserts, that the report to court
should not be faulted for stating the children had not been seen since December
17 instead of December 18, when Dr. Edamura met with the two
older children, overlooks the overall impression created by its contents, i.e.:
J.P. and the children had been in hiding for a significant time; J.P. suffered
from mental health issues; J.P. was not cooperative; and that J.P. could either
flee with the children or harm them (or both). The Provinces submission also ignores
the Directors failure to provide a balanced report and the Directors breach
of her legal obligation to provide full and frank disclosure. Those failures, I
have determined, denied the plaintiffs procedural fairness and fundamental
justice.
[423] As I
pointed out, J.P. did not need convincing to produce the children, and the
evidence from the Directors witnesses is consistent. The Directors call to
J.P. on December 30 was put to her as a simple request to see the children. Even
though she wrote the document, Ms. Caffrey admitted in cross examination
that no one at the Intake team ever asked J.P. to disclose the location of the
children.
[424]
There was also no basis for the next sentence in the report that says,
Prior to that day, [J.P.] was unwilling to divulge the whereabouts of herself
or the children to family members, professionals or the Director. Ms. Caffrey
admitted that she did not know the identity of the professionals:
Q All right. Now, who are the professionals that are
being referred to here?
A I dont know,
specifically.
[425]
The report then provides the following information about J.P.s mental
health:
Given the concerns the Director
has regarding [J.P.s] mental health, reports from the community that [J.P.] is
at risk of harming herself and the children, and the fact that she attempted to
hide the whereabouts of the children, the Director deemed the children to be in
need of protection. Social worker Metcalfe removed the children from [J.P.s]
care and placed them in an approved foster home. They have since been placed
with the family.
[426] There were
no credible community reports concerning the risk that J.P. may harm herself or
the children other than what Mr. Strickland reported from his call with
Detective Rowley. As well, the Director knew J.P. and the children were not in
hiding and she had been told the reason why J.P. did not wish her family to
have access to the children pending their interviews with the VPD. Ms. Caffrey
admitted that J.P. never refused to tell the Director where the children were
located.
[427] In
addition to the requirement for full and frank disclosure in the Form A, the
document requires the Director to inform the court about less disruptive
measures that were considered as an alternative to apprehension. The Director
is also required to provide information concerning the:
(a) parents
willingness to speak with the Director to address the circumstances that caused
the childrens need for protection;
(b) services
the Director offered and the parent refused;
(c) parents
circumstances including limitations (such as substance abuse) that might
prevent the parent from making use of the offered services;
(d) Directors
previous experience with the family;
(e) type
and severity of harm done to the children; and
(f) history of abuse, neglect or harm within the family.
See: Manual,
at 3.23-3,4,
[428] In this
respect, the Form A simply stated:
There were no less disruptive
measures available at the time of the removal. The children were initially
placed in an approved foster home, but were then placed with family members the
following day.
[429] The
reality was that there was no information that the Director could provide about
any services that were offered by the Director or of J.P.s response because
the Director did not offer any to the children nor to J.P. to assist her in
dealing with the childrens disclosures of sexual abuse. The Director could not
inform the court about J.P.s willingness to speak with her about the
Directors perceived need for intervention because other than Mr. Stricklands
discussion with her on December 31, 2009, the Director did not attempt to
speak with her about it. Other than to falsely describe mental health concerns
in a manner that suggested they existed as far back as October 2009, the Director
did not provide any information about her previous experience with the family, e.g.:
(a) the involvement of Messrs. Strickland and Tymkow in the report of physical
abuse and their letter to B.G. that Mr. Strickland agreed to withdraw; (b)
the ongoing information provided by J.P. to the Director throughout December
2009 concerning the sexual abuse; (c) the letter from Dr. Edamura; (d) and
information suggesting B.G. abused steroids and had been physically violent to
J.P. in front of the children.
[430]
The Director is also required in the Form A to advise the court of the
proposed plan of care for the children. In this case, the Directors plan was
briefly stated as an open-ended plan and in a manner to cause a reader to
believe that the onus rested with J.P. to address the Directors child
protection concerns:
Currently the children are on a
visit with family members. The Director hopes to maintain placement with family
while the mother addresses the child protection concerns.
[431] I find the
Directors plan, predicated on the Directors hopes, to be wholly deficient.
It fails to address the best interests of the children because it implies that
until J.P. addresses the Directors concerns, the children will remain in foster
care. It also reflects the Directors belief that there was no merit in the
sexual abuse allegations and that J.P. was the problem, not B.G.
[432] The information
conveyed by the Form A to the judges of the Provincial Court who heard
various applications was a manifestly inaccurate impression of the
circumstances in which the Director apprehended the children. At no time did
the Director return to Provincial Court or to this Court during the First Trial
to advise of the errors in the document.
[433] The social
workers involved in preparing and reviewing the Form A did not provide any
explanation for their failure to ensure that the document contained an accurate
statement of the facts.
[434] Mr. Strickland
reviewed and approved the Form A before it was delivered to the Provincial
Court. As team leader and the social worker in charge of the case in Mr. Tymkows
absence, Mr. Strickland knew of the factual errors in the document. He
offered no explanation for his failure to appreciate and correct the errors in
the document before it was submitted to court. I found his attempts to minimize
many of the profound misstatements in the Form A to reflect adversely on his
credibility. Even if it could be said to be true, his evidence that he realized
the document contained errors a few months later does not excuse his conduct.
He took no steps to correct the errors at any time, even when he claims he
learned of them, and in failing to do so, he continued to demonstrate his
closed mind towards the sexual abuse allegations. His indifference to accuracy
and accountability perpetuated the emotional upset to the children from being apprehended
from their mother and kept in foster care. From his direct involvement with the
case, he was aware of all of the facts since at least the inception of Intake
3.
[435] In all, I
am satisfied that Mr. Strickland acted in breach of the Directors obligation
to make full, frank, and accurate disclosure. Whether the standard of care is
that of a reasonable social worker or of a careful parent because the children
were in the Directors care at that time, makes no difference. The standard of
care required the Director to provide accurate information to the court for the
presentation hearing to advance the best interests of the children (per CFCSA
ss. 4, 35; Regulations, ss. 2, 4; and Manual, pp. 3.23-2
to 3.23-4).
[436] Although
she came to the case late in the day, Ms. Caffrey was sufficiently and
directly involved with it such that she either knew or was recklessly
indifferent to the truth of some or all of the contents of the Form A. I do
not find that she was malicious towards J.P. or the children. She did not,
however, provide any explanation for misstating the facts that she had to know,
from her own direct involvement in the case, were not true other than to
suggest she did her best to prepare the document in circumstances where she was
not personally aware of all of the facts. She struck me as having taken a
casual approach to the veracity of the facts reported in the drafts of the
report to court. I find that she was in breach of the standard of care to
ensure that it was accurate.
[437] I have
made a similar determination for Mr. Tymkow. He knew or was recklessly
indifferent to the truth of the contents of the document concerning his
personal dealings with J.P. and the family. In addition, had Mr. Tymkow
read through the Ministry file, or at least the notes in MIS, he would have
discovered some of the other errors in the document as well. In failing to take
any steps to check on the accuracy of the contents of the Form A, he was,
like Ms. Caffrey, in breach of the standard of care.
[438] In closing
argument, the Province conceded that the Form A could have been drafted
better than it was, and that it contained many errors. The Province also
conceded that the case law requires the Director to err on the side of
caution to ensure complete disclosure in the report to court, and that the
Form A should have reported:
(a) the sexual abuse allegations;
(b) the
context and circumstances in which the Supervised Access Order was made; and
(c) the
advice from J.P.s family to the Director that J.P. loved her children and
would not do anything to hurt them and that the children were safe.
[439] With
respect to the reports of sexual abuse of the children, the Province conceded
that they remained J.P.s dominant message and were arguably the basis for
her emotional deportment in late December, 2009, so that mention of the sexual
abuse allegations in the Form A may have provided the court with a better
understanding of the background and context.
[440] Nonetheless,
the Province maintained its position that the Form A was essentially accurate
and contained a handful of minor inaccuracies, a position with which I cannot
agree. The Form A was riddled with significant factual errors and
misstatements.
[441] I do agree
with the Provinces submission that reports to court may be prepared in rushed
circumstances so that errors may be made that can go undetected until a later
stage, such as the protection hearing. This is not such a case. There is no
excuse for the egregious factual errors, misstatements, and omissions contained
in the Form A in the circumstances of this case, especially where the need
for factual accuracy was reinforced by Ms. Le Beau. Nor is there any
excuse for the Directors failure to take any subsequent steps to inform the judges
of the Provincial Court and this Court of those defects, or for the Directors
ongoing reliance on the veracity of the information in the document before both
courts. Instead of rectifying the errors in the document, the Director continued
to rely upon the Form A in subsequent court attendances, including the
application brought by B.G. in this Court in August 2011 for an order for
interim sole custody of the children. The Director failed to correct the defects
in the document at any time during the First Trial even though the Directors
application in the Apprehension Proceeding to extend her custody of the
children, which was being heard as part of the First Trial, was founded in part
on that document.
[442] This is
one of those cases, given the critical nature of the errors, misstatements and omissions
made by the Director, that had the Director not withdrawn and filed a Form B
in the First Trial, so that the case proceeded to disposition on the merits, I would
have found that the Director had no basis for the Apprehension, that she had
acted without regard for her disclosure obligations in respect of the Form A,
that bad faith and recklessness permeated the conduct of her social workers
involved with the document, and I would have ordered the children returned to
J.P.
[443] In
conclusion, the Director fell afoul of her legal obligation and the standard of
care to provide full and frank accurate disclosure in the Form A. The report
to court did not provide a proper and accurate context to the Provincial Court
judges involved in the hearings and applications. The Director did not act in a
fair and even-handed manner.
IX. THE
DIRECTORS ONGOING SUPPORT OF B.G.
A. The Plan to Return the Children to B.G.
[444] As I will
chronicle in this section, the Director had determined by spring 2010 that custody
of the children should be given to B.G. She had no intention of returning the
children to J.P., as she held the unreasonable view that J.P. was the source of
the protection concerns, not B.G. The Director encouraged B.G. to apply to this
Court for interim custody so that, as the parent entitled to custody, the
Director could return the children to him (the CFCSA refers to returning
children to the parent apparently entitled to custody). I agree with the
plaintiffs submission that the Directors efforts to support B.G. as the
custodial parent increased over time, so much so that the Director took
ownership of this plan and steadfastly acted to advance the interests of B.G.
as opposed to those of the children whose interests she was statutorily
mandated to protect.
[445] The
Directors plan was a manifestation of the Directors failure to assess and
investigate the reports of sexual abuse and of Mr. Stricklands misfeasance.
[446]
As I noted earlier in these reasons, the Director formed the view early
on that J.P. suffered from mental health issues significant enough to pose a
risk of harm to the children per s. 13 of the CFCSA. As a result,
the Director considered J.P. to be the source of the protection concerns
regarding the children, a view reflected in Ms. Feenies report to her
client on March 22, 2010, well before B.G. met with Dr. Eirikson:
Unless [J.P.] is participating,
there is no point in the PCA [parental capacity assessment] being done on
[B.G.] — he is not the real concern.
[447] The
Director never possessed an opinion from a health care professional that J.P. had
been diagnosed with a mental illness. The most she had was Dr. Eiriksons
opinion. In his report, he opined that J.P.s psychological test results showed
that J.P.s profile was within normal limits with no indications of significant
psychopathology except in one area of overly suspicious ideation. He determined
that she suffered from a mixed set of personality features that involved suspicion
of the motives of others, some difficulty controlling anger, reluctance to
provide information, and at times presenting with a dramatic presentation. Dr. Eirikson
referred to acute mental health once, in respect of J.P.s pressured speech,
hypomanic features and suspiciousness, concluding, In my opinion, as stated
above, [J.P.] has a mixed personality condition related to highly suspicious
thinking, manipulation and dramatic presentation. That, he said, was the
deficiency he found in his parental capacity assessment. Otherwise, he opined
that:
[J.P.] does have many but not all
of the necessary emotional and psychological capacity to appropriately parent
the children. Observed on the positive side is [J.P.] loves her children,
helping them develop educational artistic and phsyical [sic] capabilities, can
provide for hom[e] organization and pleads for their return to her care as she
had been the one who did absolutely everything for them.
[448] Even more
importantly, he does not state that she poses protection concerns for the children.
[449] Nonetheless,
the Ministry reported its assessment of its protection concerns regarding J.P.
as high risk.
[450] The
Director maintained her adverse opinion of J.P.s mental health despite
information contradicting it. For instance, the Director rejected opinions from
medical professionals who provided letters confirming that J.P. did not suffer
from mental health issues. She rejected an assessment contained in Vancouver
General Hospital records dated December 28, 2009 (made as a result of J.P.s
attendance at the hospital for severe stress and suspected heart palpitations)
that J.P. was not suffering from any thought disorder, depression, or suicidal
ideation. Over the course of the period in question, J.P. repeatedly endeavored
to prove to the Director that she did not suffer mental health issues and was
fit to parent her children.
[451] In late
March 2011, J.P. called Ms. Pop to ask which health care professional she
should see to satisfy the Director that she did not suffer from mental health
problems. Ms. Pop advised J.P. to obtain a referral from her family doctor
to a psychiatrist, explaining at trial that she took this approach believing
that J.P. would not trust any health care provider the Director selected. J.P.
sought the referral from Dr. Edamura. He arranged for a further
consultation with psychiatrist, Dr. Abdullah Sidky, whom J.P. had been
seeing as a result of a prior referral.
[452]
Before she met with Dr. Sidky again, J.P. was given a risk
reduction service plan from the Director that identified deficiencies she
needed to address. In the document dated April 4, 2011, the Ministry identified
the risks she posed and the measurable outcomes to reduce/eliminate risk. The
thrust of the document concerned risks said to be arising from J.P.s purported
mental and emotional ability and the Directors requirement for J.P. to
ameliorate those risks through treatment through a psychiatrist. The document
made it clear that one of the things J.P. was required to demonstrate was that
she was able to discuss her role in the reason her children were removed from
her care. Other requirements included:
[J.P.] is able to able to [sic] listen to others without
interrupting to insist on repeatedly explaining her own point of view.
[J.P.]s psychiatrist states she has been participating in
treatment and she has insight into her behaviour and she understands the
appropriate boundaries in her interactions with her children.
There are no reports that [J.P.] exposes her children to
matters about parental breakup or family distress.
[J.P.] is able to discuss matters in a calm and rational
matter.
[J.P.] is [sic] can list at least three strategies she is
able to use to manage her stress.
[J.P.]s psychiatrist reports that she is able to cope with
day to day stresses in her life.
[J.P.] is able to list at least
three reliable supports she can access in times of stress.
[453] Dr. Sidky
provided a diagnosis favourable to J.P. He relied on standard diagnostic
methodology employed by psychiatrists (AXIS I to V). He described J.P. as a naïve,
trusting, honest and hard-working person. Dr. Sidkys opinion was
rejected by Ms. Pop on the basis that he did not have a full picture of
the facts.
[454]
Dr. Sidkys report also informed the Director that J.P. had
presented with stress and anxiety but that she did not suffer from mental
illness. He said in his report:
[J.P.] drifts in her conversation
and is confused about what is happening around her. However, she is slowly able
to gather her thoughts especially after she got in contact with professional
help.
[455]
Dr. Sidky also advised the Director in a subsequent report dated
April 14, 2011, written as a result of the follow-up referral, Dr. Sidky
wrote:
This is to certify that I have been following up [J.P.] since
December 08, 2010.
[J.P.] is of a sound mind and has no mental illness. However,
she is anxious about allowing her husband to have unsupervised visiting
privileges to her children. She accuses him of sexually assaulting her
children.
I will continue to follow her up
until the court decides about the future custody of her children.
[456]
There is some dispute about when Dr. Sidkys written opinions were
delivered to the Director. The Province says that it occurred by July 2011, and
if that is the case, then the Director had those reports well prior to the
start of the First Trial.
[457]
In one of his reports, Dr. Sidky expressed criticism of B.G.
without having seen him. If that was a reason for the Director to be concerned
about the integrity of his opinion concerning J.P.s mental health, a similar
opinion was delivered by Dr. Michael Elterman who had administered
clinical tests on J.P. In his opinion, there was no indication that she
suffered from any diagnosable mental health disorder. He wrote these
introductory comments in his report dated July 10, 2011:
The first issue is whether you have a diagnosable mental
disorder as concerns have been raised about paranoia and suspiciousness. The
second issue is whether the concerns and allegations you have raised concerning
possible sexual abuse are being used by you or whether they are genuinely
believed by you.
.
[J.P.] presents as an alert,
cooperative woman who seems haunted by what she describes as the children
telling her about their experiences. She recognizes that others have said that
it did not happen but she still has to reconcile in her own mind what she
heard. She says that the response of her husband was to attack her mental
health status. She believes that these responses attacking her mental health
status have been accepted by the Ministry without adequate substantiation. In
my conversations with [J.P.], she goes over the bits and pieces of evidence
including seeing a tear in the youngest child and the type of sexual games that
she says that the children have described and attributed to playing with their
father. [J.P.] says that she has resisted giving in to seek medication because
she believes that this would only add substance to the allegation that her
allegations arise from a place of being out of touch with reality.
[458]
Dr. Elterman then went on to identify and explain the various
psychological tests he administered to J.P. and set out his conclusion that her
clinical profile was entirely within normal limits:
The clinical profile is entirely within normal limits.
There is no indication of clinical psychopathology in the areas measured by the
clinical scales. The self-concept of these individuals is generally stable
and positive. She is normally a confident, optimistic person who approaches
life with a clear sense of purpose. Her interpersonal style is characterized as
being friendly and extrovert. She will usually present a cheerful and positive
picture in the presence of others. She is able to communciate her interests in
others in an open manner. The psychological testing results do not
indicate the presence of paranoia. She does feel persecuted but this may be
the result of the present case.
On the second issue of whether [J.P.] believes the
allegations I would respond as follows: Having heard [J.P.] describe her
concerns on a number of occasions, it struck me that she genuinely and
passionately believes that the children have been harmed. I believe that it is
unlikely that she has used an allegation knowingly to further a custody or
access dispute. From her emotions and the consistency of this related to what
she is speaking about, it is my opinion that she geniunely believes that the
children have been abused by their father.
[Emphasis
added]
[459] In both
cases, and without attempting to communicate with them, the Director rejected the
opinions of Drs. Sidky and Elterman out of hand on the basis that the medical
professionals had not possessed the requisite facts to make an appropriate
assessment and were advocates for J.P. The Director made no attempt to ensure
those experts had what she thought was the complete set of facts in hand before
disregarding their opinions.
[460] The
plaintiffs add to their list the opinion of Dr. Deborah Dunne, a clinical
counsellor assisting J.P. Dr. Dunne also provided written opinions
favourable to the issue of J.P.s mental health. The plaintiffs allege that Mr. Blandford
and Ms. Pop rejected out of hand Dr. Dunnes opinions, and were
openly hostile and antagonistic towards her during a meeting J.P. had arranged
in order to convince the Director that she did not suffer from mental health
issues and was fit to parent her children. In hearing the testimony surrounding
the meeting, including Dr. Dunnes evidence given at the First Trial
(which was imported into this trial), I am of the view that Mr. Blandford
and Ms. Pop were reasonably entitled to view Dr. Dunne as an advocate
for J.P., because she had described herself in that manner in one of her
reports, and to take that into account in considering the significance of her
opinions concerning J.Ps fitness to parent the children. At the same time,
however, I am satisfied that instead of attempting to discern if there was any
useful information that Dr. Dunne could provide, Mr. Blandford and Ms. Pop
were openly hostile, rude, and dismissive to her and to J.P. in the meeting
because they let their negative views of J.P. cloud their assessment of
information she brought forward.
[461] The
Directors ongoing negative opinion of J.P.s mental health was compounded by
the fact that the Director saw J.P.s concerns about the sexual abuse of her
children as a mental health issue. She continued to consider J.P. to be unreasonably
fixated on the belief that her children had been abused, and J.P.s increasing
anxiety and frantic presentation as B.G. was given unsupervised access only fed
into that view. This was despite the fact that the Director was made aware
during the First Trial of Mr. Colbys opinion that if B.G. had sexually
abused the children, then J.P.s presentation and conduct were understandable
and appropriately reflective of a parent trying to protect her children from
sexual abuse.
[462] Mr. Strickland
admitted that simply because someone is scattered or hard to focus does not
mean that they are not telling the truth, yet social workers reactions to
J.P., whom they saw as distraught and persistent in her pursuit of the sexual
abuse allegations, ranged from indifferent to visceral. On the other hand, they
reacted favourably to B.G., whom they saw as cooperative and intelligent. It did
not occur to them that he might be engaged in a deliberate tactic to dissuade
them from an investigation into the sexual abuse allegations or that he may
have had a motive to portray J.P. as mentally unstable.
[463] It is no
excuse for a government official to act wrongly against a person no matter how
annoying they may be to them: Prince George (City) v. Riemer, 2010 BCSC
118 at paras. 77-78.
[464] Sexual
abuse is one of the most pernicious forms of harm that children may suffer. In
this case, the evidence before the Director demonstrated a very high degree of
risk of sexual abuse having been committed. The Director chose to respond to
presenting personalities instead of carrying out a proper assessment or
investigation as required by the CFCSA and the standard of care. The
Director maintained a closed mind to the issue of J.P.s mental health and
related protection concerns. Having identified that she must see a psychiatrist
and having suggested she obtain a referral from her family doctor, the Director
then dismissed J.P.s attempts to comply with the Directors requirements.
[465]
I also find it highly troubling that the Director sought to prevent
disclosure to J.P. of social workers communications with B.G. The Director became
concerned to avoid disclosure to J.P. of social workers communications with B.G.
Emails between Ms. Lejko, Mr. Blandford, and Ms. Pop in June
2010 reveal their concern that some of their emails with B.G. had been read by
J.P. and their concern that all of their email communications with B.G. would
ultimately be disclosed to J.P. Ms. Lejko wrote a caution to her
subordinates on June 11, 2010:
Subject: emails to [B.G.]
In my conversation with [J.P.]
she tells she has seen emails between Xeni and [B.G.], please be aware that
anything we email to [B.G.] will ultimately be provided to [J.P.] in
disclosure. Thanks.
[466] As a
result, Ms. Pop chose to telephone B.G. and not to respond to his emails because
she understood their emails would not be secure. B.G. was also told that he
should not engage in email communications with Ministry staff, but he disregarded
their instruction.
[467] I do not
accept Ms. Lekjos explanation that her concerns arose solely from
Ministry policy to ensure the security of social workers communications with
parents through telephone calls. She admitted that Ministry policy not to email
outside the Ministrys secure network is not adhered to. Email communications
are regularly sent by social workers to parents. There was no basis for her to
suddenly insist on strict adherence to policy other than to avoid disclosure to
J.P. I am satisfied from all of the evidence, including Ms. Lekjo
admission that by May 2010 she believed that J.P. was going to commence legal
action against the Director, that the Director wanted to protect against
inadvertent disclosure of their communications with B.G. This was not the fair
and balanced approach required of the Director.
[468] Given the
Directors opinion that J.P.s mental health problems gave rise to protection
concerns, coupled with the Directors belief that B.G. posed no protection
concerns, the Director determined early on that custody of the children ought
to be given to B.G. In her evidence, social worker, Susan Allen, who took over
conduct of the case in May 2011 when Xeni Pop left on maternity leave, referred
to it as a plan to assist B.G. to obtain an order from this Court for custody
of the children so that the Director could hand care of the children over to
him. I am satisfied that the plan to return the children to their father had
its origins in Mr. Stricklands initial mishandling of the file in
December 2009 and the views he engendered while the case was with the Intake
team. Those views, I have found, directly influenced the members of the Family Services
team who took over the file.
[469] The Family
Services team decided to allow B.G. unsupervised access to the children in
March 2010. When the team received the parental capacity assessment report from
Dr. Eirikson, they concluded that B.G. was the parent to whom the children
should be returned. For that to happen, however, B.G. needed to obtain an order
from this Court in the family law action granting him interim custody.
[470] Earlier, on
February 1, 2010, a few hours after she learned from Mr. Strickland of the
VPDs advice that no charges would be laid against B.G., Ms. Lejko asked Mr. Strickland
if B.G. had brought a custody application pursuant to the FRA. He had
not done so by that point. In her evidence, Ms. Lejko explained that she
wanted to know if he was going to be a parent for us to work with. By that, she
wondered if he was going to be part of the proceedings going forward, seek
custody, or move on (because she had in the past seen fathers simply give up
and walk away).
[471]
The Director, through Ms. Feenie, contacted B.G. to determine if he
would be applying for custody. On February 4, 2010, Ms. Feenie reported to
Mr. Strickland and Ms. Caffrey about a meeting she had with B.G. about
a custody application:
Just confirming for your records that yesterday, we appeared
in front of Judge Weirer and she made the interim custody order pursuant to
s. 35(2)(a), an order for reasonable access to be supervised at the
discretion of the Director to the parents and set the commencement date for the
protection hearing for March 17, 2010 at 9:30.
.
I spoke with Dad prior to
attending court and although he was willing to attend court I told him it was
not necessary but I would advise the court of his willingness and his consent
to the order, which I reviewed with him. Please provide Dad a copy of the
interim order. I did advise him that he should expect to be served sometime
prior to March 17th with an application for a further order under
the CFCSA which would likely be a 3 month TCO given the unresolved FRA issue
and our concerns about mom. He was fully aware of the issue of her being the
parent entitled to custody under the CFCSA as things currently stand and the
only parent we can thus return to without a further order for custody to him
under the FRA. I gathered he will be seeking a custody order in the Supreme
Court proceedings.
[472] B.G.
brought the application for interim custody on June 2, 2010. Ms. Feenie
was not notified of the application date in advance, and was not able to
attend. B.G. secured the attendance of Ms. Pop by serving her with a
subpoena.
[473] The
application was dismissed. B.G. put aside any thought of taking any further
steps to apply again, much to the concern of the Director. He was more
interested in pursuing his business endeavors.
[474] The Director
encouraged B.G. to apply for interim custody again after he received some
parental coaching from a counsellor named John Day. In the meantime, the
Director kept the children in her care pursuant to a temporary custody order to
allow time for a recalcitrant B.G. to take steps to remedy the defects in his
custody application and bring it on again as soon as possible.
[475] The Directors
concerns are reflected in a number of email communications. I have set out some
examples in a number of the paragraphs that follow.
[476]
On September 28, 2010, Ms. Pop wrote to Ms. Feenie expressing
concern that the children continued to remain in foster care:
Hi Corrine,
Sorry for the delay. After
consutling with Bruce and Terry, and taking your advice into consideration we
will agree to join the two matters. My concern is that the conclusion of the
CFCSA matter is a little under 6 months away, leaving these children in foster
care, when there are two reports indicating that with a little support, dad
could care for them. I am available to attend court on October 8.
[477]
Ms. Feenie responded the next day, stating:
Thanks for getting back to me.
I hear you about the reports but unfortunately it is the
court, not the assessors, that makes the decision.
I am hoping that Mr. Justice Walker will be inclined to
have this dealt with in an expedited manner.
That is
not likely to happen though if Dad continues to be unrepresented and doesnt
take a stronger position in terms of having the children returned to him
immediately.
[Emphasis
added]
[478]
The Directors views about B.G. having custody of the children were
clearly and publicly expressed during a case planning conference before Master
Caldwell in October 2010:
From the directors perspective, the director is in a
position that they would – the director would be willing to – – to in fact
return the children to the father if he were the parent entitled to custody for
the purposes of the [CFCSA]. He is not unfortunately. The children
were removed from the mother, and until theres a custody order in favour of
[B.G.] we cannot return the children, so they are effectively sitting in a
foster home, in foster care, until this matter can be resolved.
Now, certainly Robert Colby does make recommendations, as I
indicated, that [B.G.] should be involved in – – with some parenting coaching
around some issues around appropriate discipline.
That is something, though – –
as I say, were – – were kind of hung up in this process until a court makes
an order in his favour, or doesnt, I suppose. Then the children may be in care
longer.
[Emphasis
added]
[479]
On October 8, 2010, Ms. Feenie reported on the case planning conference
before Master Caldwell:
Directions were provided in terms
of setting this matter down for a 10 day hearing with the CFCSA matter being
heard at the same time as the Divorce proceedings. We understand that we likely
wont be setting dates until at least May and we are awaiting [B.G.]
determining whether he will retain counsel for this or not. Both you and I (and
several judges) have urged [B.G.] on numerous occasions to get counsel and I
have suggested to him that with the assistance of counsel, he may well be able
to get an interim custody order well in advance of any lengthy hearing. Anyway,
he has one month to determine that before dates are set.
[480]
On January 13, 2011, Ms. Feenie wrote to Mr. Blandford and Ms. Pop
reporting that B.G. had yet to advise whether he was retaining counsel and
booking a date for the joint hearing:
Bruce,
The issue is this, I have had no response from [B.G.] about
whether he is getting a lawyer or around booking Supreme Court trial dates and
I am told by [J.P.s previous lawyer] that she has left messages for him around
the same issue and received no response.
These kids are going to grow old in care while he
continues to procrastinate. I sent him a letter a couple of days ago asking
him to contact me around this and I havent heard back.
Can you please get a hold of him
and impress upon him that he needs to connect with me around getting the
Supreme Court Trial dates set.
[Emphasis
added]
Mr. Blandford responded to her, advising that he tried
to contact B.G.
[481]
On April 28, 2011, Ms. Feenie responded to an email from B.G.
seeking to discuss with her the interim custody application. She told him that
she anticipated filing an affidavit on behalf of the Director in support of his
application. She also suggested that the Director was prepared to work with his
schedule, was content to have the application brought in June, and was prepared
to leave the children in foster care in the interim:
I would anticipate filing a detailed affidavit on behalf of
the Director (likely Team Leader Bruce Blandford or Xenis replacement who will
be coming on board shortly) which would be largely determinative of the issues.
I would strongly urge you to make such an application and
would ask you to consult with me as to my availability as I will need to be
there.
Also, in response to the comments you made to me yesterday
about the timing considerations of such an application, please keep in mind
that assuming you are successful on the application, the Director does not need
to immediately return the children to you (it just allows us to) so the
application could be made earlier in June and need not correspond directly with
the end of the childrens school year.
Lets talk Monday if that works
for you.
[482] On June 7,
2011, she wrote to Mr. Blandford and Ms. Allen to forward draft
application materials for their review, and asked one of them to swear to the
affidavit. Mr. Blandford questioned the accuracy of his affidavit confirming
that Intake 5 was opened on December 27 as a result of B.G.s telephone
call to Mr. Strickland. Unfortunately, he did not question the accuracy of
that part of his affidavit that advised that J.P. assaulted him (in an incident
that I discuss in a subsequent section).
[483] Ms. Allen
met with B.G. later in the month to review the application materials and to
otherwise prepare for the interim custody application.
[484]
Ms. Allen followed on with the Directors plan to return the
children to B.G.s custody without engaging in any critical analysis. In her
testimony, she said:
Q All right. Now, Ms. Allen, you were aware
that [B.G.] was proceeding to court to obtain interim custody of his children,
correct?
A Yes.
Q So did you not consider it to be important to
review evidence that is being tendered by the mother and the mothers lawyer in
preparation for that hearing?
A It might be helpful if I go back and describe
the circumstances from the time that I came into the team. As I head mentioned
the other day, I joined the team at the beginning of May of 2011. Xeni Pop, I
took over her caseload, which was 30 plus files. That caseload had been not
attended to for the month of April while she was gone and before I came on.
As I had mentioned before, the –
– the plan for [B.G.] to get interim custody was made prior to my joining
that team, and so the conversation about why that was, the reasons for that had
been done before I arrived. And so as – – with all the other files that I had,
I tried to maintain the continuity that was already in place, and trying to get
up to speed on every file, including this file, to the best of my ability.
But no, there wasnt always
the opportunity for me to read all the documents relative to this file prior to
the court hearing. And it was my understanding from information that I had
received from Xeni Pop and from Mr. Blandford and from Corinne Feenie that
this was likely to be resolved in the August court dates.
Q So lets see if Ive got your evidence correct.
Youre saying that youre busy, the decision had already been made, and prior
to the August 2011 court hearing there was no discussion about the merits of
what was happening, right?
A I
dont recall a discussion of the merits. There was discussion of what was
more or less the plan, and that, as I said, was provided to me and – – by all
three of the people I mentioned, and so I was doing what was needed on my
behalf to support that plan that had already been determined before I got
there.
[Emphasis
added]
[485] B.G.
eventually applied a second time for custody in August 2011 with the Directors
significant assistance. Ms. Feenie prepared the materials for B.G.s
application, including a substantial affidavit from Mr. Blandford who was
unabashed his support for B.G. and highly critical of J.P. The Directors counsel
also attended court to assist B.G. with his submissions. By this point, the
Director had clearly moved into an advocacy role in supporting B.G.s custody
of the children.
[486]
At the hearing, the Director remained steadfast in her position that
J.P. suffered from significant mental health issues that posed s. 13
concerns for the children and that she had fabricated evidence of the alleged
sexual abuse. The Director vigorously supported B.G.s application in her
submissions:
The director does at this point oppose a return obviously to
[J.P.] as the director continues to have protection concerns in relation to
her. And the director does not find that the mental health reports that she has
provided to this court in this proceeding sufficiently address those concerns
.
The director does support the children returning home to
[B.G.]. The director takes the position that it is consistent with their safety
and well-being
.
[J.P.] has either, in the
directors opinion, either consciously for the purpose of her divorce and
custody proceedings or for some yet not fully understood unconscious reason
combed through her history with [B.G.] and created a story that he has been
physically and sexually abusing their children and consciously or unconsciously
then manipulated the children to make disclosures, which she has then
videotaped in December.
[Emphasis
added]
[487] In
addition to her position that the sexual abuse allegations were wholly unfounded,
the Director maintained that the allegations of physical abuse were, at most,
an inappropriate form of discipline, and that B.G.s shortcomings had been
remedied with counselling.
[488] B.G.s second
application for interim custody of the children was dismissed. As a result, the
Director continued to assert her jurisdiction over the children and kept them
in her care pending the outcome of the First Trial at which B.G. sought a
permanent order for sole custody. As I will go on to discuss, the Director did
so even though she later acknowledged, in December 2011, that it was possible
that B.G. may have sexually abused the children.
[489] The
Director remained intent on supporting B.G.s claim for custody, regardless of
any evidence that might reasonably demonstrate the veracity of the sexual and
physical abuse allegations against him. The Directors treatment of B.G. and
J.P. was not, as the Province submits, even handed.
[490] For
example, the Director supported B.G.s second interim custody application
despite the production of a report showing pornographic images that J.P.s
newly retained counsel advised the Director in July 2011 were obtained from the
hard drive of B.G.s home computer. The report, prepared by TCS Forensics (TCS
Report) identified approximately 9,000 JPEG images, obtained from the internet
and stored on the hard drive, which depicted females, including some who
appeared to be under age, engaged in various erotic poses or having oral sex. TCS
also found at least six pornographic websites, accessed prior to B.G.s arrest
on October 9, 2009, with names suggesting teenage pornographic content.
[491] During the
hearing, following the Directors submission that the TCS Report was only
recently delivered and that there was insufficient time to consider it, the Directors
counsel was asked why the Director continued to support B.G.s application for
custody (as well as ongoing unsupervised access) instead of seeking a brief
adjournment to consider the report. The Directors response was:
(a)
the social worker handling the file was away on vacation;
(b)
other social workers were too busy with other cases to review the
report;
(c)
to question whether images were in fact taken from the hard drive of
B.G.s computer or if they were, whether the hard drive had been tampered with;
and
(d)
to downplay the potential significance of the images.
[492] Evidence
adduced in this trial showed, however, that the Director had considered the TCS
Report prior to B.G.s custody application but had summarily dismissed it
without any consideration or enquiry being made as to its significance for the
issues in the case. Ms. Feenie drew the report to Mr. Blandfords
attention in July 2011. Mr. Blandford looked at what he described as
grainy copies of the images from the hard drive in July prior to the hearing.
He said he could not make out the images due to their poor quality, but he did
not ask for better copies or request any further action to be taken in respect
of evidence that might negatively impact on the Directors support of B.G. As a
result, no steps were taken by the Director prior to the hearing of the second
interim custody application to determine whether the images could impact on
B.G.s ability to parent in the circumstances.
[493] It was
only following the hearing and as a result of my concerns about the Directors
support of B.G. in the face of the TCS Report, that the Director agreed to pay
for Mr. Colby to assess the impact of the images (ultimately, Mr. Colby
determined that the images did not suggest pedophilia).
[494] The
dismissal of B.G.s renewed custody application in August 2011 was a set-back
to the Directors plan to return the children to B.G. No appeal was taken and
instead matters proceeded to trial.
[495] Before
turning to the Directors support of B.G. in the First Trial, I wish to set out
my findings in respect of the plaintiffs claim that the Directors counsel, Ms. Feenie,
acted with malice in respect of the hard drive issue, and that the Director is
liable in misfeasance for the conduct of her agent. To nail down the provenance
of the hard drive, Ms. Feenie sought production of the hard drive that
J.P. had previously delivered to the VPD. Production orders for it and
videotapes of interviews conducted by the police were sought and obtained, but
compliance by the VPD was so elusive that during the First Trial, it was
necessary to order a representative of the VPD to attend in Court in January
2012. That attendance resulted in complete production of the VPDs files.
During this process it was discovered that Detective Rowley had previously told
Ms. Feenie that the VPD had destroyed the hard drive.
[496] The
plaintiffs assert that Ms. Feenie acted with malice because she failed to
disclose that she knew from her discussion with Detective Rowley on October 4,
2011 that the hard drive had been destroyed. They refer to Ms. Feenies
file notes of that discussion which note, hard drive showing as destroyed and
a further note, wouldnt have been of any evidentiary value. They also point
to an email that Ms. Feenie sent to the Director on September 20, 2011
advising that the hard drive was destroyed. The plaintiffs point to her
submissions in Court concerning the whereabouts of the hard drive on January 6,
2011, where she said that the VPD did not produce it to her or the Director,
that she made an inquiry about it some time ago, and learned that the VPD, for
reasons she did not know, had not located it.
[497] According
to the plaintiffs, the Director should have informed them (and the Court) of
her state of knowledge prior to and during the First Trial. Ms. Feenie
testified that she intended to advise the Court about the hard drive when the
issue arose, but unfortunately, she did not do so when it did.
[498] I agree
with the plaintiffs submissions that when giving her evidence, Ms. Feenie
appeared to have a very poor recollection of her dealings with Detective Rowley
about the hard drive. I also agree that she should have informed them that the
hard drive had been destroyed when she learned of it. But I do not find that Ms. Feenie
acted with malice when dealing with this issue or with J.P. overall. Although I
found that she did not always display the degree of forthrightness I would
expect of an officer of the Court, in my respectful view, I consider her to
have, over time, become too closely allied with her clients dislike of J.P.
and the Directors support of B.G.
[499] I return
now to the Directors ongoing support of B.G. following the dismissal of his
second custody application. The Directors position in the First Trial shows
that she continued to act in a manner designed to facilitate B.G.s efforts to
obtain an order for custody from this Court.
[500] The extent
to which the Director had become an advocate for B.G. was apparent in her
approach to J.P.s witnesses during the First Trial. For instance, the Director
not only challenged Dr. Edamuras evidence concerning his dealings with
the children, but she actively sought to discredit much of it, including his
credibility and qualifications.
[501] The
Director maintained her assertion that J.P. had coached the children and had
fabricated their disclosures for a significant period, well into the First
Trial. Even though the Director did not know that I would ultimately find from
the evidence adduced in the First Trial that J.P. did not coach the children or
fabricate the disclosures, the Director was well aware of Mr. Colbys
opinion (contained in his first report dated September 13, 2010) that he found
no evidence of coaching or fabrication and had ruled it out. The Director
relied on other aspects of his opinion, however, to support her position that
the custody of the children should go to B.G.
[502]
The Directors position that there was no veracity to the sexual
abuse allegations remained unchanged during the First Trial until she delivered
to the Court on December 17, 2011, a written position statement dated December
14, 2011 provided to the parties (December 14 Statement). Up until that time,
the Directors position was that there was no evidence to support the sexual
abuse allegations.
[503]
In the December 14 Statement, the Director confirmed that she was
seeking a further extension of the temporary custody order granted by Judge
Davis on April 14, 2010:
The Directors application for a 3 month extension of the
temporary custody order of the Honourable Judge Davis of April 14, 2010 was
filed on July 14, 2010 and, as of December 14, 2011, that continues to be the
order sought by the Director at the conclusion of this hearing if [J.P.]
remains the parent entitled to custody as defined under the [CFCSA].
The Directors concerns in
relation to [J.P.s] mental or emotional health continue and, in the Directors
opinion, have not been sufficiently addressed to ensure the safety and
well-being of the children if returned to her care.
.
[504] The
Director then went on to set out her support for an order that custody of the
children be given over to B.G.
[505] In
response to my direction that the Director deliver her formal position in
written form, the Director
acknowledged in the December 14 Statement that it was possible that B.G. had
sexually abused the children:
As of todays date, on the basis of the Directors
investigation and involvement with this family and on the information currently
known to the Director, the Director remains supportive of [B.G.s] application
for custody of the children under the Divorce Act or FRA.
.
The Directors position, as of this date and without hearing
all of the evidence that will be before this court, is that there is
insufficient evidence to establish that [B.G] has sexually abused his children
or that [B.G.] is the source of the sexual knowledge that these children have
displayed.
The Directors position is that there is insufficient
evidence at this juncture to determine the source of that knowledge and the
Director does not claim to have any particular superior ability to determine
that. There are several possibilities: 1) [B.G.] sexually abused the
children;
.
[Emphasis
added]
[506]
The Director went on to point out five other possibilities for the
source of the childrens inappropriate sexualized knowledge:
2) Someone else sexually abused
the children; 3) [B.G.] exposed the children to sexual materials or talk that
gave them this knowledge; 4) Someone else exposed the children to sexual materials
or talk that gave them this knowledge; 5) [J.P.] exposed them to sexual
materials or talk either advertently to build the allegations against [B.G.] or
6) inadvertently by her repeated questioning of them about the allegations
which was also influenced by her beliefs about [B.G.]. There may be other
possibilities that the Director hasnt considered. Regardless, to date the
Director has not been able to determine the source of this knowledge and is
certainly unable at this point to say that there is sufficient evidence to prove
the basis of that knowledge.
[507]
The Director then set out her position that there was insufficient (as
opposed to no) evidence to establish that B.G. sexually abused the children:
On the basis of the Directors coordinated investigation with
the police, the experts consulted in relation to this case, the expert
appointed by this court and the Ministry social workers own dealings with this
family, the Director formed the conclusion that there is insufficient
evidence to establish that [B.G.] sexually abused his children or presents a
substantial risk to his children in terms of sexual abuse.
[Emphasis
added]
[508] From her
position that there was insufficient evidence, it is appropriate to infer that
the Director was acknowledging that there was some evidence that B.G. had sexually
abused the children. The Director did not provide any explanation for the
change from her previous position that there was no evidence that B.G. had
sexually abused his children.
[509] Thus,
having acknowledged that it was possible that B.G. sexually abused the
children, the Director must be taken to have understood the possible risk of
harm B.G. posed to the children. Nonetheless,
the Director maintained her ongoing support of B.G.s application for permanent
sole custody. The Director also wrote in the December 14 Statement that if
the Court found or was concerned that B.G. had committed physical abuse, she
would lead evidence to show that it was not of a nature that would have caused
the Director to apprehend the children from him, and further, that any
unresolved problems could be resolved by counselling. The Directors support of
B.G. was so unyielding that she suggested the children should remain in foster
care even if the Court accepted J.P.s evidence concerning physical abuse. The
Director proposed that in that event, the children should continue to remain in
foster care while B.G. engages in further services and the children receive
further therapeutic intervention.
[510] The
Director firmly maintained her support of B.G until March 29, 2012, which was
shortly after new counsel was appointed. Until that time, the Director remained
unyielding in her support of custody to B.G. and in her dim view of J.P.
B. Temporary Custody Orders
[511] Meanwhile,
the children were in the care of the Director that entire time, having been
apprehended on December 30, 2009.
[512] The
plaintiffs claim that the Director protracted proceedings and kept the children
in her custody well beyond the maximum time limit set out in the CFCSA in
furtherance of her support (which evolved into a plan) for B.G. to take custody
of the children. The Province responds that J.P. consented to the temporary
custody order and that she failed to obtain an order rescinding her consent. It
further says that the hearing of the Directors application to extend the
temporary custody order was repeatedly adjourned at J.P.s request.
[513] The CFCSA
sets strict time limits for temporary custody orders in favour of the Director,
depending upon the age of the youngest of the children in custody. In this
case, with the youngest child being under five at the material time, a
temporary custody order could not exceed three months: s. 43(a). The Act
permits extensions of temporary custody orders. Nevertheless, even where
extensions are granted, the total period that a child may remain in the
Directors care under a temporary custody order is proscribed. According to
s. 45, where the youngest child is under five, the total period during
which the Director is permitted to keep the children in her care under a
temporary custody order is 12 months from the date of the original order.
[514]
The Manual (3.33-4) elaborates that it is the childs best
interests that must be considered in respect of the length of time a child
should remain in the temporary custody of the Director:
Section 45 of the Act reflects the general principle
that decisions relating to children should be made and implemented in a timely
manner.
In addition, the childs best
interests must be considered when making decisions regarding the length of time
a child remains in the temporary custody of the director or another person.
[515] It also
bears repeating that s. 2 of the CFCSA, which enumerates the
principles that guide the interpretation and administration of that Act,
includes at subparagraph (g), decisions relating to children should be made
and implemented in a timely manner.
[516] The
Directors first appearance in Provincial Court was on January 6, 2010.
Although J.P. sought to proceed immediately to a hearing on the merits, she was
in the midst of retaining counsel, and the presentation hearing was adjourned
at the suggestion of the Director. The Provincial Court judge was also of the
view that an adjournment would assist J.P. to retain counsel. The children
remained in the Directors care pending the protection hearing, which did not
take place within the statutory requirement of 45 days. The protection hearing was
set to proceed before Davis P.C.J. on April 14, 2010.
[517]
The protection hearing did not proceed on that date as scheduled.
Instead, Davis P.C.J. issued a temporary custody order pursuant to s. 41(1)(c)
allowing the Director to keep the children in her care until July 14, 2010. No
finding was made that the children were in need of protection. Rather, the
temporary custody order was entered as a s. 60 consent order. The order
also authorized the Director to provide both parents access to the children at
her discretion. The order stated:
THIS COURT ORDERS that pursuant to section 41(1)(c) of the Act,
the children remain in the custody of the Director for a period of three months
to July 14, 2010;
THIS COURT FURTHER ORDERS that
pursuant to section 55 of the Act, [J.P.] and [B.G.], the parents of the
children, may have reasonable access to the children, supervised at the
discretion of the Director.
[518]
The transcript of the hearing indicates that J.P. did consent to the
temporary custody order. However, in providing her consent in what I am
satisfied were extremely distressing circumstances for her (and without counsel
in attendance), J.P. made it clear during the hearing that she did not want
B.G. to have unsupervised access to the children.
[519] Even if
the Director understood J.P. to have provided her unqualified consent to the
temporary custody order, it was apparent by June 2, 2010 that J.P. no longer
consented. On that date, which was the date B.G.s first application for
interim custody was heard, J.P. served the Director with an application to
withdraw her s. 60 consent and to compel B.G.s access to the children be
supervised. The application was not heard for reasons I will discuss later, and
it was not advanced again until much later in August 2011 after J.P. had
retained her present trial counsel.
[520] Faced with
notice that J.P. had withdrawn her consent to the temporary custody order and
was seeking an order to that effect, the Director did not proceed with a
protection hearing and instead filed an application to extend the temporary
custody order on July 14, 2010, the last day provided by Judge Davis order.
The hearing was adjourned for one week to July 21 because J.P. had newly
retained counsel to respond to it. Also adjourned was J.P.s application to
compel B.G.s access to be supervised, although that adjournment was granted
over J.P.s objection.
[521] When the
parties were back in court on July 21, J.P.s lawyer advised Romilly P.C.J.
that J.P. opposed the Directors application to extend the temporary custody
order, and that she wanted it heard and determined at that time. However, at
the Directors request, and ultimately without opposition from J.P.s lawyer,
Romilly P.C.J. adjourned both applications over to a case conference pending
the delivery of Mr. Colbys report which was due very soon. When the
parties next appeared on September 14, J.P.s counsel requested an adjournment
to consider Mr. Colbys report, which had only recently been delivered.
Subsequently, at a case planning conference in this Court on October 8,
2010, the Director advised Master Caldwell, without objection from J.P. and
B.G., that the extension application and the family law action should be tried
together before me. An order was issued accordingly.
[522] The
foregoing raises the question of whether the conduct of the parties in respect
of the adjournments alleviated the requirement for the Director to move to
determine the protection concerns in a timely manner. The analysis raises for
consideration the circumstances in which the Director may apply for an
extension of a temporary custody order.
[523]
The CFCSA permits the Director to apply to extend a temporary
custody order where the circumstances that caused the child to need protection
are likely to improve within a reasonable time and so long as the Director
does so before the order expires: s. 44(1). According to the Manual
(3.32-4):
The director may only apply for an extension to a supervision
order or a temporary custody order before that order expires where:
·
the supervision order or temporary custody order is still
required to ensure the safety and well-being of the child; and
·
the circumstances that led to the child being removed are likely
to improve within a reasonable time.
[524]
In the section addressing maximum time limits for a child to be in the
temporary custody of the Director, the Manual (3.33-4 and 3.33-5)
instructs as follows as to where an extension is in the childs best interests:
If the director determines that the parents situation is
improving and there is a significant likelihood that the child will return home
within a reasonable time frame, the director consults with contract legal
counsel to consider making an application to extend the temporary order based
on the childs best interests. The director uses the time limits set out in
section 43 of the Act when determining the length of time to request.
The director must complete an
assessment of the childs best interests prior to making the application.
[525] When the
Director applied for an extension of the temporary custody order on July 14,
2010, she did not hold the view that the circumstances that caused the
Apprehension were likely to improve within a reasonable time. The Director had
already decided that the children should not be returned to J.P. because she
thought J.P. was unreasonably obsessed with the sexual abuse allegations and
could cause the children emotional harm if they were returned to her care.
Moreover, B.G.s application for interim custody had just been dismissed the
previous month. In all these circumstances, the Director had no basis to
believe that the circumstances which caused the children to be apprehended were
improving and that the children would be returned home within a reasonable
time when she filed the extension application.
[526]
Instead, the Director filed the application to extend the temporary
custody order to allow B.G. time to prepare another custody application so that
the Director would be able to return the children to him. The Director sought
to file that application pursuant to s. 44, on the last possible day,
i.e., April 14, 2011, and then adjourned it.
[527] My
conclusion about the Directors plan to support B.G. is also evident from Ms. Feenies
subsequent comments to Master Caldwell at the October 8 case planning
conference that the Director was prepared to return the children to B.G. and
that they would remain in foster care until the Court granted him custody. It
is clear that the Director had no intention of returning the children to J.P.
[528] Thus, the
circumstances in which the children were apprehended from J.P. as well as the
childrens circumstances were not, in the Directors mind, likely to improve in
the foreseeable future.
[529] The CFCSA
permits the Director to apply to extend, for a specified period, the total
period for which she may keep children in temporary custody on the basis of the
childrens best interests: ss. 45(1)(a), 45(1.1). The application is
decided on an evidentiary foundation. The Manual (3.33-4) cautions that
Only in unique circumstances would the total time limit not be adhered to
based on the childs best interests.
[530] The
Director took the position with J.P. that the temporary custody order remained
in effect as a result of the mere filing of the extension application with the
Provincial Court registry. The Director purported to rely on s. 61 of the CFCSA,
which provides that where an application to extend continuing custody has been
brought but is adjourned, the children remain in the Directors care even
though the temporary custody order formally expires during the adjournment.
Section 61(2), however, is explicit that nothing in the section extends the
maximum period for which a child may remain in the Directors care pursuant to
a temporary custody order (12 months in this case). Rather than adhering to the
time limits prescribed by the CFCSA, the Director kept the children in
her care without having obtained any judicial determination that the maximum
time limit should be extended in the best interests of the children.
[531]
Thus, when B.G.s second custody application was heard in August 2011,
the maximum time period in which the children could be kept in foster care by
the Director had expired. The Director had not obtained an order pursuant to
s. 45(1.1) to extend the total time period. At the hearing of B.G.s
application, the Director continued to maintain her position that the temporary
custody order was automatically extended upon the filing of each application
until her extension application was heard and determined on the merits:
THE COURT: Well, just a minute. So if it was May 12th
[indiscernible], how is it that after 12 months the children continue to remain
in foster care?
MS. FEENIE: They
remain in care because they are the subject of an application currently before
this court to extend that temporary custody order for a further three months.
That application of course was filed many months ago and prior to the expiry of
that order, which, under this act, the filing of that application extends the
temporary custody order.
[532] As well,
the Director made an oral application without notice during that hearing to
extend the maximum time period per s. 45(1.1). In submissions, the
Director acknowledged an application to extend the maximum time limits under
s. 45(1.1) can only be granted if the court finds its in the best
interests of the children to do so. In making that submission, the Director
argued, as a factor favouring B.G.s custody application, that as the original
temporary custody order had been made some 16 months earlier on April 14, 2010,
it was in the childrens best interests to release them from foster care into
the care of their father. I did not determine the application at that time, which
was the first time it was raised.
[533] I ordered J.P.s
parallel application for a declaration that the Director had lost jurisdiction
over the children and the Directors oral s. 45(1.1) application for an
extension of the total time period in which the children may remain in her care,
to be adjourned to be determined at the First Trial. My order was made to avoid
disruption and emotional distress to the children in the face of the Directors
threat to immediately re-apprehend the children should I determine the Director
had lost jurisdiction. Consequently, my order did not authorize the Director to
retain temporary custody of the children beyond the maximum time limit pursuant
to ss. 45(1)(a) or 45(1.1).
[534] The
children continued to reside in foster care pending the outcome of the First
Trial.
[535] I am
satisfied that when the Director made the threat to re-apprehend, she had no
intention of moving towards the protection hearing. Rather, her focus was to
continue to secure an extension of the temporary custody order until B.G.s
application for permanent sole custody in the family law action could be
determined at the First Trial.
[536]
Ms. Lejko admitted that when the Director threatened reapprehension,
the Director was of the opinion that the children were at continued risk of emotional
harm if they were returned to J.P.s care because of her ongoing pursuit of the
sexual abuse allegations. The following excerpt of her evidence provides a
further illustration of the Directors ongoing view that the circumstances that
had led to the Apprehension were not likely to change:
A
We did have conversations of at this point
in time our – – our concerns around [J.P.] were such that if the jurisdiction
was lost and the children returned to [J.P.], that we felt that she was a risk
to her children and that re-removal was where we would go with the case at that
point in time.
Q And what exactly were the risks at that time?
A We believed that
[J.P.]s conviction that the children had been sexually abused – – and, again,
at this point I was of the opinion that while [B.G.] had certainly further work
to do, that he was the parent who would be capable of parenting the children.
And that [J.P.]s conviction that they had been sexually abused and her lack of
boundaries around being able to modify that belief would impact on her children
and cause emotional harm.
[537]
Essentially, Ms. Lejko thought that J.P. would, in her pursuit to
prove the sexual abuse, expose the children to harm that would be far greater
than the sexual abuse itself. Ms. Lejko explained her views in this way:
And that one
thing I know around children who have been sexually abused, is that if they are
repeatedly exposed to their parents belief that they have been damaged by that
event, that the children are far more damaged in many cases by that message
from their parent than the actual sexual abuse.
[Emphasis
added]
[538] Aside from
the merits of what I infer from her evidence to be the suggestion that
discussing sexual abuse with the victim may be worse than the abuse itself, the
difficulty with Ms. Lejkos rationale is that J.P. was not focused on proving
the extent of damage suffered by the children nor intent on discussing that
subject with them, but was, instead, intent on proving the sexual abuse itself.
[539] I am
therefore in agreement with the plaintiffs submissions that so long as J.P.
continued to maintain that the children had been sexually abused by B.G., the
Director would not permit the children to be returned to her care.
[540] The
Directors position during the First Trial was that she had custody of the
children pursuant to a lawful temporary custody order, so that what was to be
determined was the Directors application for an extension of the temporary
custody order. It was the Directors position that the First Trial was not a
protection hearing. The Directors extension application was ultimately not
determined at the First Trial because the Director withdrew her protection
concerns on March 29, 2012, before she presented her case.
[541]
I do not need to determine the loss of jurisdiction issue (advanced by
J.P. during the First Trial) at this time because I am satisfied from the
evidence adduced in the trial of this action that when the Director filed the
extension application, she did not hold the belief, as required by s. 44(1),
that protection concerns that led to the Apprehension were likely to improve
within a reasonable time. That view did not change during the First Trial,
according to the Directors own written submissions:
The Directors concerns in relation to [J.P.s] mental or
emotional health continue and, in the Directors opinion, have not been
sufficiently addressed to ensure the safety and well-being of the children if
returned to her care.
As of todays date, on the basis
of the Directors investigation and involvement with this family and on the
information currently known to the Director, the Director remains supportive of
[B.G.s] application for custody of the children under the Divorce Act or FRA.
[542] Accordingly,
on the face of the Directors own position in the First Trial, her application
to extend temporary custody fell afoul of the requirements of the CFCSA.
[543] As noted,
the Manual states that it is only in unique circumstances that the
total time limit will not be adhered to based on the childrens best interests.
There were no unique circumstances in the present case which would have allowed
the Director to ignore the maximum time limits. I have determined that social
workers were motivated by their ongoing and visceral dislike and mistrust of
J.P. that had its origins in the misconduct of Mr. Strickland in early
December 2009. There was no basis upon which the Director could reasonably rely
on the provisions in the CFCSA to obtain an extension of the total time
limits permitted for a temporary custody order. Rather, the purpose of the
extension application was to support B.G. to become the custodial parent.
[544] In the
result, the Director knowingly kept the children in foster care well past
expiry of the maximum time limit permitted by s. 45 of the CFCSA –
April 14, 2011 – without an extension order having been granted. I find that
the Director acted with an improper motive in seeking extensions of the
temporary custody order initially issued, that motive being to allow B.G. time
to bring a second application for custody so that the children could be given
over to his care.
[545] During
this period, the Director did not act to have her protection concerns
determined, but instead allowed her application for extension of temporary
custody to be adjourned to allow B.G. time to remedy the difficulties that
caused him to lose his first custody application and to prepare a second.
Finally, rather than proceed to a protection hearing as quickly as possible,
the Director continued to pursue her plan to return custody to B.G. and
provided all accommodations to B.G. while the children remained in foster care.
[546] I would
observe that another means by which the Director may keep children in care is
through a continuing custody order, which can be made on the basis there is no
significant likelihood that the circumstances that led to the apprehension will
improve within a reasonable time or that the parent entitled to custody will be
able to meet the childs needs. The Director never applied for a continuing
custody order in this case even though she had concluded at an early stage
following the Apprehension that the circumstances in which the children had
been apprehended would not change and that the children would not be returned
to J.P.
[547] The
plaintiffs argue that the Directors ardent support of B.G. as the parent who
should have custody of the children put her in breach of her fiduciary
obligations to the children. I agree with the plaintiffs but only to a limited
extent. I turn to address that next, briefly reviewing the relevant legal
principles first.
C. Breach of Fiduciary Duty
[548] It is well
established that the Crown owes a fiduciary duty to children in government
care. Charged with the care of a child, the Crown occupies the position of a
parent, and assumes the fiduciary duties of a parent. The duty has been
narrowly defined, not as a duty to act in the best interests of the child,
but as a duty to avoid acting disloyally in a manner that breaches the childs
trust. In order to find that the Crown has breached its fiduciary duty to a
child in care, the complainant must establish not only that the fiduciary
relationship existed and that harm came to the child, but that the Crown was at
fault. Specifically, the complainant must establish that the Crown acted
disloyally, i.e. in its own interests or those of a third party against the
interests of the child in care.
[549] In K.L.B.,
which is currently the leading case defining the scope of the Crowns fiduciary
duty to children in government care, McLachlin C.J.C. confirmed, at para. 38,
that the relationship between the government and foster children is fiduciary
in nature. She explained that while the "best interests" of the
child forms a guiding objective, a parent (or Crown guardian) does not have a
positive fiduciary duty to act in the best interests of the child. Such a duty
would seem to be a form of result-based liability, rather than liability based
on faulty actions and omissions and, in the opinion of the Court, would not
provide parents with a workable standard by which to regulate conduct (paras. 45
and 46).
[550]
In order to establish a breach of the Crowns fiduciary duty to a child
in its care, the plaintiff must show that the Crown has acted disloyally,
putting its own or another partys interests ahead of those of the child in a
manner that abuses the childs trust. McLachlin C.J.C articulated the
requirement for an element of disloyalty in K.L.B., beginning at para. 48:
48 What then is the content of the parental fiduciary
duty? This question returns us to the cases and the wrong at the heart of
breaches of this duty. The traditional focus of breach of fiduciary duty is
breach of trust, with the attendant emphasis on disloyalty and promotion of
one’s own or others’ interests at the expense of the beneficiary’s interests.
Parents stand in a relationship of trust and owe fiduciary duties to their
children. But the unique focus of the parental fiduciary duty, as
distinguished from other duties imposed on them by the law, is breach of trust.
Different legal and equitable duties may arise from the same relationship and
circumstances. Equity does not duplicate the common law causes of
action, but supplements them. Where the conduct evinces breach of trust,
it may extend liability, but only on that basis. As I wrote in Norberg v.
Wynrib, [1992] 2 S.C.R. 226: "In negligence and contract the parties
are taken to be independent and equal actors, concerned primarily with their
own self-interest… . The essence of a fiduciary relationship, by contrast, is
that one party exercises power on behalf of another and pledges himself or
herself to act in the best interests of the other" (p. 272). [Emphasis in
original]
49 I have said that
concern for the best interests of the child informs the parental fiduciary
relationship, as La Forest J. noted in M. (K.) v. M. (H.), supra, at
p. 65. But the duty imposed is to act loyally, and not to put one’s own
or others’ interests ahead of the child’s in a manner that abuses the child’s
trust. This explains the cases referred to above. The parent who exercises
undue influence over the child in economic matters for his own gain has put his
own interests ahead of the child’s, in a manner that abuses the child’s trust
in him. The same may be said of the parent who uses a child for his sexual
gratification or a parent who, wanting to avoid trouble for herself and her
household, turns a blind eye to the abuse of a child by her spouse. The parent
need not, as the Court of Appeal suggested in the case at bar, be consciously
motivated by a desire for profit or personal advantage; nor does it have to
be her own interests, rather than those of a third party, that she puts ahead
of the child’s. It is rather a question of disloyalty — of putting
someone’s interests ahead of the child’s in a manner that abuses the child’s
trust. Negligence, even aggravated negligence, will not ground parental
fiduciary liability unless it is associated with breach of trust in this sense.
[Emphasis
added]
[551]
Simply failing to prevent abuse or harm to a child will not necessarily
result in a breach of fiduciary duty. In E.D.G. v. Hammer, 2003 SCC 52,
McLachlin C.J.C. held that the defendant school board had not breached its
fiduciary duty to children simply by failing to prevent abuse by a school board
employee. A breach of fiduciary duty would have required fault; some action or
omission by the school board, related to the abuse, by which the school board
placed its own interests or those of another over the interests of the
students:
24
Fiduciary obligations are not obligations to
guarantee a certain outcome for the vulnerable party, regardless of fault.
They do not hold the fiduciary to a certain type of outcome, exposing the
fiduciary to liability whenever the vulnerable party is harmed by one of the
fiduciarys employees. Rather, they hold the fiduciary to a certain type
of conduct. As Ryan J.A. held in A. (C.) v. C.
(J.W.) (1998), 60 B.C.L.R. (3d) 92 (C.A.), at para. 154, A
fiduciary is not a guarantor. A fiduciary does not breach his or her
duties by simply failing to obtain the best result for the beneficiary.
[Emphasis
in original]
[552]
As McLachlin C.J.C. noted in K.L.B., a parent who exercises undue
influence over a child for economic gain, uses a child for sexual
gratification, or turns a blind eye to the abuse of a child to avoid trouble
for herself has shown disloyalty that amounts to a breach of fiduciary duty to
a child. Those examples are established by particular jurisprudence. However,
as Frank J. noted in S.R. v. J.R., 2014 ONSC 317, there is no reason to
restrict the scope of breach of fiduciary duty to such cases:
84 It is well established that a parent owes a
fiduciary duty to his or her child. The duty is characterized by a requirement
that the parent act loyally and not put his or her interests ahead of the child
in a manner that would abuse the child’s trust. (K.L.B. v. British Columbia,
2003 SCC 51, [2003] 2 SCR 403, para. 49.)
85 I am unaware of any
finding against a parent for breach of fiduciary duty in cases other than those
involving sexual assault of the child by the parent or economic gain by the
parent contrary to the interests of the child. However, there is no basis for
restricting the scope of a parent’s fiduciary duty to his or her child to such
cases. To do so would be inconsistent with the broad characterization of that
duty in K.L.B. and McLachlin C.J.C.’s statement at para. 47 that
the list of parental duties is not closed.
[553] Once a plaintiff
proves the existence of a fiduciary duty and prima facie case of breach,
the evidentiary burden shifts to the defendant to disprove the allegation: Toronto
Party for a Better City v. Toronto (City), 2013 ONCA 327 at para. 58; S.R.
at para. 86; and D.M. v. J.A.W. Estate, 2014 BCSC 1061. In Toronto,
the Ontario Court of Appeal held that establishing prima facie
inferences of a breach of fiduciary duty was sufficient to shift the burden
to the defence. This shift in the evidentiary burden is premised on the
vulnerability of a beneficiary and the ability of a fiduciary to conceal a
breach by virtue of the fiduciarys control over the beneficiary: S.R. at
para. 86; see also Leonard Rotman, Fiduciary Law (Toronto: Thomson
Carswell, 2005), at 614. In this case, the plaintiffs proved more than
inferences; they proved, through direct evidence, the breach of fiduciary duty.
[554] The
plaintiffs claim that in her improper and unreasonable support of B.G., a
person she conceded may have sexually abused the children, the Director acted
in breach of her fiduciary duty to the children.
[555] There is
no question that the Director owed the children a fiduciary duty. The Province
does not dispute that the Director owed a duty to the children.
[556] I do not
agree with the Provinces submission, advanced in closing argument, that the
pleadings are fatally defective in terms of the breach of fiduciary duty claim.
The pleadings make adequate disclosure and provide sufficient particularity of
the claim. To my mind, the principal issue is whether the Director acted in a
manner that put her own or another persons interests ahead of the childrens
in a manner that abused their trust. I have concluded that she did as of December
14, 2011. On that date, the Director acknowledged that it was possible that
B.G. sexually abused the children, yet she continued to prefer his interests
over those of the children by continuing to support his claim for sole custody.
This is not a case where the plaintiffs have established their claim by proving
a prima facie case that the Province failed to rebut. The Directors
position expressed in the December 14 Statement was a purposeful and considered
response to a direction from the Court to provide her position in the First
Trial. It was not the product of inadvertence or simple neglect.
[557] In
advocating for a permanent custody order in favour of B.G. whom the Director
acknowledged may have sexually abused his children, the Director demonstrated
her closed mind to the evidence before her. As I explain in other sections of
these reasons, I found that a pervasive antipathy existed (and continues to
exist) amongst many social workers towards J.P. Caught up in their hostility
towards J.P., the social workers and the Director overlooked the interests of
the children and preferred the custodial interests of the parent they conceded
could be the abuser.
X. MISFEASANCE
CLAIM
[558] I move
next to consider the plaintiffs claims of misfeasance against Mr. Strickland.
I begin by reviewing the governing legal principles.
A. Legal Principles
[559] Misfeasance
in public office is a public law tort, firmly rooted in case authority from
England. It has been variously referred to as abuse of public authority, abuse
of statutory authority, abuse of public office, and misfeasance in public
office: Uni-Jet Industrial Pipe Ltd. v. Canada (Attorney General), 2001
MBCA 40 at para. 18. Misfeasance may only be committed by public officials
in the performance of their public duties.
[560] Historically,
the tort was limited to situations where a public official deliberately abused
his authority to harm a particular plaintiff, as was the case in Roncarelli
v. Duplessis, [1959] S.C.R. 121. There, the Premier of Quebec, Mr. Duplessis,
was found liable for ordering the Quebec Liquor Commission to cancel Mr. Roncarellis
liquor licence in retaliation for his financial support of Jehovahs Witnesses.
The Court found that Premier Duplessis had, within his position of public
office, acted for a malicious purpose and in excess of his statutory authority.
[561] Since Roncarelli,
the requirements for the tort have weakened, and liability for misfeasance can
now also be established in circumstances of subjective recklessness or wilful
blindness as to harm.
[562] Odhavji
Estate v. Woodhouse, 2003 SCC 69, is the current leading case on
misfeasance in Canada. There, the Court considered a claim in misfeasance
brought against members of the Metropolitan Toronto Police by the estate and
family of Mr. Odhavji, who had been fatally shot by police officers. The
plaintiffs alleged that by intentionally failing to cooperate fully with the
investigation into the shooting, the defendants were liable in misfeasance. The
defendants sought to have the claims struck. The Supreme Court allowed the
misfeasance claims to proceed, and in the process of so doing, explored the
defining elements of the tort.
[563] The Court
explained that the underlying purpose of misfeasance in public office is to
protect each citizens reasonable expectation that a public officer will not
intentionally injure a member of the public through deliberate and unlawful
conduct in the exercise of public functions (at para. 30). The tort can
be grounded in a broad range of misconduct (at para. 20), and the
essential question to be determined is whether the alleged misconduct is
deliberate and unlawful (at para. 24).
[564]
Most of the Courts discussion focused on two core elements of the tort,
which it identified as follows, at para. 23:
First, the public officer must
have engaged in deliberate and unlawful conduct in his or her capacity as a
public officer. Second, the public officer must have been aware both that his
or her conduct was unlawful and that it was likely to harm the plaintiff.
The Court added, at para. 32, that alongside
deliberate unlawful conduct and the requisite knowledge, the plaintiff must
also prove that the tortious conduct was the legal cause of his or her
injuries, and that the injuries are compensable in tort law.
[565] Unlawful
conduct is established where the acts or omissions either fall wholly outside
the public officers statutory authority or if they are within it, then the
acts or failure to act are carried out with an improper purpose: D.E.
(Guardian ad litem) v. British Columbia, 2005 BCCA 289 at paras. 7-8; Rosenhek
v. Windsor Regional Hospital, 2010 ONCA 13 at paras. 7, 29, 32; Roncarelli
at 140.
[566]
The Court in Odhavji Estate explained that misfeasance can arise
in one of two ways. The first, referred to as Category A misfeasance, arises
when the public officers conduct is specifically intended to injure a person
or class of persons. Category B misfeasance arises where the public officer
acts with knowledge both that she or he has no power to do the act complained
of and that the act is likely to injure the plaintiff: para. 22. Although
both categories contain the same core elements, whether the tort arises by way
of Category A or B dictates the manner in which the first and second elements
are proven:
23
In Category B, the
plaintiff must prove the two ingredients of the tort independently of one
another. In Category A, the fact that the public officer has acted for the
express purpose of harming the plaintiff is sufficient to satisfy each
ingredient of the tort, owing to the fact that a public officer does not have
the authority to exercise his or her powers for an improper purpose, such as
deliberately harming a member of the public. In each instance, the tort
involves deliberate disregard of official duty coupled with knowledge that the
misconduct is likely to injure the plaintiff.
[567]
Roncarelli is an example of Category A misfeasance, as
Premier Duplessis was found to have specifically targeted Mr. Roncarelli
with the intent of causing him economic harm. Rand J. found at 143 that this
constituted malice, as opposed to good faith, which he described to mean
carrying out the statute according to its intent and for its purpose.
[568]
Category B misfeasance was proven in Ontario Racing Commission
v. ODwyer, 2008 ONCA 446. There, Ontario Racing Commission officials were
found to have acted deliberately and, at a minimum, were subjectively reckless
or wilfully blind as to the legality of their actions and to the harm which
resulted from their misconduct by not approving Mr. ODwyer as a race
track starter and for failing to grant him a hearing to review its decision.
Other examples of successful actions grounded in Category B misfeasance include:
Uni-Jet (police officer releasing information to the media about an
investigation to enhance his relationship with the press despite knowing the
plaintiffs would suffer harmful repercussions and embarrassment); Rosenhek (revocation
of hospital privileges due to interpersonal differences with knowledge of
likely injury to plaintiff); and, Riemer (by-law enforcement officers
wrongfully removing items from defendants property indifferent to any harm
they might cause the defendant).
[569]
The Court in Odhavji Estate explained that the focus of
the inquiry when considering the first element of the tort is whether the
alleged misconduct by the public officer is both deliberate and unlawful. Such
misconduct may arise from a straightforward breach of the relevant statutory provisions
or from acting in excess of the powers granted or for an improper purpose (at para. 24).
So long, of course, that such conduct was deliberate. Where there is a specific
intention to injure the plaintiff, this finding will also satisfy the second element
of the tort for purposes of Category A misfeasance.
[570]
As the Court in Odhavji Estate discussed, misfeasance is
not directed at a public officer who inadvertently or negligently fails to
adequately discharge the obligations of his or her office. Nor is it directed
at a public officer who is unable to discharge his or her obligations because
of factors beyond his or her control. Rather, as stated at para. 26, the
tort is directed at a public officer who could have discharged his or
her public obligations, yet wilfully chose to do otherwise: (emphasis in
original).
[571]
This particular element was satisfied by the alleged facts in Odhavji
Estate. The Court stated that the defendant police officers had a statutory
obligation (under the Police Services Act, R.S.O. 1990, c. P. 15)
to cooperate fully in the conduct of investigations. Thus, on its face, the
decision not to cooperate with an investigation constituted an unlawful breach
of statutory duty.
[572]
The second element of the tort of misfeasance concerns the state
of mind necessary to establish liability, which is knowledge both that the
conduct is unlawful and that it is likely to harm the plaintiff. Neither
standing alone is sufficient, as the Court made clear at paras. 28-29:
28
The requirement that
the defendant must have been aware that his or her conduct was unlawful
reflects the well-established principle that misfeasance in a public office
requires an element of "bad faith" or "dishonesty". In a
democracy, public officers must retain the authority to make decisions that,
where appropriate, are adverse to the interests of certain citizens. Knowledge
of harm is thus an insufficient basis on which to conclude that the defendant
has acted in bad faith or dishonestly. A public officer may in good faith make
a decision that she or he knows to be adverse to interests of certain members
of the public. In order for the conduct to fall within the scope of the tort,
the officer must deliberately engage in conduct that he or she knows to be
inconsistent with the obligations of the office.
29 The requirement that
the defendant must have been aware that his or her unlawful conduct would harm
the plaintiff further restricts the ambit of the tort. Liability does not
attach to each officer who blatantly disregards his or her official duty, but
only to a public officer who, in addition, demonstrates a conscious disregard
for the interests of those who will be affected by the misconduct in question.
This requirement establishes the required nexus between the parties. Unlawful
conduct in the exercise of public functions is a public wrong, but absent some
awareness of harm there is no basis on which to conclude that the defendant has
breached an obligation that she or he owes to the plaintiff, as an
individual. And absent the breach of an obligation that the defendant owes
to the plaintiff, there can be no liability in tort.
[Emphasis
in original]
[573] While
misfeasance judgments often speak of bad faith, malice or dishonesty as a
requirement, it is apparent from the foregoing passage that the Court
considered the requirement of awareness of both the unlawfulness of the conduct
and the harm to the plaintiff as the means by which bad faith or dishonesty is
proven.
[574]
In the case of Category B, misfeasance is not limited to actual knowledge,
and liability can be founded on subjective recklessness or wilful blindness. At
para. 38, the Court explained:
38
misfeasance in a
public office is an intentional tort that requires subjective awareness that
harm to the plaintiff is a likely consequence of the alleged misconduct. At the
very least, according to a number of cases, the defendant must have been
subjectively reckless or willfully blind as to the possibility that harm was a
likely consequence of the alleged misconduct.
[575] That
objective recklessness is insufficient to satisfy the second element is
apparent from the Courts reasons, as it struck from the statement of claim
that the defendant officers ought to have known that their alleged misconduct
would cause the plaintiffs to suffer harm. The Court allowed the claim to stand
insofar as it alleged the officers knew their conduct would cause harm to the
plaintiffs.
[576] Subjective
recklessness towards the likelihood of a specific injury to a plaintiff is not
necessary. The second element will be made out where there is proof that the
alleged tortfeasor foresaw the risk of harm of the type sustained: Alberta
(Minister of Infrastructure) v. Nilsson, 2002 ABCA 283 at paras. 95,
141.
[577] In
summary, the elements of misfeasance are the following:
(a)
a public officer;
(b)
engaging in deliberate and unlawful conduct in his or her capacity as a
public officer;
(c)
with awareness both that the conduct is unlawful and that it is likely
to harm the plaintiff, which may be based on actual knowledge, subjective
recklessness or wilful blindness;
(d)
causation; and
(e)
compensable damages.
For Category A misfeasance, the public officer will be
found to have acted with the specific intention of harming the plaintiff. For
Category B, subjective recklessness towards the lawfulness of the conduct and
the risk of harm to the plaintiff must be established.
[578] In Powder
Mountain Resorts Ltd. v. British Columbia, 2001 BCCA 619, the Court urged
judicial caution in several respects when considering claims of misfeasance.
First, given the nature of misfeasance as an intentional tort requiring proof
of bad faith and therefore carrying with it the stench of dishonesty, clear
proof commensurate with the seriousness of the wrong should be provided (at para. 8).
Second, misfeasance is an exception to the normal disinterest of the civil law
in the motive underlying the conduct, as opposed to the conduct itself, and
[m]otive is of course notoriously difficult to discern, and one may act for
more than one motive (at para. 8). Finally, where vicarious liability for
misfeasance is alleged, it is important to consider the actions and motivations
of individual actors separately and to keep in mind, as well, the practical
context in which the decision-makers were operating.
B. Claims Against Mr. Strickland
[579] Before I address
the misfeasance claims against Mr. Strickland, it is appropriate at this
stage to summarize my overall findings in respect of Mr. Stricklands
credibility and the veracity of his evidence. Mr. Strickland was
challenged in respect of many of his actions and much of his testimony.
[580] Overall, I
found that Mr. Stricklands evidence had an aura of being contrived,
especially as he professed to have little or no memory about certain events
adverse to his interests and then when shown a document, had a sudden recall
with an ability to provide details. I found some key parts of his evidence in
chief to have been led and at times internally inconsistent with other evidence
he gave and with objective evidence. I also found that Mr. Strickland was
not forthright and honest in his evidence about key events, such as his call to
Sergeant Pollard, his dealings with J.P. and other social workers that led up
to and immediately followed the Apprehension, a purported s. 17
application, and his approach to the Form A. There were numerous instances in
which I found him to be deliberately evasive.
[581] In her
evidence in chief led by the Province, I heard Ms. Lejko describe Mr. Strickland
as an imposing man dedicated to his work and work standards who had trouble
working with others in the past. In this case, Mr. Strickland did not
bring an approach dedicated towards compliance with Ministry standards and
standard of care in his dealings with J.P. and B.G. and their children. He made
a mistake early in his dealings with the case by signing the letter to B.G. and
then, after challenged about it by J.P., engaged in intentional misconduct.
[582] I turn now
to the misfeasance claims. Although the plaintiffs allege numerous separate
claims of misfeasance against Mr. Strickland, it is preferable, in my
view, to consider them collectively since they form a pattern of conduct.
[583] I have
made the following findings with respect to Mr. Strickland:
(a)
He formed a closed-minded attitude towards J.P. at a very early stage in
his involvement with the family, even before he met with her in person on
December 4. His views came to include that J.P. suffered from mental health
problems and that she had coached her children to fabricate sexual abuse
allegations against their father. There was no reasonable basis for these
views.
(b)
As a result, he approached the Directors obligation to carry out an assessment
and investigation into the possible sexual abuse of P.G. and thereafter about
the older children (after he received the report of their disclosures in
mid-December) with a closed mind.
(c)
Mr. Strickland led J.P. to believe that the letter to B.G. dated
November 23, 2009 was prepared and sent in error, would be retracted, and
that an investigation into her report of sexual abuse of P.G. would be carried
out. No proper assessment of the report of sexual abuse of P.G., or reports
concerning any of the children for that matter, was carried out. Nor was any
investigation. Instead, Mr. Strickland authorized an investigation into
J.P.s mental health to determine if she posed any protection concerns to the
children. He also continued to support B.G.s access to the children in the
family law action despite reports of sexual abuse.
(d)
Acting intentionally, unreasonably, and inconsistently with the
assurances he had made to J.P. on December 4, Mr. Strickland conveyed
information to Sergeant Pollard on December 7 to paint an inaccurate and unsavoury
picture of J.P.s mental health, her motives, and the veracity of the
information she reported about possible sexual abuse of one of her children. In
doing so, Mr. Strickland communicated information that he either knew was
inaccurate or unsupported (or both) or was wilfully blind to its truth and
accuracy. He made his comments to Sergeant Pollard acting out of ill will
towards J.P. and with a closed mind.
(e)
On December 20, he misled Ms. Robinson and Ms. Caffrey to
believe that Detective Rowley was of the opinion that J.P. might kill herself
or the children. This misinformation tipped the balance and led Ms. Robinson
to authorize the Apprehension.
(f)
Once the decision to apprehend was made, Mr. Strickland acted to
create the impression that he had considered a s. 17 application for J.P.
to produce the children as a less disruptive alternative to apprehension.
(g)
Mr. Strickland reviewed and approved the Form A report before it
was delivered to Provincial Court knowing that it contained material errors
which left a manifestly inaccurate impression of the circumstances in which the
Director apprehended the children. At no time did he take any steps to correct the
errors.
[584] It is not
disputed that Mr. Strickland was acting as a public officer at the
material time. The key issues, therefore, are whether he engaged in deliberate
and unlawful conduct in his capacity as a public officer, and whether he was
aware both that his conduct was unlawful and that it was likely to harm J.P. or
the children.
[585] There is
no direct evidence that Mr. Strickland specifically intended to injure either
J.P. or the children through his conduct. I have declined to make any findings
concerning Mr. Stricklands motive because he was not cross-examined about
it. Accordingly, misfeasance under Category A is not established.
[586] I have
determined, however, that the plaintiffs have established liability under
Category B.
[587] In my
view, deliberate and unlawful conduct by a public officer is established by Mr. Stricklands
overall conduct with respect to this case over the one month period between
early December 2009 and early January 2010 as well as his ongoing involvement
with the Form A including his failure to remedy the defects in it. As a
delegate of the Director charged with administering the CFCSA, Mr. Strickland
had a statutory obligation to act in a manner that put the safety and
well-being of the children foremost in his consideration at all times. However,
his closed mind and antipathy toward their mother led him to approach the file
other than in their best interests as required.
[588] Having
formed the mindset that J.P. had mental health issues and had coached the
children to fabricate sexual abuse allegations against their father, Mr. Strickland
did not approach the reports of sexual abuse with the best interests of the
children in mind. Mr. Stricklands bias with respect to J.P. infected his
conduct on the Ministrys file. He did not, for instance, impartially assess relevant
information about the reports of sexual abuse, such as the videos and audios of
the children making their disclosures of sexual abuse, the report from Dr. Edamura,
and the advice from L.P.
[589] Mr. Stricklands
troubling communication to Sergeant Pollard was another manifestation of his
closed mind. He intentionally reported information to Sergeant Pollard, some of
which he knew to be untrue and others to which he was reckless as to its truth.
He acted purposefully in making his remarks to Sergeant Pollard.
[590] Further, having
agreed to retract the original letter to B.G. clearing him of physical abuse
allegations, Mr. Strickland acted purposefully and contrary to the promise
he had made to J.P. on December 4, when advising Sergeant Pollard on December 7
that the Ministry had cleared B.G. In the wake of his advice to J.P. on
December 4 that the letter to B.G. to the same effect would be withdrawn, and
after having heard and considered Mr. Stricklands evidence concerning his
communication with Sergeant Pollard, I have determined that there is no other
conclusion to draw other than he intended to portray B.G. in a positive light
and to malign J.P. to the VPD and that he acted with ill will towards J.P.
[591] Further, there
were no new facts and no reasonable basis for Mr. Strickland to cause the
letter dated December 16, 2009, supporting B.G.s application to vary Master
Taylors order in the midst of pending Crowns counsels consideration of criminal
charges, the restraining orders, and pending the outcome of the VPDs
investigation into the sexual abuse allegations, to be sent. His conduct in
sending the letter that he knew was to be used by B.G. the next day in court in
the family law action supports the plaintiffs claim that Mr. Strickland unreasonably
and deliberately continued to favour B.G. throughout, knowingly to the
detriment of J.P.
[592] His conduct
caused Ms. Robinson and Ms. Caffrey to believe that Detective Rowley
had advised him that J.P. was at risk of killing herself or the children or
both. At the time he communicated that information, Mr. Strickland had no
reasonable basis for that belief or to say it. Permitting the inaccurate and
misleading Form A report to be filed with the court is yet a further reflection
of his bias.
[593] While some
of these specific incidents are unlawful in their own right as conduct falling
below the governing standard of care of a reasonable social worker and careful
parent, they are also the product of a more fundamental failure on the part of Mr. Strickland.
In approaching his overall involvement in the file with a closed mind toward
J.P. and reports of sexual abuse, Mr. Strickland wilfully chose not to discharge
his statutory obligations and in doing so, chose not to act and make decisions
at all times in the best interests of the children. He acted outside his
statutory authority in providing information to Sergeant Pollard, some of which
he knew was untrue and others to which he was reckless as to its truth. I am
satisfied that his conduct in all respects was deliberate.
[594] Insofar as
the second element of the tort is concerned — awareness on the part of Mr. Strickland
both that his conduct was unlawful and that it was likely to harm the
plaintiffs — I find that it has also been made out. As described earlier, the
mental element of the tort may be based on actual knowledge, subjective
recklessness, or wilful blindness. I am satisfied that Mr. Strickland was,
at a minimum, subjectively reckless to both the unlawfulness of his conduct and
that it was likely to harm the children and J.P.
[595] The likely
harm flowing from his unfounded view that J.P. had mental health issues and had
coached the children to fabricate the sexual abuse allegations against B.G. was
that legitimate reports of abuse would not be properly investigated with dire
consequences for the children. It would also tarnish the credibility of J.P. in
the eyes of the VPD and other social workers who were or who became involved in
the case. Moreover, any unlawful conduct in relation to the apprehension of the
children was likely to cause tremendous upheaval and emotional upset associated
with their removal from their mother.
XI THE DECISION TO PROVIDE B.G. WITH
UNSUPERVISED ACCESS TO THE CHILDREN
A. Overview of the Issue
[596] The
plaintiffs claim that the Director and her agents recklessly breached the
Supervised Access Order while the children were in her care, which in turn led
to horrific results, including the sexual abuse of the youngest child, P.G.,
by her father.
[597] It is the
position of the Director and the Province that orders made pursuant to the CFCSA
supersede pre-existing orders pertaining to children made under other
legislation such as the Divorce Act or the FRA. The position
taken by the Director and the Province is that pre-existing orders of this
Court, including orders made under the Divorce Act, are put into cold
storage once the Directors jurisdiction under the CFSCA is engaged.
[598] Accordingly,
the Province and the Director submit that the Director was properly authorized
by orders of the Provincial Court issued under the CFCSA (in
particular, the order of Judge Davis on April 14, 2010) to permit unsupervised
access to B.G. notwithstanding this Courts earlier Supervised Access Order.
[599] Also,
during the First Trial and in interlocutory proceedings in the Apprehension
Proceeding, the Director argued that the CFCSA is a complete code that
provides a complete mechanism to deal with child protection issues and that
effectively ousts the jurisdiction of orders issued by the Supreme Court of
British Columbia.
[600] The issues
surrounding the Directors obligations in relation to the Supervised Access
Order were the subject of in depth submissions on behalf of the Director and
J.P. during argument in the First Trial. The Director and the Province
requested that I delay issuing my reasons on the point in order that the
Province could provide its own submissions during closing arguments in this
proceeding. Although the Director is not a party to this action, J.P. agreed to
that request. The Province and the Directors submissions in respect of the
issues falling under this claim are to be treated as one. Accordingly, these
reasons are issued in this action and in the Apprehension Proceeding that was
part of the First Trial.
[601] The
plaintiffs disagree with the positions taken by the Director and the Province.
While recognizing that the authorities indicate that the CFCSA takes
precedence where a direct and necessary conflict exists between a CFCSA
order and an order issued pursuant to another provincial statute, they say that
was not the situation here. To the contrary, they say, the Supervised Access
Order was issued pursuant to the Divorce Act with the result that a
judge of the Provincial Court cannot issue an order under the CFCSA that
allows it to be circumvented. Moreover, the plaintiffs submit that even if the
Supervised Access Order was issued under the FRA, a provincial statue,
there was no conflict since both the Supervised Access Order and the CFCSA
order could easily co-exist. What gave rise to the conflict, they say, was the
decision of the Director to exercise her discretion in a manner that breached
the Supervised Access Order.
B. Factual Background
[602] In October
2009, J.P. commenced the family law action against B.G. claiming, inter alia,
sole guardianship and custody of the children. According to her pleadings,
those claims were advanced pursuant to the Divorce Act and the FRA.
At the same time, she obtained an ex parte restraining order from Master
Taylor which prohibited B.G. from any direct or indirect contact with J.P. and
the children pursuant to s. 37(a) of the FRA.
[603] B.G.
subsequently applied to vary Master Taylors order to allow him unrestricted
access to his children and for orders for joint guardianship and custody.
B.G.s application was brought pursuant to s. 16 of the Divorce Act
and s. 37 and Part 2 of the FRA. Section 16 of the Divorce Act
and Part 2 of the FRA concern custody and access; s. 37 of the FRA
concerns restraining orders.
[604] B.G.s
application came on for hearing before me on December 17, 2009. At that time, I
varied Master Taylors order on an interim basis, pending further submissions,
to permit B.G. to have limited supervised access to his children. B.G.s
application was adjourned to December 21, 2009. Supervision was to be provided
by a family member. There was insufficient time in view of the looming holiday
period to arrange for professionally supervised access, which is what J.P. wanted
if access was to be allowed to B.G.
[605] J.P.
served her own application on B.G. to be heard on December 21, 2009 as
well. She sought permanent, sole custody and guardianship of the children as
well as a permanent restraining order against B.G. Her application was stated
to be based on the entire Divorce Act and FRA. She alleged that
B.G. had sexually and physically abused the children.
[606]
I heard both applications on December 21, 2009. At the conclusion of the
hearing, I issued the Supervised Access Order which allowed B.G. limited
supervised access to the children:
THIS COURT ORDERS that:
1. The Defendant, [B.G.], shall
forthwith have interim supervised access with the Children on Saturdays from
10:00 a.m. to 6:00 p.m. and Wednesday evenings from 5 p.m. to 8 p.m., without
prejudice to either parties rights to advance their respective claims (the
Access Visits); and, such Access Visits shall be supervised by the
Plaintiffs brother, [G.P.].
[607] My order
was made in the context of a substantial body of evidence tendered by J.P. to
prove that B.G. had sexually abused and physically assaulted his children.
Although I could not determine the merits of the allegations on those interlocutory
applications given the conflicting nature of the evidence, my order was made to
ensure that the children would be protected from possible future harm by B.G.
until the merits could be determined. While the form of order entered with the
registry does not state whether the order was made pursuant to the Divorce
Act or the FRA, case law stipulates that it was issued under the
former. The Province acknowledged in oral argument that the Supervised Access
Order was made pursuant to the Divorce Act.
[608] No order
was made against the Director at that time because she was not a party to the
family law action. The Director was aware of the court hearing and participated
in it to the extent that she provided Mr. Stricklands letter dated
December 16, 2009 supporting B.G.s access and provided her position to B.G.s
counsel to communicate to the Court. Ministry employees also attended hearings
in this Court in the family law action in December 2009. The Director and
Ministry employees were well aware of the context in which the Supervised
Access Order was made.
C. Determination of the Legal Issue
[609] I wish to
start this section by stating that nothing in my remarks should be taken to
derogate from the broad powers designated to the Director and her agents under
the CFCSA to protect children.
1. Is
the CFCSA a Closed Code that Ousts the Jurisdiction of the Supreme Court of
British Columbia?
[610] I turn
first to consider the submission of the Director and the Province that the CFCSA
is a complete code that provides an exclusive mechanism to deal with child
protection issues in the Provincial Court, and the Directors submission that
the CFCSA ousts the jurisdiction of the Supreme Court of British
Columbia.
[611] To oust
the inherent or statutory jurisdiction of Canadian superior courts in favour of
statutory courts such as the Provincial Court, Parliament or the legislature
must make its intention to do so plain with clear and explicit statutory
wording: Ordon Estate v. Grail, [1998] 3 S.C.R. 437 at para. 46. No
such wording appears in the CFCSA.
[612] Furthermore,
the position of the Director is also inconsistent with decisions of courts in
this and in other provinces.
[613]
In British Columbia (Superintendent of Family & Child
Service) v. D.S. (1985), 63 B.C.L.R. 104 (C.A.), Esson J.A. considered the
argument that provincial child protection legislation was a complete and closed
code when considering a predecessor to the CFCSA. He said, at 21, that
the Family and Child Service Act, S.B.C. 1980, c. 11 was a statute
like any other and should be interpreted with reference to other applicable
laws of the Province:
21 It
is sometimes said that the Family and Child Service Act is to be treated as a
code unto itself. That phrase may be useful to emphasize the point that the
act embodies a comprehensive legislative scheme and that, to the end that the
scheme will be carried out, effect should be given to the plain meaning of the
language of the act. But it is a statute like any other. In a proceeding under
it, due regard must be had to other applicable laws of the province and, should
there appear to be overlapping or conflict, that must be resolved by ordinary
rules of interpretation such as those which provide for priority as between
general and particular provisions….
[614]
A similar view was taken by Culliton C.J.S. in respect of the Child
Welfare Act, R.S.S. 1953, c. 239 in Re Minister of Social Welfare
and Rehabilitation and Dube (1963), 39 D.L.R. (2d) 302 at 307 (Sask. C.A.),
a decision cited with approval by McIntyre J. (as he then was) in E.I.H. v.
British Columbia (Superintendent of Child Welfare) (1971), 5 R.F.L. 219 (B.C.S.C.).
Chief Justice Culliton stated that nothing in the statute restricted or denied
recourse to the superior court in custody matters:
Clearly
the provisions of the Child Welfare Act do not, by express language,
restrict the jurisdiction of the Court of Queens Bench in questions of
custody. Nor, in my opinion, do they do so by necessary inference. While the Child
Welfare Act provides for the summary and expeditious disposition of matters
respecting neglected and delinquent children, there is nothing in the Act to
either restrict or deny recourse to the Court of Queens Bench in custody
matters, or to restrict or oust the jurisdiction of the Court in such matters.
[615] I read the
provisions of the CFCSA in the same way.
[616] Cases
decided by the Provincial Court have determined that it is neither correct nor
desirable to refer to the CFCSA as a closed code unto itself that is
impervious to all other legislation: see, e.g., Christie and the Superintendent
of Family & Child Service, (23 February 1993), Vancouver 4063 and 3723
(B.C. Prov. Ct.).
[617] It is also
appropriate for the Supreme Court to hear apprehension cases where bad faith is
alleged. There have been a number of cases decided in this province where a
Supreme Court judge has sat on the hearing of apprehension proceedings as a judge
of the Provincial Court pursuant to s. 7 of the Provincial Court Act,
R.S.B.C. 1996, c. 379. There is nothing that bars a superior court judge
from hearing an apprehension proceeding: E.I.H. at para. 6; Re Infant Fix, [1969] B.C.J. No. 286
(S.C.).
[618]
As well,
s. 99 of the CFCSA specifically provides that nothing in
that statute limits this Courts parens patriae jurisdiction:
99 Nothing in this
Act limits the parens patriae jurisdiction of the Supreme Court.
[619] In S.O.
v. Alberta (Child and Family Services Authority), 2012 BCSC 413, Willcock
J. (as he then was) observed at paras. 97-98 that the notion of child
protection legislation as a closed code did not preclude the Supreme Court from
exercising its parens patriae jurisdiction.
[620] There are
circumstances where a judge of the Supreme Court must, to secure the best
interests of children, invoke his or her inherent or parens patriae
jurisdiction, e.g., to fill gaps in legislation, to supplement the Directors
powers, or in cases where bad faith is alleged: Perteet v. British Columbia
(Superintendent of Family and Child Services) (1988), 23 B.C.L.R. (2d) 329,
48 D.L.R. (4th) 469 (C.A.); C.K. v. The Director, Ministry of Children and
Family Development and British Columbia (Attorney-General), 2003 BCSC 785 at paras. 34
– 35 and 49; L.S. v. British Columbia (Ministry of Children and Family Development),
2003 BCSC 428 at paras. 24 – 26, revd on other grounds 2004 BCCA 244; E.B.
v. Basi, 2010 BCSC 1636; and D.J. v. British Columbia (Superintendent of
Family and Child Services), 46 R.F.L. (3d) 277 (B.C.S.C.); R.L. v.
Childrens Aid Society of the Niagara Region (2002), 34 R.F.L. (5th) 44 (Ont.
C.A.); Nova Scotia (Minister of Community Services) v. A.B., 2011 NSSC
114 at paras. 11-13; A.B. v. Bragg Communications Inc., 2011 NSCA
26; S.Q. v. Yukon (Director of Family and Childrens Services), 2004
YKSC 61 at para. 32.
[621] Accordingly,
I conclude that there is no merit to the submission that the CFCSA is a
complete code that ousts the jurisdiction of the Supreme Court of British Columbia
in terms of child protection matters.
2. Do
Orders Made Pursuant to the CFSCA Supersede Prior Orders of the Supreme Court
of British Columbia?
[622] I now turn
to consider whether orders made pursuant to the CFCSA can supersede
prior custody and access orders made by the Supreme Court of British Columbia.
[623] The
Supervised Access Order was made under the authority of the Divorce Act.
Although the order was not explicit in this regard, Supreme Court orders for
custody which are silent as to the statute under which they were made are
deemed to have been made under the Divorce Act due to Parliaments
paramountcy. The same logic applies to orders for access because access is a
necessary corollary to custody: Spiers v. Spiers (1995), 15 B.C.L.R.
(3d) 148 at paras. 13-22 (S.C.); Gomes v. Gomes (1985), 47 R.F.L.
(2d) 83 at 95 (B.C.S.C.); De Fehr v. De Fehr, 2002 BCCA 577 at paras. 14-16;
L.J.B. v. R.W.B., 2002 BCSC 1552 at para. 10; and G.L.H. v.
J.A.H., 2003 BCSC 372 at para. 20.
[624] There are
a number of cases holding that the operation of pre-existing Provincial Court
orders made under the FRA may be suspended by an appropriate order of a
judge of the Provincial Court in apprehension proceedings brought under the CFCSA
to avoid conflict: Christie; D.S.; and W.N. v. C.G., 2012
BCCA 149. At the same time, however, it
falls within the discretion of a judge, including a judge of the Supreme Court,
to decide whether to hear a custody application brought pursuant to the FRA
prior to an apprehension hearing pending in Provincial Court: R.M. v. B.A.C.
(1984), 15 D.L.R. (4th) 481 at 485-486, 59 B.C.L.R. 317 (C.A.); and Bird v.
Appleby, (17 January 1994), Vancouver A934456 (B.C.S.C.).
[625] What about
the CFCSA and prior Supreme Court orders made under the Divorce Act?
The Province and the Director rely on E.I.H. in arguing that CFCSA
orders do supersede prior corollary relief orders regarding children made under
the Divorce Act.
[626] In E.I.H.,
the Supreme Court ordered interim custody of the child of the marriage to the
mother pursuant to the Divorce Act. The Director then apprehended the
child nearly 18 months later while the divorce proceedings were pending. The
mother contested the temporary custody order subsequently granted by a
Provincial Court judge in the apprehension proceeding, arguing that the custody
order made under the Divorce Act ousted the jurisdiction of the
Provincial Court.
[627] Justice
McIntyre rejected the mothers argument. He reasoned that the prior Supreme
Court order did not oust the Provincial Courts jurisdiction under the then
applicable child welfare legislation. The Supreme Court order was an interim
order pending trial, and concerned, in addition to the welfare of the child,
the rights of the parents. In contrast, the issue before the Provincial Court
was solely the protection of the child, and involved circumstances which had
arisen since the Supreme Court order was made. Accordingly, no res judicata
arose.
[628]
In contrasting the Provincial Court order issued under child protection
legislation and the prior Supreme Court order made in the context of a family
dispute, McIntyre J. was careful to point to the narrow and special purpose
of child protection orders, at para. 7:
7 The
clear intent of The Protection of Children Act is to protect children and in so
doing to remove children in certain circumstances from those who have their
lawful custody .The words of section 7 of The Protection of Children Act are
broad enough to include the power to apprehend a child in the lawful custody of
its natural parents or its adopted parents or parents who hold custody under
and by virtue of some other order of the high court. This jurisdiction can
exist together with the jurisdiction of the Supreme Court under the Divorce
Act, and without any necessary conflict. … The learned Provincial judge had
jurisdiction to make the order for the narrow and special purpose mentioned in
The Protection of Children Act and that jurisdiction was not ousted by the
prior order of Verchere J. [who made the order providing custody to the
mother].
[Emphasis
added]
[629] In his
reasons, McIntrye J. did not say or conclude that once the Directors authority
under the child protection legislation is engaged all pre-existing orders of
the Supreme Court are always suspended.
[630]
I note that the Supreme Court of Canada similarly held in Kredl v. Attorney
General of Quebec, [1966] S.C.R. 320, that the principle of res judicata
did not apply to custody orders in child welfare cases because the factual
circumstances in which the order was initially made might change depending on
the best interests of the child, at pp. 326-327:
Appellant then argued that
neither the Social Welfare Court nor any of its Judges have jurisdiction to
interfere with a judgment of the Superior Court which carries with it the force
of res judicata. A judgment of the Superior Court which awards the custody of a
child may be changed or modified every time the interest of the child requires
it. The unalterable consequences of res judicata do not attach to a judgment of
this nature. Trudel: Traité de droit civil du Québec, vol. 2, p. 49. The
inquiry in the Social Welfare Court may very well show, in certain cases, that
the person, to whom the Superior Court has previously entrusted the custody of
a child, has now become unworthy of it and that it should be committed to somebody
else. The jurisdiction of the Social Welfare Court to do so must be ascertained
by reference to the terms of the Youth Protection Act–the validity of which is
not challenged–and not by reference to the doctrine of res judicata which, in
addition and in the present hypothesis, can hardly have more virtue in the
Social Welfare Court than it has in the Superior Court.
[631] The
Province also relied on Williams v. Hillier (1981), 33 A.R. 613 (C.A.);
and Kunkel v. Kunkel (1994), 111 D.L.R. (4th) 457, which held that an
order made under the Divorce Act determining rights inter se the
parents did not, of itself, create exclusive jurisdiction that automatically
excluded subsequent orders made by other courts of competent jurisdiction in
matters of child welfare.
[632] Williams
concerned adoption proceedings brought subsequent to a custody order made
under the Divorce Act. Justice Laycraft did not view the doctrine of
paramountcy to be in issue, writing at paras. 29-30 that when enacting
the Divorce Act, Parliament did not purport to assert jurisdiction in
the Provincial fields of adoption or child welfare or guardianship. Speaking
generally, Laycraft J.A. said that child welfare cases determine different
issues between different parties than does the order giving corollary relief in
a divorce. Williams was cited by our Court of Appeal in an adoption
case, Re Adoption of Male Infant No. 78-08-022716 (B.C.C.A.) (1986),
1 B.C.L.R. (2d) 257 (C.A.), though not in relation to the paramountcy issue.
[633] A different
approach to the issue was taken 13 years later in Kunkel by the Alberta
Court of Appeal. The parties divorced with custody of the son going to the
mother. The appellant father was ordered to pay monthly child support. The
mother subsequently remarried and her new husband adopted her son pursuant to a
court order. The father then applied for a termination of his child support
obligations. The dismissal of his application was overturned on appeal.
[634]
One of the issues before the Court was whether Williams had been
correctly decided. Justice Hetherington, writing for the majority, agreed with
the conclusion that the adoption order made under provincial legislation
prevailed over the inconsistent provision for access in the decree nisi.
However, she did not agree with Laycraft J.A.s reasons for arriving at this
decision. While Laycraft J.A. found in his case that the two orders were in
conflict in relation to access, Heatherington J.A. was of the view that the
adoption order superseded the earlier provision for access in the decree nisi.
She said, at paras. 16-20, that access orders made under the Divorce
Act can be varied when circumstances have changed. The doctrine of
paramountcy may arise but much depends on the issue determined by an order made
under the Divorce Act:
16 An order for access made in a divorce action
determines the rights of access of a party to the action based on the
circumstances at the time the order is made. It is not final. The Divorce
Act has never given any court the power to make such an order final. It has
always provided that an order for access can be varied at any time if the
circumstances under which it was made have changed. Mr. W. applied for
such a variation in W. v. H. He did so under s. 11(2) of the Divorce
Act, R.S.C. 1970, c. D-8. (The corresponding provisions in the present
Act are in ss. (1) and (5) of s. 17.) However, there was nothing in
the Divorce Act at that time, nor is there now, to suggest that once an
order for access has been made under the Divorce Act, it can only be
varied under that Act. The Divorce Act has never purported to exclude
the possibility that a court may later make an order affecting access under
another statute or pursuant to the parens patriae jurisdiction of the
court, if the circumstances have changed.
17 In
an article in The Canadian Bar Revue (E. Colvin, "Custody Orders Under the
Constitution" (1976) 56 Can. Bar Rev. 1) Professor Colvin made this point
in relation to custody orders made under the Divorce Act. He said at 5:
"Custody orders pose
special problems for the operation of federal paramountcy because the courts
have traditionally approached such orders on the basis that they are made
merely with reference to a particular set of circumstances pertaining at a
given time, and can never be final. They can only be ‘permanent’ in the sense
of being indefinite. Thus a court will always be justified in re-examining the
issue in the light of new circumstances, including the increased age of a child
with the passage of time. As Fauteux J. said in Kredl v. Attorney
General of Quebec: ‘The unalterable consequences of res judicata do not
attach to a judgment of this nature.’ If, therefore, custody orders under the Divorce
Act are made with reference to circumstances pertaining at the time of
divorce, there need not necessarily be any conflict with subsequent orders made
under provincial jurisdiction when circumstances have changed. Within any
province in which the subsequent provincial order is made or enforced it may
supersede the order under the Divorce Act. Federal paramountcy will
only apply to subsequent provincial orders which have been made in the light of
new circumstances if it is accepted that the provision for variation of the
divorce order under section 11(2) of the Divorce Act is intended to
create an exclusive jurisdiction thereafter. And it is open to dispute whether
this provision does embody this intention."
(The passage quoted by Professor Colvin from Kredl v.
Attorney-General of Quebec, [1966] S.C.R. 320 is found at 326-327.) These
comments apply as well to access orders and orders for the payment of
maintenance.
18 In my view the intervention of a person or entity
not involved at the time when a custody, access or maintenance order was made
under the Divorce Act would be a new circumstance. And I do not accept
that the provisions in the Divorce Act for the variation of orders for
custody, access or maintenance were intended to create an exclusive
jurisdiction.
19 Of course, if an order for custody, access or
maintenance were made under the Divorce Act, and a court made an
inconsistent order under a provincial statute or pursuant to its parens
patriae jurisdiction without any intervening change of circumstances, there
would be a direct conflict between the orders. They would constitute contradictory
determinations of the same issue. Under the paramountcy doctrine the order made
under the Divorce Act would then prevail.
20 However,
in my view it is an implied term of every order for corollary relief granted
under the Divorce Act that it is not final, and that if circumstances
change, it may be superseded by an order of any court having
jurisdiction, whether under the Divorce Act, a provincial statute, or
the parens patriae jurisdiction of the court. For example, if a court
granted an adoption order or a wardship order under provincial legislation, and
that order was inconsistent with a prior order for corollary relief made under
the Divorce Act, the adoption order or wardship order would supersede
the order for corollary relief.
[Emphasis
added]
[635] What flows
from these various cases is that depending on the circumstances extant at the
time the prior Divorce Act order was made, as well as the issue(s)
determined by the order, a subsequent order made by a court of competent
jurisdiction may, but not always will, supersede the previous order.
[636] In the
present case, protection concerns in relation to B.G. were squarely before the
Court on the application that led to the issuance of the Supervised Access
Order. That order was made to protect four young children in the context of
significant allegations and a substantial body of evidence suggesting that B.G.
had sexually and physically abused them, pending determination of the case on
the merits.
[637] The
Supervised Access Order bound B.G. but not the Director because she was not a
party to the family law action (nor was she referred to in the order).
Importantly, however, the Director knew that the Supervised Access Order was
directly concerned with the protection of the children from B.G. Through her
involvement with J.P. and B.G., the Director was well aware of the child
protection allegations and the access issues extant in the family law action.
From her attendances (through social workers and counsel) in this Court during
the family law action, both before and after the Apprehension, the Director
knew that the Supervised Access Order was a variation of Master Taylors
restraining order granting interim sole custody to J.P. and prohibiting B.G.
from having direct or indirect contact with the children and J.P. The Director
knew that on the application that led to the issuance of the Supervised Access
Order, J.P. had adduced a substantial body of affidavit evidence in support of
her allegations of sexual and physical abuse.
[638] The
children were apprehended on the basis of purported protection concerns in
relation to J.P. The subsequent Provincial Court orders made in the
Apprehension Proceeding in respect of the Directors discretion concerning B.G.s
access to the children were not, however, made as a result of a judicial
determination of new facts and circumstances regarding B.G. The judges who
issued them were not made aware of the context in which the Supervised Access
Order was made or the protection concerns it addressed. As a result, they did
not consider their jurisdiction or the appropriateness of making those orders
in light of the prior Supervised Access Order. On their face, the Provincial
Court orders permitted the Director to exercise her discretion regarding B.G.s
access to the children in a way that would facilitate his breach of the
Supervised Access Order.
[639] In these
very specific circumstances, I find the subsequent Provincial Court orders did
not supersede the Supervised Access Order.
[640] In terms
of access for B.G., the conflict between the two orders arose when the Director
sought to exercise her discretion afforded to her by Judge Davis order in a
manner inconsistent with the protection concerns for B.G. addressed by the
Supervised Access Order. Social workers involved in the case understood in late
December 2009 and on June 2, 2010 that I required B.G.s access to be
supervised and yet, chose to continue to provide him with unsupervised access
instead of returning to this Court to seek clarification and directions as the
Director had said in January 2010, that she would do. In closing argument, the
Province conceded that the Director ought to have returned to this Court to
apprise it of her decision to provide unsupervised access.
[641] The
Director was not without a remedy. She had standing to apply to this Court to
vary the terms of the Supervised Access Order if she had concerns about its
potential impact on the operation of her duties to protect children. Once the
child protection proceedings were commenced, the Director could have sought leave
from this Court, pursuant to s. 17 of the Divorce Act, to bring
such an application. Section 17(1)(b) permits the Court to vary a custody
order or any provision thereof on application by either or both former spouses or
by any other person. Subsequent amendments to the CFCSA formally
recognize what I consider to have been the Directors standing, as the
government officer in charge of protection of children, to make that
application in a family law action. Section 97.1 now specifically provides
standing to the Director to apply per s. 204(2) of the Family Law Act,
S.B.C. 2011, c. 25 for leave to intervene in a family law proceeding where
the Director considers it is in the best interests of a child to do so.
[642] In
conclusion, I am of the opinion that in the particular circumstances of this
case, the subsequent Provincial Court orders issued under the CFCSA
granting the Director the discretion to provide supervised access to B.G. did
not supersede or vary the Supervised Access Order.
3. Is
the Province Liable for the Directors Decision to Provide Unsupervised Access?
[643] Even if I
were to have accepted the Directors position that the Provincial Court order
did supersede the Supervised Access Order, the question remains whether she
appropriately exercised her discretion to permit B.G. unsupervised access to
his children. For the reasons I now discuss, I find that she did not.
[644] By way of
overview, I will start this section by setting out my determination that given
the lack of a clear statement in the law, I accept that for a considerable
period of time throughout, the Director and Ministry employees involved with
the case honestly believed that their authority to provide unsupervised access
to B.G. derived from the orders of the Provincial Court.
[645] In this
section I will explain that the Director and social workers involved in the
case could not, however, reasonably have held their belief about their
authority to provide unsupervised access after August 10, 2011. I am satisfied
that the Director was so intent on providing unsupervised access to B.G., the
Director was prepared to take the risk of sanctions from this Court.
[646] I will turn
to what occurred within the Ministry in respect of B.G.s access to the
children.
[647]
The Intake team held the view as early as January 2010 that B.G. should
be allowed unsupervised access to the children. I accept the evidence of Ms. Lejko
that had the views of the Intake team prevailed without her intervention, B.G.
would have been allowed unsupervised access at that time. It was Ms. Lejko
who insisted that a parental capacity assessment be undertaken:
Q All right. But when decisions are made in the
intake team, is there any review of those decisions? So in this particular
case, let me be very clear, Mr. Strickland appears to have been running
the show?
A As the team leader – –
Q As the team – –
A – – he would be.
Q – – did anyone critically review the events
leading up to the apprehension and the allegations that were raised by the
mother? That were processed by the Ministry? Did anyone actually look at that?
A I think Ive already answered that question
in that – –
Q Who?
A Mr. Blandford,
the initial worker, Xeni Pop, my involvement in terms of being Mr. Blandfords
supervisor. If we had completely taken intakes position as the only
reality, we would have supported access to the father in January of 2010.
There was – – the request for the parenting capacity was exactly what we were
looking to build upon which was a critical review by someone outside of the
Ministry to look at the information, meet with the family, meet with the
children and provide their opinion.
[Emphasis
added]
[648] I find
that when Ms. Lejko referred to access to the father, she meant
unsupervised access. This is because Ms. Lejko knew by January 4, 2010
that B.G. was already enjoying supervised access.
[649]
For example, on January 4, two days before the older children were to be
interviewed by the VPD, Mr. Strickland provided B.G. with supervised
access to the children at the Ministrys West Broadway office, believing them
to be suffering harm by not having seen their father since his arrest in
October 2009. Mr. Stricklands evidence was that he thought the children
would benefit from an access visit with their father and that it would settle
them down. No notes were made of the access visit and it was not recorded in
MIS. In his testimony, he could not say what requirements or guidelines were
given to the Ministry employee charged with the responsibility to supervise
other than to presume that she had been given specific instructions:
Q And why not?
A Presumably the
staff person who – – Stephanie Kennedy [phonetic], who sat in on that visit
with some fairly specific instructions around how that visit was to be
conducted, didnt take any – – any notes, and I cant recall at this point
whether I had asked her to document notes of her observations prior to the
visit or not.
It would have been her normal practice to do that.
In spite of what he described as Ms. Kennedys normal
practice, no notes have been produced.
[650] The views
of the Intake team directly influenced the Family Services team, including Mr. Blandford
and Ms. Pop. Ms. Lejko testified that after they reviewed the file
from the Intake team and before the parental capacity assessment was received, Mr. Blandford
and Ms. Pop supported unsupervised access for B.G.
[651] I accept Mr. Blandfords
evidence that he was unaware of the Supervised Access Order and many facts and
events that preceded his teams involvement with the case. Mr. Blandford
explained that except for the file transfer document that came with the file
when it was transferred by the Intake team, he did not review any of the file
documents that pre-dated the transfer to his team. He chose instead to rely on Mr. Stricklands
assurance that all necessary work had been done by the Intake team. Not having
reviewed the file documents, Mr. Blandford was not aware of the many facts
and events that preceded his teams involvement with the case. Mr. Blandford
and his team made decisions about the children, their protection, safety, and
welfare, the nature of access, ongoing support of B.G., and the conduct of the
ongoing Apprehension Proceeding, lacking appropriate knowledge of key
information in the file about the allegations of physical and sexual abuse.
[652] In her
efforts to curb the enthusiasm of the Intake team to provide unsupervised
access, Ms. Lejko instructed her Family Services team to hold off on any
decision concerning unsupervised access until the Ministry received the
parental capacity report from Dr. Eirikson. She wanted her subordinates to
obtain a critical assessment from an appropriate professional outside the Ministry
before providing unsupervised access.
[653] I found Ms. Lejko
took a careful and prudent approach before agreeing that unsupervised access
should be allowed. It was only after Dr. Eiriksons report was received
that Ms. Lejko agreed to allow B.G. unsupervised access to the children.
[654] Unfortunately,
Ms. Lejko did not know that Dr. Eirikson had not been retained to
investigate the veracity of the reports of sexual abuse of the children
advanced by J.P. She could not have known that Dr. Eirikson recommended that
B.G. have custody even though he considered BT.G.s disclosures of genital
contact with his father during showers with his father to be inappropriate
sexualized conduct on B.G.s part (see para. 397 of the Reasons).
[655] Equally
unfortunate, there was no attempt by the Director to engage in a risk
assessment to determine whether B.G. posed a risk to the children –
acknowledged by Ministry witnesses to have been required for such a critical
decision – before B.G.s access regime was changed from supervised to
unsupervised.
[656] Ms. Lejko
and Mr. Blandford acknowledged that a risk assessment plan was required
but not undertaken. Mr. Blandfords explanation that his team was behind
in its paper work so that the Ministrys policy requirements could not be met
does not provide any justification for his teams omissions. The reality is
that Ms. Lekjo and Mr. Blandford did not believe that B.G. sexually
abused the children as reported by J.P. Their beliefs were the result of the
Directors failure to assess and investigate those allegations.
[657] Instead, Dr. Eiriksons
report was treated as a risk assessment, which in my opinion, was not
appropriate because it could not obviate the requirement to conduct a criminal
records check (which would have revealed a recent DUI charge), a review of
the inquiry into the location of B.G.s two missing rifles, and an in depth
assessment of the risks posed by unsupervised access.
[658] The
decision to permit unsupervised access to B.G. was made on May 13, 2010, by Ms. Lejko
in consultation with Mr. Blandford. Apart from a brief note prepared by Ms. Pop
recording the decision to allow unsupervised access to B.G., there are no notes
documenting the Directors reasoning or analysis.
[659] As soon as
she learned of the decision, J.P. voiced her strong objection to the Director.
J.P. was vehemently opposed to unsupervised access. She made it clear to the
Director that she was convinced that B.G. would sexually abuse the children if
he was allowed unsupervised access. It is an understatement to say that J.P.
was relentless in voicing her objection to the Director and Ministry employees.
Her objection was clear and profound.
[660] B.G.s
unsupervised access to the children increased significantly over time, to
include overnight visits, weekend visits, and vacations lasting up to slightly
over two weeks.
[661] There were
adverse consequences suffered by the children and for the litigation process as
a result.
[662] Unsupervised
access allowed the children to spend time with the parent who had sexually and
physically abused the three eldest children. The Director was aware that during
unsupervised access, the children heard their father denigrate the mental
health of their mother and heard him say that she required medical attention. I
am satisfied that the older children were upset by his remarks. The Director took
no steps to criticize him for his remarks. BN.G. also suffered bruising as a
result of contact from his father during unsupervised access. P.G. was sexually
abused.
[663] Unsupervised
access also adversely affected the investigation carried out by Mr. Colby.
My discussion and findings concerning that impact are set out in section XIII
of these reasons.
[664]
I turn now to what occurred in this Court and in Provincial Court. Following
the Apprehension, the Director attended in Provincial Court for the
presentation hearing on January 20, 2010, which was adjourned over to February
3. At that time, Judge Werier ordered that the children remain in the interim
custody of the Director pending the protection hearing which was then scheduled
to commence on March 17, 2010. Judge Werier also ordered that J.P. and
B.G. have reasonable access to their children, supervised at the discretion of
the Director. The order stated:
THIS COURT FURTHER ORDERS that
pursuant to section 55 of the Act, [J.P.] and [B.G.], the parents of the
children, may have reasonable access to the children, supervised at the
discretion of the Director;
[665] The child
protection hearing was adjourned from March 17 to April 14, 2010, to be
presided over by Judge Davis. The protection hearing did not proceed because
J.P. and B.G. consented to the temporary custody order that allowed the
Director to retain custody of the children for three months to July 14, 2010.
Judge Davis order also included a provision for access that is identical in
wording to Judge Weriers order.
[666] The
Directors position throughout has been that Judge Davis order authorized her,
in her discretion, to provide either parent with supervised or unsupervised
access to their children.
[667] The
Directors counsel attended in this Court on January 11 and 18, 2010. I was told
that B.G.s access was being supervised and that the Director would return to
this Court to address my concerns about whether the protection hearing should
be tried at the same time as the sexual abuse and mental health issues extant
in the family law action. That never occurred.
[668] As I have
already said, the Director knew that the Supervised Access Order had been made
in the context of protection concerns for the children following allegations of
sexual and physical abuse committed by their father. The Director knew that
J.P. had adduced a significant body of affidavit evidence in support of her
allegations of sexual and physical abuse. The Director was also aware of my
ongoing concern, as a result of her attendances in this Court in January 2010,
about possible conflicts from parallel proceedings in this Court and in the
Provincial Court concerning the veracity of the sexual abuse allegations and
the risk of harm that may be posed to the children.
[669] I was
first made aware of the Directors decision to provide unsupervised access to
B.G. by J.P. during the hearing of B.G.s first application for interim custody
on June 2, 2010.
[670]
Xeni Pop, a social worker handling the day-to-day aspects of the
apprehension on behalf of the Director, was present in court on June 2. Once I
learned that unsupervised access was taking place, I called Ms. Pop
forward to express my concern to her and B.G. about B.G.s unsupervised access:
THE COURT: All
right. Now, are you — youre — are you having access to your children?
[B.G.]: I am, yes.
THE COURT: Is it supervised or unsupervised?
[B.G.]: Unsupervised,
and its at my discretion to organize and coordinate the visits with [the
foster parents].
…
THE COURT: Is Ms. Pop
in the courtroom? Ms. Pop, Im going to ask you if you can communicate
back a message to the lawyers [for the Ministry], that is the [Provincial]
court order says that Mr. — that the parties may have reasonable access
to the children, supervised, at the discretion of the Director.
UNIDENTIFIED SPEAKER: Yes, My Lord.
[J.P.]: Yeah.
THE COURT: And
Im not — and Im now hearing that [B.G.] is being allowed unsupervised
access, and that doesnt appear to be what the order states.
…
THE COURT: …
I want you to communicate my concern … to counsel, and I want them to —
UNIDENTIFIED SPEAKER: I will let them know.
THE COURT: — I want them to
address that issue.
[671] I read the
Provincial Court order as requiring supervised access for both parents, with
the Director having been given the discretion to determine the circumstances of
supervised access. I was of the view that the order was consistent with the
Supervised Access Order. In the course of dismissing B.G.s application I
directed J.P. to address her request for professional supervision of B.G.s
access under the Provincial Court order in that court because that is where the
jurisdiction to do so was found.
[672] In closing
submissions in the present case, the Province argued that the Director was
confused by my remarks in Court on June 2, and did not think she was off-side
the Supervised Access Order then or later because I did not reiterate my
concerns when Ms. Feenie advised me at a trial planning conference held in
April 2011 that B.G. was enjoying unsupervised access. The submission
mischaracterizes the evidence.
[673] I will
start with the Provinces submission that the Director was confused about my
comments on June 2, 2010. The Provinces submission was that the Director was
entitled to take away from my remarks a direction to J.P. that jurisdiction
concerning the Directors ability to provide unsupervised access to B.G. rested
with the Provincial Court (and not this Court). That is simply not the case. My
remarks were clear that J.P. must apply to Provincial Court to vary an order of
that court to require access to be supervised by a professional access
supervisor.
[674]
As well, the Director understood my remarks to mean that B.G.s access
should be supervised. Shortly after the hearing concluded, Ms. Pop
telephoned Ms. Feenies law firm and spoke to Ms. Le Beau (in Ms. Feenies
absence). Ms. Pop conveyed the essence of my remarks to counsel that
B.G.s access should be supervised, which are recorded in Ms. Le Beaus
notes as follows:
Xeni in SC. Judge made order for s. 15 report.
Judge also indicating that
access btn F + C should be supervised.
[Emphasis
added]
Ms. Le Beau sent Ms. Pops report to Ms. Feenie.
[675]
Ms. Pop also sent an email to Ms. Feenie the next day, stating
her understanding of what I said:
The Judge presiding over the
[P/G] divorce wanted me to tell you that [B.G.] is to have supervised
visits at the discretion of the director. He seemed to be under the
impression that I am somehow violating the order and he was not interested
in hearing about it from me, just instructed me to pass it along to you and
Robin Stewart.
[Emphasis
added – underlining only; bold in original]
[676] Accordingly,
the Director knew, from what Ms. Pop reported shortly after the hearing
adjourned, that I required B.G.s access to be supervised and chose to
disregard it. The Director did not appear in this Court to deal with the issue until
forced to do so in August 2011.
[677] Nor is
there any merit to the Provinces submission that J.P. was told at a subsequent
case conference in this Court in April 2011 that if she wanted B.G.s access to
be supervised, she had to apply to Provincial Court. The transcript shows that
J.Ps request for an order that B.G.s access be supervised, and by a
professional supervisor, should be the subject of a formal application. No
statement was made by this Court, as the Province argued, to suggest that any
such application could only be brought in Provincial Court or that the Director
was only subject to the jurisdiction of the Provincial Court.
[678] The Province
also maintains that the Director relied on the advice of her counsel when first
making the decision to grant unsupervised access to B.G. in May 2010 and then
when continuing to allow it in the face of J.P.s objections and comments from
this Court. I do not agree. I find that when the Director made her decision in
May 2010 to provide unsupervised access to B.G., she did not do so, as the
Province contends, after first having obtained legal advice from Ms. Feenie
or her law firm about the effect of the Supervised Access Order and the
Directors obligation to abide by it. I find that at most, there was a brief
and general discussion between several Ministry employees and Ms. Feenie
about the Directors authority to grant unsupervised access arising from
Provincial Court orders that had been made. The effect of the Supervised Access
Order was not considered. The Director did not specifically address the issue
of the effect of the Supervised Access Order until the following year, in
August 2011, when the issue was raised before this Court by J.P.s newly
retained counsel. As I go on to find, even then, the Director and Ministry
ignored Ms. Feenies advice and continued to provide unsupervised access
contrary to it. Accordingly, the reliance on legal advice defence in respect of
the decision in May 2010 to grant unsupervised access advanced by the Province
has no application to the facts of this case.
[679] In closing
argument, the Province and counsel for Ms. Feenie also sought to
characterize the Supervised Access Order as temporal in its application. They
argued that some of the remarks that I made in my oral reasons issued in
respect of the Supervised Access Order meant it expired at the end of the 2009
holiday period. That submission overlooks the clear terms of the order itself
and is not premised on any evidence. There is no evidence that the Director or
her counsel construed the Supervised Access Order in that manner. As I have
already noted, the Director and her counsel were always very clear in their understanding
that the Supervised Access Order was intended to require B.G.s access to be
supervised throughout. The evidence is also clear that the Director knew of the
circumstances in which it was made, and that the Supervised Access Order was to
protect the children from possible harm from their father.
[680] The only
aspect of the Supervised Access Order that was temporal in nature was the
appointment of J.P.s brother to be the access supervisor, pending the return
of B.G. and J.P to Court in January 2010 to determine the appointment of a
professional access supervisor. I do not accept the submission advanced by Ms. Feenies
counsel, joined in by the Province, that the form of the order was drawn in
error and the Supervised Access Order expired on January 10, 2009. There is no
support in the evidence from any of the defence witnesses for that construction
of the Supervised Access Order or that they believed that to be the case.
Moreover, the submission was never advanced at any time in the Apprehension
Proceeding or in this action prior to closing argument.
[681] The issue
of B.G.s unsupervised access and non-compliance with the Supervised Access
Order was raised again before this Court by J.P. at the hearing of B.G.s
second custody application on August 10, 2011. When it was, the Director
responded that she was not obliged to abide by existing orders of the Supreme
Court because she operated under the CFCSA, which she described as a
complete code that meant she was bound by orders of the Provincial Court and
not by the Supervised Access Order. There was no suggestion that the Supervised
Access Order was temporal in nature. The hearing of the argument of the merits
of the Directors submission that she was not obliged to abide by existing
orders of this Court was put over to continue on August 25, 2011.
[682]
Argument in respect of the other issues did not complete and the case
was set to continue the next day, August 11. Before the hearing was adjourned,
I reminded B.G., in the presence of Directors counsel, that the Supervised
Access Order required that his access be supervised:
Id like the matter addressed as
to – – in these circumstances theres a court order that binds [B.G.] that I
issued on December 21, 2009. That order binds him; it didnt bind the Ministry.
[683]
I then made the following remarks to Directors counsel to address when
the hearing resumed:
How can it be said that the director can determine on its own
that [B.G.] should not be bound by that court order and engage in conduct that
facilitates [B.G.] acting in breach of that court order? Putting it another
way, if the ministry felt that it has the right to determine who should have
access without an application being brought, could it – – what right did the
ministry have to then advise [B.G.] that he could participate in unsupervised
access in the face of a court order that binds [B.G.]?
I expect those issues to be fully
canvassed on August 25th.
And if the ministry continues to
permit unsupervised access, it does so – – while the issue is live and
outstanding – – because as I see it, the cases that youve provided, Ms. Feenie,
do not specifically address the circumstances raised on this application. And
then that [leads] me to the last point: if theres no clear authority on this
point – – because none has been provided to me so far, Ms. Feenie – – why
didnt the ministry come back and seek directions from the court if theres no
clear authority on the point? Particularly since the ministry has been
participating in these applications throughout and the ministry has asked that
this court also sit in the role of a [provincial] court judge in dealing with
the intervention issues.
So Ive set aside a day for that to be argued, and I view it to be a very
serious matter that I wish to have resolved.
[Emphasis
added]
[684] The
Director was made aware of and was under no misapprehension about the meaning
of those remarks. She understood from Ms. Feenies report about
proceedings in Court on August 10, which she sent to her client later that same
day, that B.G.s access was to be supervised. Ms. Lejko testified that Ms. Feenies
advice was that although the case law supported the Directors decision to
provide unsupervised access, the Director should consider the views of the
Court and change access to supervised access. Nonetheless, senior social
workers responsible to determine the nature of B.G.s access decided to
disregard the Courts remarks and to continue to provide unsupervised access to
B.G.
[685]
B.G. made it clear that he did not intend to abide by the Supervised
Access Order. Later in the day on August 10, he wrote to Ms. Feenie advising
her that he planned to carry on with an unsupervised access visit even if it
meant he was in breach of the Supervised Access Order:
Corinne,
If this has any bearing at all, I have an extended visit
scheduled this weekend to celebrate [K.G.s] 7th birthday. She has
been excited about it for weeks.
I hate to say it but Im willing to risk breaching J
Walkers access order (if in fact that is what I would be doing) for the
benefit of the kids. [J.P.] has done this multiple times with seemingly no
repercussions.
To say Im disappointed in
todays setback would be a huge understatement. In retrospect, I would have
been better off not seeking interim custody at all, despite the vigorous
encouragement of MCFD SWs to do so.
[Emphasis
added]
[686] Ms. Feenies
response was that she would speak with Mr. Blandford and Ms. Lejko
but did not anticipate changes to the access schedule. The Director did not
respond to B.G.s stated intention to breach a court order if that is what it
took for him to have unsupervised access. Moreover, the Director continued to
support B.G.s application for custody.
[687]
The next day, August 11, 2011, B.G. wrote a further email to Ms. Feenie
advising her that he was going to take the two older children away on a
three-day vacation. He said that his attendance at a hearing on Monday, August
15 would make the trip impossible. He asked her to push to have the hearing
moved to Wednesday, August 17. He wrote:
I apologize for the multiple
emails but I have plans to take [B.T.G.] and [K.G.] on a 3 day vacation for
their birthdays. A hearing Monday would make this trip impossible. At the time
of the call from SC I didnt even think of it. Im wondering if it would be
possible to push to Wed? Are you available that day?
[688] It should
have been clear to Ms. Feenie, who the Province concedes was acting as the
Directors agent, that B.G. would be away and unavailable with the two older children
on August 15. If it was not, then she should have sought clarification because
she was being told by the parent whom the Director was supporting for sole
custody that he was prepared to breach a court order. Instead, Ms. Feenies
response was that she was available to attend court on the Wednesday but that
it was up to B.G. to try to arrange it.
[689]
The hearing proceeded on August 15. B.G. attended by telephone
(B.G.s request to attend the hearing by telephone was granted on the basis
that he was out of town). B.G. should have disclosed that he was away with the
children. He did not. Nor did the Director. Thus, information that could be
detrimental to the Directors plan to place the children in the custody of B.G.
was not disclosed.
[690] Ms. Feenies
evidence that she was not clear on when B.G. would be away with the children is
belied by other of her evidence that she presumed he would be away with the
children on an extended weekend visit:
Q Okay.
So it is pretty clear that [B.G.] was of the view that he was being encouraged
to apply for interim custody with vigorous support from MCFD social workers;
correct?
A It
would appear so from that email, yes.
Q Right.
And hes obviously telling you that theres an extended weekend access coming
up.
A An
extended visit scheduled on the weekend, yes.
Q So
let me rephrase the question. What did you understand this particular
portion of the email to mean to you?
A Exactly
what it says, that he appears to be saying hes willing to risk breaching the
access as there – – if it would be for the benefit of the kids. And I – –
but I – – my – – my issue, and why I will not respond on the affirmative to the
question as you posed it, I do not see that as his requesting any kind of input
for me on that.
[Emphasis added]
[691]
Even though B.G.s stated intention to breach a court order if
necessary to enjoy unsupervised access did not result in any critical response
from the Director, the Director did not hesitate to chastise J.P. for what she
said was her failure to abide by court orders. At different times, social
workers (including Mr. Strickland) criticized J.P. for what they thought
was her failure to abide by the terms of the Supervised Access Order to deliver
the children in December 2009 to B.G. for supervised access. Mr. Strickland
viewed her request on December 24 to prevent B.G.s access to raise s. 13
concerns even though they were never suggested as a basis for the Apprehension.
[692] When
the hearing of J.P.s application for a declaration that the Director lost
jurisdiction over the children resumed on August 15, the Supervised Access
Order was raised again by the Director in submissions. When dealing with the
temporary custody order, Ms. Feenie made the following submission on
behalf of the Director concerning the Provincial Courts understanding of the
CFCSA:
– – the Provincial Courts
understanding of the law that the Child, Family and Community Service Act proceedings
render any other proceedings essentially not – – certainly not null and void,
but leave it as between the parties, which obviously were [B.G.] and [J.P.],
and do not affect the director or the rulings of the Provincial Court under the
Child, Family and Community Service Act.
[693]
The Director was left with no misunderstanding concerning the issue of
B.G.s obligation to comply with the Supervised Access Order:
THE COURT: Well, lets – –
lets assume for the moment your – – your view is correct. Theres still an
order that binds [B.G.] thats an order of this court. And it may not bind
the Ministry, but it would certainly – – it binds Mr. – – sorry, [B.G.] It
binds [B.G.] to supervised access. Hes brought on no application to vary that
order. He brought an application for interim custody, which I dismissed. How
could [B.G.] stand up before a Provincial Court judge and say, I consent to
supervised access, and [J.P.] do that, and somehow voluntarily and
unilaterally vary the order that I made without bringing an application back on
in front of me?
[Emphasis
added]
[694] Following
on those remarks, and during the hearing on August 15, in which B.G.
participated by telephone, I cautioned all parties in oral reasons for judgment
that I expected the Supervised Access Order to be complied with. I said:
[5] I am very concerned that B.G. has and continues
to be in breach of my order made December 21, 2009. I am also very concerned
that the representatives of the Ministry and the Director are facilitating
B.G.s breach and continuing breach of that order. A party who has facilitated
a breach of a Court order may also be subject to sanctions by the Court.
[6] Having expressed those concerns, I wish to say
that I expect my order of December 21, 2009, to be adhered to. No application
has been brought to vary it. It has not been varied, and I have dismissed
B.G.s application for interim custody.
…
[8] In the meantime, I want to make it clear, if I
have not done so thus far, that I expect my order of December 21, 2009,
concerning B.G.s supervised access of the children, to be adhered to.
[9] The Director apprehended the children since that
order was made. Therefore, my order of December 21, 2009, should be amended to
reflect the reality of the situation as well as the spirit of my order, i.e.,
that B.G.s access be supervised. That order binds B.G. I expect him and all
parties who appear before this Court to comply with my order. I expect the
parties to refrain from taking any steps that will facilitate a breach of that
order. I do not know how I can be any clearer than that.
…
[13] I
expect complete compliance with my order, and if there is non-compliance, I
will hear applications in respect of any breach.
[Emphasis added]
[695]
I also varied the Supervised Access Order so that the Director was to supervise
B.G.s access. The order stated:
6. The December 21, 2009
Order of this Court is hereby amended to delete any reference to the Claimants
brother [G.P.] and the access supervisor shall be the Director.
The Director was therefore the subject of an order of
the Supreme Court. The form of the order was endorsed by Ms. Feenie as
counsel for the Director.
[696]
The Director was provided with a very clear report from Ms. Feenie
about the outcome of the hearing on August 15, 2011, which she sent by email in
mid-afternoon. In it, she advised Ms. Robinson, Ms. Lejko, and Mr. Blandford
of the outcome of the hearing:
Mr. Justice Walker adjourned the above loss of
jurisdiction issue to August 25, 2011 when he will also hear the
jurisdictional argument on whether the CFCSA and orders made thereunder
supersede his order of December 21, 2009 for supervised access to the father
and the argument flowing therefrom as to whether [B.G.] has breached the
supervised access order of December 21, 2009 where the Director has facilitated
that breach.
But then he stated more than once that [B.G.] continues to
be in breach of his December 21, 2009, order and the Director continues to
facilitate such breach and that [B.G.] and the Director could, as a result, be
subject to sanctions.
He then amended his December 21,
2009, order to eliminate references to [G.P.] supervising [B.G.]s access and
stated that he expected his amended order to be adhered to by Mr. [G.] and
that the Director should be supervising [B.G.]s access.
[Emphasis
added]
[697] Ms. Lejko
testified that those senior to her in the Ministry were prepared to take the
risk that sanctions could be imposed.
[698]
I have set out below an excerpt from Ms. Lekjos cross-examination
where she was taken to an email report sent by Ms. Feenie to senior social
workers following the August 15, 2011 court hearing, advising of the risk of
sanctions if unsupervised access was allowed to continue.
Q
We have a report from Ms. Feenie
subsequent to the August 15, 2011 [hearing].
Mr. Justice Walker adjourned
the above loss of jurisdiction issue to August 25, 2011, when he will also hear
the jurisdictional argument of whether the CFCSA and orders made theyre [sic]
under, supersede his order of December 21, 2009, for supervised access to the
father and the argument flowing therefrom as to whether [B.G.] has breached the
supervised access order of December 21, 2009, where the Director has
facilitated that breach.
But then he – –
Referring to the judge.
— stated more than once that [B.G.]
continues to be in breach of his December 21, 2009, order and the Director
continues to faciliate such breach and that [B.G.] and the Director could, as a
result, be subject to sanctions.
He then amended his December 21,
2009, order to eliminate the reference [G.P.]s supervising [B.G.]s access and
stated that he expected his amended order to be adhered to by Mr. [G.] and
that the Director should be supervising [B.G.]s access.
Im waiting to have some further
discussions with Robyn around this as to the issue of supervising or not
supervising [B.G.]s access between now and August 25th, whether he
is still willing to deal with the application on the 25th.
Now, you remember reading that?
A Yes.
Q So anyone reading that is pretty clear that
this court is raising the spectre of the possibility that the Director could be
subject to sanctions – –
A Yes.
Q – – for being in breach of this courts
December 21, 2009, order, correct?
THE COURT: I didnt hear her answer.
A Yes.
Q And so what did you do in response to that?
A As I said, there were – – there were
discussions including Sheila Robinson around this. Well, I actually – – as you
see, the email is copied to Sheila, as well. So there were conversations
including Sheila who at the time was Deputy Director and had oversight
responsibility for clinical decisions within the region.
Q Correct.
A So at this point in time Sheila is my direct
supervisor since this is the time period where I am a practice manager.
Q Right. And so what happened? Do you know?
A I am – – as I had mentioned previously, I was
on bereavement leave the, I believe the following week so my memory is – – the
family member was ill at that point in time. I remember that there was
telephone conversation as well as some in-person meetings around this subject. My
recollection is that we decided to – – that the unsupervised access would continue
but my memory is – – it was a difficult time personally for me at that time and
my memory is not as clear.
Q Right.
A Sheila would
have been the primary decision maker in those conversations.
[Emphasis
added]
[699] In fact,
the Director did continue to provide unsupervised access to B.G., and I am
satisfied that she did so fully aware that she could be subject to sanctions
for facilitating a breach of the Supervised Access Order.
[700] The
Director did not take steps to determine whether there was compliance with the
order that I made on August 15 despite having been put on notice by B.G. that
he was prepared to breach a court order if that meant he could have
unsupervised access. Although Mr. Blandford testified that he did not
realize that B.G. was away with the older children, he was the acting social
worker on the file in place of Ms. Allen who was away. Ms. Allen had
previously approved B.G.s out of town access with the children on the Sunshine
Coast. Unfortunately, Mr. Blandford did not know that because he did not
read the file or take any steps to determine the status of the children and
B.G.s access. He left compliance with the order up to B.G., who did not return
the children until the next evening because it suited his convenience.
[701] I do not
agree with the Provinces submission that the only adverse consequence as a
result of the Directors failure to abide by Supreme Court orders was that B.G.
spent one extra day of unsupervised access with the two oldest children because
he returned them on August 16 as opposed to August 15. The Director chose to
ignore the protection concerns that the Supervised Access Order was intended to
deal with as well as this Courts prior remarks that B.G.s access should be
supervised. The Director stuck to her view throughout that she was obliged to
only follow Provincial Court orders when her authority under the CFCSA was
engaged. She did not struggle with the Courts remarks as the Province
argues. The Director was put on notice that B.G. had sexually abused the
children and would continue to do so if he was permitted unsupervised access. The
Director preferred her own view of the merits of the sexual and physical abuse
allegations and was not prepared to take any direction from this Court. She
failed to return to Court as she promised. She was prepared to entrust B.G. to
comply with the order I made on August 15 despite having been told he was
prepared to breach a court order to ensure unsupervised access. Her decision to
allow unsupervised access caused the children to be in increasing amounts of
non-supervised custody with the parent who abused them. The Directors decision
to permit B.G. unsupervised access to the children, and her persistence in
allowing it despite this Courts directions to the contrary, were
manifestations of her unwavering support of B.G. as the suitable parent to have
custody of the children. The Director did not act as a careful parent. The
Directors conduct was wanton and reckless and, at a minimum, grossly negligent
because it was recklessly indifferent to the potential harmful consequences to
the children.
[702] Thus, the
Directors exercise of her discretion in respect of B.G.s access included an
intentional disregard of this Courts requirements for supervised access and
J.P.s objections to unsupervised access as well as recklessness in ensuring
compliance with the August 15 order. She disregarded directions and orders of
this Court and did not act with any diligence, let alone special diligence with
respect to the childrens best interests. The Director was prepared to take the
risk of sanctions in furtherance of her own views.
[703] For
reasons that I explain in a subsequent section, in acting contrary to the order
made on June 2, 2010 concerning the appointment of Mr. Colby, the
Directors conduct also adversely affected the assessment carried out by the
Courts s. 15 expert appointed in the family law action and prolonged the
Apprehension Proceeding.
[704]
The expression of regret for failing to abide by the Supervised Access
Order, which was conveyed on behalf of the Director and the Ministry by the
Province in submissions during closing argument in this trial, fails to account
for the contrary position maintained by the Director throughout the First
Trial. A very clear illustration of the Directors views is shown from the
position she took during submissions in the First Trial. When the issue came up
for argument, new counsel for the Director, Mr. Somers, Q.C., provided
detailed submissions (including case law and legal principles) that were at
odds with the position taken by the Director up to that date. He conveyed an
apology on behalf of the Director, advising that all of the Directors field
agents were to be instructed to abide by orders of all of the courts in this
province. If any of the Director or any Ministry employees took any issue with
any court orders, they were now instructed, he said, to forthwith apply to seek
directions and where necessary, to apply to vary them. He also said that he had
been instructed to write to the Attorney General advising of the Directors
position:
Chief Justice Esson then said, I want to add to this, and
said at paragraph 21, and this is cogent.
It is sometimes said that the Family and Child Service
Act is to be treated as a code unto itself. That phrase may be useful to
emphasize the point that the act embodies a comprehensive legislative scheme
and that, to the end that the scheme will be carried out, effect should be
given to the plain meaning of the language of the act. But it is a statute like
any other.
In other words, this is not going to be a castle with a
moat around it. You must be compliant.
And I can say to Your Lordship now
that, after I express my view, I have received instructions from the
Director to say, I was in error about your access order. I apologize sincerely
to this court and Im going to now advise all the workers in the field, my
field, and its all regional, theres a Director for different regions, That
all orders are to be complied with and directions are to be sought. In
other words, if you have to remove in an emergency situation you go back before
that judge, whether its Court of Appeal, Supreme Court, any other court and
say, My Lord, I had to do this. Now I seek directions.
Thats going
out to the field.
[Emphasis added]
[705] A few days
later, Mr. Somers was compelled to advise me that he had misconstrued his
clients instructions – the Director remained steadfast in her position
regarding compliance with orders of the Supreme Court of British Columbia. The
Directors position was explained on the basis that the Director had relied on
her previous trial counsels advice throughout; if it turned out to be
incorrect, then the Director would be seen to have erred on the advice of
counsel and in that circumstance, the Director would apologize.
[706] Mr. Somers
nonetheless made it clear that he stood by his previous legal submissions and
in doing so, bravely fulfilled his duty as an officer of the Court.
[707] An apology
similar to the one initially made on behalf of the Director by Mr. Somers
was also conveyed by counsel for the Province during closing argument. As well,
in its written submissions, the Province said that the Director is obliged to
follow orders of this Court that are directed at the Director, including her
agent, the Ministry.
[708]
While I do not doubt the bona fides of counsels intention in
making that submission, the submission does not accord with the position taken
by the Director in a recent case in this Court. In R.J.M. v. M.L.J.,
2014 BCSC 2274, issued in September 2014, while oral argument was underway in
this action, the Court found that the Director did not comply with an order
directed against the Ministry by Groves J. In his reasons at para. 16, he
found that they did not follow the order:
[16] I will stop here to
comment on the context of the hearing of the 13th of February 2014.
Again, the Ministry was fully represented at that hearing. The Ministry filed
evidence in support of its position at that hearing. An order was made which
binds the Ministry of Children and Family. They were represented. The court
told them to do something. They have not appealed that order. They have not
made application to reopen the matter. But still, they did not follow the
order.
[709]
Instead, as Groves J. pointed out, the Directors position was that she
is not obliged to only follow orders made by the Provincial Court and not this
Court:
[27] The Ministry of Children and Family is in breach of
an order of the British Columbia Supreme Court. They are arguably in direct
contempt of that order.
[28] I would like to
comment again on something alluded to by former counsel for the Ministry; his
suggestion that the Ministry is only bound to abide, to follow, Provincial
Court orders. This, frankly, is disrespectful and it is wrong. It suggests
that a certain branch of government has no obligation to follow the orders of
the court of superior jurisdiction of that province. It ignores the parens
patriae jurisdiction of the Supreme Court. It ignores, frankly, the
obligation of any person or board or the Ministry or government to abide by
court orders and to obey court orders;
[Emphasis
added]
[710] When the
case was drawn to the Provinces attention in argument in this case, no further
submissions were provided to the Court other than counsels advice concerning
his personal rebuke to the Director that the conduct in R.J.M. was
unsatisfactory.
[711] The
Directors purported apology in this case is not in evidence and not capable of
being tested. In the circumstances, I am not able to ascribe any weight to the
purported apology or confirmation to abide by orders of this Court as conveyed
in counsels submission.
[712]
I must also comment on the plaintiffs submissions that a with prejudice
offer made before trial by the Province on behalf of the Director (one that the
Province asked to be put before me) constitutes an admission that the Director
breached the Supervised Access Order. The offer is conveyed in a letter from
the Provinces counsel dated April 3, 2013. One of its three terms was that the
Province would provide a written apology to the plaintiffs on behalf of the
Director for failing to follow the Supervised Access Order and the terms of the
order concerning Mr. Colby (which I deal with in section XIII). The letter
stated:
2. The Ministry of
Children and Family Development – Director of Child Protection (Director) will
provide a written apology to the Plaintiffs for not following the December,
2009 Order of Mr. Justice Walker regarding supervised access and the June
2, 2010 Order of Mr. Justice Walker regarding the appointment of Robert
Colby.
[713] The offer
was accepted by the plaintiffs on the same day.
[714] Subsequently,
during trial, the Provinces counsel advised that a mistake had been made in
the offer; the apology was, he said in oral submissions, meant only for the
Court and not to the plaintiffs. No evidence was led to establish that a
mistake (described in submissions as a drafting error) had been made. Even so,
the plaintiffs do not seek to enforce the terms of the offer. Instead, the
plaintiffs characterize it as a further example of the Directors continued disregard
for the plaintiffs notwithstanding the statement expressed by counsel for the
Province that the June 2nd Order was, insofar as Mr. Colby is
concerned, breached by Ms. Feenie and Ms. Pop.
[715] The
Province says that no admission was made in this correspondence that the Supervised
Access Order and the June 2nd Order were breached. I am unable to find that counsels
statement in the correspondence to plaintiffs counsel alone constitutes a
formal admission (as plaintiffs counsel urges me to) that both orders were
breached. It is, however, troubling that in the circumstances, no evidence was
adduced to explain the retraction, and in the circumstances, I am unable to
place any weight on the apology.
[716]
In concluding this section, I find it necessary in view of the
Directors conduct, to repeat the apt comments of Mr. Justice Groves in R.J.M.
that court orders must be followed, as an ongoing reminder to the Director and
her agents that court orders must be obeyed:
[29] There is something
called the rule of law. The rule of law requires, in a free and democratic
society, that all persons abide by the law, whether they like it or not. The
rule of law gives persons options if they feel aggrieved by the decision of the
court, options to appeal, options to reapply. No branch of government with the
resources it has, with the number of employees it has, should be ignoring court
orders. No citizen should disobey court orders. Society breaks down when
anyone, be it a branch of government or an individual, has the arrogance to
believe that they are above the law or above the order of the court.
[Emphasis
added]
XII. THE RESTRAINING ORDER OBTAINED BY THE
DIRECTOR AND J.P.S ARREST
[717] The
plaintiffs claim that certain actions of the Director in response to J.P.s
attempts to keep her children from harm were patently unreasonable and led to
significant harm with respect to both J.P. and the children.
[718] Immediately
following her appearance in this Court on June 2, 2010, J.P. filed an
application with the Vancouver Provincial Court Registry seeking orders permitting
her to withdraw her s. 60 consent and to enforce supervised access for
B.G. She attended with a friend, P.C., at the Ministrys West Broadway office
to serve the application documents. Service did not go smoothly. J.P. was upset
and voices were raised. P.C. took it upon himself to go past the reception desk
and into Mr. Blandfords office. Mr. Blandford was on the phone at
the time and much to Mr. Blandfords consternation due in particular to
the heated environment, P.C. put his hand on Mr. Blandfords shoulder. Mr. Blandford
took it as an assault by P.C. The VPD received urgent calls to attend from both
J.P. and the Ministry. Police officers attended, spoke with J.P. about her
reason for being at the Ministrys office, learned that she was there to serve
court documents, communicated that information to Mr. Blandford, and then escorted
J.P. and P.C. out of the building. No charges were laid.
[719] When J.P.
left, Ms. Pop called J.P.s brothers home, where the children were
living, to warn G.P. and his wife, S.P., that J.P. was involved in an incident
at the Ministrys West Broadway office. Notes of the call contained in the
Ministrys file record that Ms. Pop warned that J.P. and this male
counterpart had attended district office and assaulted an MCFD employee today.
They were advised to call 911 if J.P. showed up at their home.
[720] Mr. Blandford
testified that J.P. did not assault him and did not come into his office with P.C.
However, in two affidavits that he signed after the incident, he deposed to contrary
facts, stating that she had assaulted him. One of the affidavits was used by
the Director to obtain an order from the Provincial Court on June 9, 2010,
restraining J.P. from attending at Ministry offices. The other affidavit was
used by the Director in support of B.G.s second interim custody application heard
in this Court in August 2011.
[721] Mr. Blandford
testified that his affidavits (the Blandford Affidavits) were incorrect. He
did not read them with requisite care, he said, and failed to notice the
mistake.
[722] At no time
before the trial of this action did the Director advise the Provincial Court or
this Court that the Blandford Affidavits evidence were incorrect.
[723] Ms. Feenie
testified that she has always known that J.P. did not assault Mr. Blandford.
She testified that the errors in the Blandford Affidavits are unintentional
syntax errors caused by her drafting. Her evidence was that she always
intended to advise the Court of the errors during the First Trial, when the
Director put in her case, but she was not able to do so because she ceased
acting as the Directors trial counsel before the Director announced her
decision to withdraw from the Apprehension Proceeding.
[724] The plaintiffs
point to this as evidence of Ms. Feenies malice against J.P., and say
that because Ms. Feenie was acting in the course of her duties as agent
for the Director, the Director is liable for Category A misfeasance. The
plaintiffs also point to Ms. Feenies notes that she prepared for hearings
in both courts (where she planned to raise the assault issue) and say they show
that to the contrary, that she understood then that Mr. Blandford was
assaulted by J.P. The plaintiffs submit that Ms. Feenie did not provide
truthful testimony in this trial. Otherwise, they assert, if Ms. Feenie is
being truthful, then she knowingly failed to advise this Court and the
Provincial Court that the Blandford Affidavits contained evidence that was not
true.
[725] I found Ms. Feenies
evidence about the state of her knowledge in July 2010 to lack clarity. Further,
I am satisfied that by August 2011, when she was assisting B.G. on behalf of
the Director with his second custody application, she knew that J.P.s
purported assault on Mr. Blandford was very much in issue because it had
been challenged in an affidavit sworn by J.P. and in submissions made in Court on
her behalf. Ms. Feenie was certainly aware of the dispute at that point
and took no steps to rectify the error in the Blandford Affidavits or to advise
the Court of the mistake.
[726] I am not
persuaded that Ms. Feenie was being deliberately untruthful in her
evidence, nor do I find that she acted maliciously. I do find, however, her explanation
that the error in the Blandford Affidavits arose from a syntax error, her
explanations for her court preparation notes, and her failure to disclose the
errors in the affidavits to have been less than forthright. I also found her attitude
in giving evidence about this issue and much of the rest of her involvement in
the case demonstrated an overly combative approach towards J.P. and illustrated
her over identification with her clients interests.
[727] The
plaintiffs also complain that Ms. Robinson was not truthful in her
testimony about her knowledge of the incident and that this is additional
evidence of misfeasance. Although Ms. Robinson testified that she always
knew that J.P. did not assault Mr. Blandford and never held any other view,
notes of her conversation with the police show otherwise. They record her as
having told the Delta police that J.P. assaulted Mr. Blandford. For quite
a period of time in cross-examination, Ms. Robinson steadfastly stuck to
her initial evidence. Eventually, and then only reluctantly, she admitted she
told the police what is recorded in their notes. I did not find that Ms. Robinson
started out with an intention to provide untruthful evidence on this factual
point. Yet, I was highly troubled by the length to which plaintiffs counsel
had to go to obtain the truth when Ms. Robinson could have readily
conceded that what she told the police was an error. Instead, her obstinacy
reflected what I took to be an attempt to shield herself from criticism.
[728] Once J.P.
left the Ministrys office, she went to her brothers home to serve the
Provincial Court application documents on him. When she got there, she saw B.G.
at the front of the house talking with her brother. She was highly upset at
B.G.s presence at his brothers home. J.P. did not know that the Director had
changed her written expectations of B.G. (which applied to her as well)
prohibiting him from attending at G.P.s house. Having received the call from Ms. Pop
and also having been deliberately provided with provocative and untruthful
information about her purported mental instability from B.G., as well as an
unauthorized copy of Dr. Eiriksons report, G.P. panicked and tried to bar
J.P.s access to the house. A melee ensued and a pepper spray canister that
J.P. had in her purse discharged.
[729]
This incident, referred to by the parties as the Pepper Spray Incident,
was very much in issue in the First Trial. The Director and B.G. raised it as
one of the many bases to deny J.P. custody of her children and for a time, to
deny her access to her children. The findings I made in respect of the incident
and its cause are set out in paras. 66-70 of the Reasons. The essence of
my findings is set out at paras. 67-68:
[67] I will say more about B.G.s unsupervised access
below, but at this point I do wish to set out my findings concerning this
incident that involved the release of pepper spray. I find that the release of
the pepper spray was the unintended result of an unfortunate confrontation
between J.P. and her brother. I am satisfied that G.P. had become unduly
alarmed about his sister after the children had made their disclosures of
sexual abuse because of the conduct of B.G. J.P.s brother was led to believe
that she suffered from paranoia and unpredictable behaviours from misleading
information provided to him by B.G. and as a result of B.G. giving him a copy
of a confidential report from a psychologist, Dr. Eirikson, that was meant
only for the Ministry, J.P., and B.G.
[68] J.P.s highly
distraught and irate telephone calls to G.P., expressing her extreme concern
that B.G. was being permitted unsupervised access to the children contrary to
my December 21 Order, compounded his concern that his sister was behaving
irrationally. G.P.s alarm coupled with J.P.s shock at seeing B.G. at her
brothers home at the childrens bedtime hour, exercising unsupervised access
contrary to the December 21 Order, caused emotions to flare. Shouting ensued,
followed by unfortunate contact between J.P. and her brother; all of which was
aggravated by threats uttered by B.G. to J.P. and a friend she had with her.
During the course of some grappling between J.P. and her brother, pepper spray
was inadvertently released from a small container that was inside her purse.
[730] The
Province placed considerable reliance on the Pepper Spray Incident to justify
the conduct of its social workers thereafter. Despite its earlier agreement not
to re-litigate findings from the First Trial, including those involved in the
Pepper Spray Incident, the Province sought to do so during the trial. The
plaintiffs objections were mostly sustained (see 2013 BCSC 1403), although the
Province was allowed to lead evidence to demonstrate how the Director perceived
or interpreted the incident and to prove that the approach taken by the
Director following the incident was reasonable, appropriate, and did not
attract liability. The Province was also permitted to challenge the veracity
and credibility of the testimony that J.P. gave in her evidence in chief in
this trial about the incident. In the course of doing so, the Province led
evidence from J.P.s brother and sister-in-law about the incident and its
effects on the children.
[731] J.P. was
arrested in respect of the Pepper Spray Incident when she showed up in
Provincial Court before Dhillon P.C.J. on July 9, 2010 for the hearing of her
application to withdraw her s. 60 consent and to require the Director to
provide only supervised access to B.G.
[732] Before I
turn to the arrest and events that followed, I will deal with the immediate
aftermath of the Pepper Spray Incident and also comment on the Provinces
submissions about J.P.s role in it.
[733] G.P., his
family, and the infant plaintiffs moved out of G.P.s home because the pepper
spray permeated the house. There was considerable upset for all. They lived in
temporary accommodation while his house was being cleaned from the effects of
the pepper spray. Meetings took place between social workers and G.P. and his
wife to discuss a plan of action. Concern was expressed for the familys safety
in light of the incident. There were fears that J.P. may re-attend at G.P.s
home. A decision was made to move the children into foster care at a location
that would not be disclosed to J.P. or B.G. That led to the children being
placed with Ms. Castro.
[734] I agree
with the Province that J.P. knew that she was not supposed to attend at her
brothers home in light of a previous direction she had been given by the
Director. I do not agree with the Province that J.P. was the sole cause of the
Pepper Spray Incident and that the Director responded appropriately thereafter.
It is convenient with the benefit of hindsight in a much calmer atmosphere to
say, as the Province does, that J.P. should have used a process server to serve
the application documents on her brother. But faced with the circumstances in
front of her, i.e., having heard this Court tell Ms. Pop the day before
that the Provincial Court Order required the childrens access to be supervised
and Ms. Pops response that the Director was entitled to act in her
discretion, believing that her children would continue to be sexually abused by
their father if his access was unsupervised, and in light of the lack of
support services and the treatment otherwise shown to her by the Director to
that date, it is understandable that J.P., who was self-represented, was not
thinking logically or as an appropriately advised litigant. Her desire was to
protect her children from further sexual abuse. She was also upset at the
results of Dr. Eiriksons critical parental capacity assessment which, she
quite rightly knew to be flawed. J.P. also did not know that B.G. would be at
her brothers home when she planned to attend. I accept her evidence that she
intended to show up at a time in the evening when the children would be in bed,
so they would not see her and would not suffer emotional upset.
[735] I do not
find J.P. was intending to be untruthful about the Pepper Spray Incident when
giving further evidence in this trial. Her brother, G.P., ultimately admitted
that his sister was banged by the front door of the house during the melee. I
found nothing in the evidence of J.P.s brother and her sister-in-law to
undermine the veracity of her account. Instead, in hearing the testimony of
G.P. and his wife, S.P., it struck me that their evidence reflected old and
ongoing petty family squabbles as well as overwhelming feelings of guilt that
they may have caused the children to be apprehended because of G.P.s initial
call to the Ministry in late December 2009. They were both often overtly
dismissive of J.P. as an individual and I also found G.P. to be highly emotive,
distraught, and at times distracted when giving his evidence, which bore
remarkable similarities to J.P.s presentation during parts of her testimony. Although
G.P. was truly distraught that his nephews and nieces were sexually abused by
B.G., I found that S.P. was unable to accept findings of this Court in favour
of J.P. due to S.P.s ongoing anger over the release of pepper spray at her
home and old family disputes. Unfortunately, the Pepper Spray Incident has only
intensified pre-existing and longstanding divisions amongst J.P. and G.P. and
S.P. and certain other members of her family so that now, despite G.P. and
S.P.s stated love for J.P.s children, neither will communicate with J.P. in
order to make arrangements to see the children until J.P. apologizes to them
for the incident.
[736] In
conclusion, I find that the Pepper Spray Incident was the result of a volatile
situation brought about in part by the Directors handling of the case. The
causes of the Pepper Spray Incident were:
(a) the
Directors failure to heed the Supervised Access Order and to abide by (what
she clearly understood on June 2, 2010) was my requirement that B.G.s access
be supervised;
(b) the
Directors treatment of J.P. to that date;
(c) J.P.s
violation of her agreement with the Director;
(d) B.G.s
deliberate provision of false information to G.P. about J.P. and his deliberate
unauthorized disclosure of Dr. Eiriksons report to G.P. despite his clear
understanding that it was to be treated as confidential between the Director,
himself, and J.P.;
(e) Dr. Eiriksons
flawed report which was due in part to the misleading contents of and omissions
in the Directors file;
(f) the
rising tensions of B.G. by swearing at and threatening to assault P.C. who was
with J.P. at the time; and
(g) an
already emotive G.P. who responded with alarm at seeing his sister and B.G.
both at his home, especially following the warning call from Ms. Pop, and
then panicked and tried to force the front door closed on his sister as she
tried to serve the Provincial Court application documents.
[737] I find the
differing accounts of the incident provided by J.P., G.P., and S.P. to be the
result of their own perspectives of a highly tense melee that involved a physical
altercation and the discharge of pepper spray. Unlike B.G. (whose evidence I
rejected as not credible at para. 69 of the Reasons), I do not find that
J.P, her brother, and her sister-in-law intended to provide a false account of
the event in their testimony.
[738] Social
workers new to the case, such as Ms. Pop, were alarmed. Mr. Strickland
attended at least one of the briefing meetings following the Pepper Spray
Incident, but did not disclose his call to Sergeant Pollard or the other egregious
aspects of his involvement in the case. There was a rush to judgment amongst the
social workers and G.P. and his wife about J.P.s purpose in attending. They
assumed, unreasonably, that J.P. intended to abduct her children even though
they were aware of the application documents that J.P. had left at the scene.
[739] The
abduction proposition was put to and denied by J.P. in cross-examination by the
Province even though it tendered no evidence to support it and even though,
with the exception of Mr. Blandford, witnesses called on behalf of the
Province testified that they did not know why J.P. was at her brothers home. Mr. Blandford
testified that at the time, he knew the reason why J.P. was at the Ministrys
office but, he testified, he wasnt in a very benign state of mind towards
her due to the incident at his office. Some social workers focused on anti-Ministry
propaganda J.P. left at her brothers home and did not consider the reason for
the Provincial Court application documents that were found on the ground and
handed over to the Director and Ms. Feenie by S.P. No one bothered to ask J.P.,
let alone consider why she brought those documents to G.P.s home even though
the Director knew from Ms. Pop that J.P. had been told by this Court the
day before to file them in Provincial Court.
[740] That the
Director had possession of the Provincial Court application documents left by
J.P. at her brothers home was not disclosed by the Director in the First
Trial. Production of Ms. Feenies note showing that she had those
documents in hand shortly after the Pepper Spray Incident was also delayed in
this case as well.
[741] When J.P.
showed up for the Provincial Court hearing on June 9 to argue her application
in respect of Judge Davis order, she was arrested and removed from the
courtroom. Her arrest was on account of the Pepper Spray Incident. Judge
Dhillon then heard the Directors application for a restraining order, effectively
ex parte.
[742] The
Director had previously arranged with the sheriffs and police to have J.P. arrested
when she showed up for court for the hearing of the applications she had
previously filed on June 2. Judge Dhillon was not told about the application
documents left by J.P. at her brothers home and at the Ministrys West
Broadway office. Mr. Blandfords knowledge of J.P.s purpose was also not
disclosed to the court. Thus, the impression created by the Director before Judge
Dhillon was that J.P. assaulted a senior social worker, attempted to abduct her
children from her brothers home causing emotional upset and dislocation to
all, and that she posed a risk of harm to her children.
[743]
At the outset of her reasons for judgment, Judge Dhillon commented on Mr. Blandfords
(first) affidavit, and from her remarks, it is clear that she relied on the
veracity of the information provided in Mr. Blandfords affidavit about
the incident at the Ministrys West Broadway office:
[1] THE COURT: I have before me the affidavit of
Bruce Blandford which was sworn June 9, 2010, and in this affidavit Mr. Blandford
sets out the brief history of the manner of the Ministrys involvement in respect
of this parent and the children.
[3] There is also before me evidence in the affidvait
as to [J.P.] attending at the Ministry offices in a highly agitated state very
recently and that she and her companion refused to leave the Ministry office
despite requests to do so, and Vancouver Police were required to attend, and
they were escorted from the property.
[4] It is quite clear that
[J.P.] has a significant animus towards the Ministry personnel and staff
.
[744]
It is also clear that none of the evidence available to the Director and
known to Mr. Blandford about the purpose of J.P.s attendance at the Ministrys
office and at her brothers home was put before Judge Dhillon, even though it
was an ex parte application where accurate and fulsome context is required.
[745] In
addition to granting the restraining order, Judge Dhillon issued a police
protection clause as well.
[746]
The Province submits that the doctrine of absolute immunity protects
from liability the conduct of the Director and Ms. Feenie, whom the
Province admits acted as the Directors agent throughout, in respect of the
errors in the Blandford Affidavits and any inaccurate submissions made in this
Court and Provincial Court. The Province acknowledges the responsibility of
counsel to ensure that affidavits are accurate and truthful. The Province
submits, however, that absolute immunity shields the Directors conduct and
statements made in the courtroom, including reliance on the incorrect evidence
in the Blandford Affidavits. According to the Province, no cause of action
arises from the use of those affidavits in court. The Provinces overarching
submission is:
The creation and use of an affidavit in court, including in
a child protection proceeding, is protected by absolute immunity. This means
that allegations of misrepresentations in court, in the form of counsels
statements or false affidavits commissioned by her do not rise to a cause of
action.
In appropriate circumstances,
inaccuracies in an affidavit can be remedied through an award of costs and, in
exceptional cases, with an award of special costs against a solicitor,
personally.
[747] The
plaintiffs disagree with the Provinces characterization of the nature and
scope of the doctrine, and say further that its application is defeated by
malice in this case.
[748] It is not
necessary for me to decide the application of the doctrine – and whether it
extends to knowingly or recklessly making untrue statements to the court or
allowing the court to consider false evidence – for this part of the plaintiffs
claim because I have not determined that the conduct of the Director and Ms. Feenie
constitutes misfeasance, breach of fiduciary duty, or breach of the standard of
care. In other words, even if it were possible in law for a cause of action to
arise, I do not find that it does on the facts.
[749] I am of
the opinion, however, that it is a matter that should be dealt with in costs
because, based on the findings I have set out in this section, the Directors continued
reliance on the Blandford Affidavits, her failure to rectify the errors they
contained, and her failure to bring to Judge Dhillons attention and this
Courts attention the Directors and Mr. Blandfords knowledge of J.P.s
purpose in attending at the Ministrys office and G.P.s home, prejudiced J.P.
in the Apprehension Proceeding.
[750] I reject the
Provinces submission that the Pepper Spray Incident delayed the hearing of the
Directors application for an extension of the temporary custody order. The
hearing of the application, as well as the hearing of J.P.s application to
withdraw her consent and to force supervised access, was adjourned because the
Director coordinated with law enforcement authorities to have J.P. arrested
when she showed up in Provincial Court on June 9. J.P. was held in custody
overnight and then released on bail the next day. The Directors request for an
order requiring J.P. to undergo a mental assessment was rejected as having no
merit.
[751] Even though
her role ended in February 2010, Detective Rowley remained personally engaged
to track the ongoing developments in the case. When she learned of the Pepper
Spray Incident, she involved herself in the arrest, even though it had nothing
to do with her duties at the VPD. She took it upon herself to contact Crown
counsel to provide a negative report about J.P. and lobbied in support of the
Directors request to the Provincial Court for a mental assessment. I find this
to be further evidence of the depth of Detective Rowleys dislike of J.P. that
clouded her judgment throughout her involvement in the sexual abuse
investigation.
[752] J.P. was
further distracted that summer dealing with law enforcement authorities because
she was arrested again as a result of an intentionally false report given to
the VPD by B.G. that she was breaching her bail terms by attending at his
residence. Following their separation, J.P. lived at their matrimonial property
that was registered in B.G.s name. He resided elsewhere. B.G. not only caused
J.P. to be falsely arrested, he planned for the arrest so that he could be
present to take photographs to advance his position in the family law action
and the Apprehension Proceeding. Further details concerning the arrest
including B.G.s admission of his plan are found at paras. 62-64 of the
Reasons.
[753] In
conclusion, the Director relied on inaccurate evidence to obtain a restraining
order against J.P. and to support B.G.s second custody application. The
Director failed to take appropriate steps to rectify the error when she became
aware of it. The inaccurate evidence was the result of Mr. Blandfords inadequate
review of the contents of his affidavits before he swore to the truth of their
contents. Tensions increased between J.P. and the Director because of the
Pepper Spray Incident, for which there were multiple causes including the
Directors delicts and J.P.s failure to abide by the Directors
direction not to attend at her brothers home. Mr. Blandford did not
disclose his knowledge of J.P.s purpose for attending at the Ministrys office
and at her brothers home. The Director assumed the worst about J.P.s conduct
without conducting any enquiry of her purpose. Judge Dhillon was not provided
with a full, let alone complete account of the facts, during the Directors
application for a restraining order. J.P. suffered harm in the Apprehension
Proceeding as a result of the Directors conduct. Production of certain documents
favourable to J.P. did not occur until late in this action.
XIII. INTERFERENCE
WITH THE ASSESSMENT OF MR. COLBY
[754] The
plaintiffs claim that the Director improperly interfered with the assessment of
psychologist, Robert Colby, who I appointed to conduct an assessment of
specific issues pursuant to s. 15 of the FRA on June 2, 2010 (June
2 Order). The plaintiffs claim is grounded in negligence, breach of fiduciary
duty, and misfeasance. The Province concedes that the conduct of the Directors
agents (for whom she is liable) was inappropriate and deserves an award of
special costs, but otherwise maintains that it does not sound in tort and is
protected by the doctrine of absolute immunity. I have determined that the claim
in negligence is made out and that the conduct is also deserving of an award of
special costs.
[755]
At the hearing of B.G.s first interim custody application on June 2,
2010, I appointed psychologist, Robert Colby, as the Courts expert pursuant to
s. 15 of the FRA due to the ongoing significant and competing
allegations advanced by both parents concerning sexual abuse and mental
incompetence. I did not regard Dr. Eiriksons parental capacity report to
provide the necessary assistance to determine the issues in the family law
action. In making the appointment, I expressed my concerns about Dr. Eiriksons
report and the Directors failure to keep me advised of the progress of the
Apprehension Proceeding. During the hearing, at which Ms. Pop attended, I
made the following remarks in the context of my decision to appoint Mr. Colby:
[My] decision is to order a s. 15 report, complete
report
I dont think the parties themselves are able to provide the
appropriate instructions and retainer advice to the expert.
I have some
concerns about the fact that [Dr. Eiriksons] report fails to address a
parental plan.
It fails to address access, and it fails to address some of
the evidence thats raised to Dr. Eirikson concerning the allegations of
sexual abuse, and because of that and some other – – some of the other things
that have been drawn to my attention this morning, Im of the view that this
court requires an independent s. 15 report to look at a whole number of
issues.
The Ministrys involvement in the
case has come later in the day. This is an action brought under the Divorce
Act with usual corollary relief and it was only during the midst of this
case, during an application by one of the parties, that the Ministry became
involved and apprehended the children.
I have been
assured throughout that the Ministrys involvement is to be on an interim basis
and not permanent basis. I have not been kept advised of the progress of
certain matters, much to my concern, and at this point what I want is a – – is
to be satisfied that the best interests of the children would be looked after,
and whatever custodial guardianship arrangements are ordered, as well as any
access visits, and the report prepared by Dr. Eirikson, in my view, does
not address all of those.
[Emphasis
added]
[756] Both
parents were self-represented at that time. Neither was capable of providing an
appropriate retainer letter to Mr. Colby. As a result, and after duty
counsel appeared in Court to assist, I directed Mr. Colby to address the
following issues: (a) the sexual abuse allegations; (b) parental capacity of both
parents; (c) place of residence of the children; (d) custody; (e) access; and (f)
parental alienation.
[757] I set up
his appointment in a manner that was designed to avoid external influence. For
example, I ordered that Mr. Colby be provided with a copy of the
Ministrys entire file, except for the text portion of Dr. Eiriksons
report and any documents the Director deemed privileged or of such confidential
nature that production would prejudice the interests of the children or the Director
(in which case those documents would be listed and the list would be provided
to Mr. Colby so that he could consider whether he required production of
any of those documents).
[758] I also ordered
Mr. Colby to interview both parents but left the decision to interview the
children to his sole discretion. I also ordered that Mr. Colby was not to
take instruction from either party or the Director (the order referred to the Ministry).
[759]
I rejected B.G.s request (supported by Ms. Pop on behalf of the
Director) that Mr. Colby be directed to refrain from interviewing the
children. I also addressed what I was told were the Directors concerns about
further interviews of the children. In my ruling, I told J.P., B.G., and Ms. Pop:
The expert is to interview the
father and mother, [J.P.] and [B.G.], and to carry out such other interviews as
the expert may deem or determine appropriate.
…
The expert is not to take
instructions from any o[f] the parties nor from the Ministry. The expert is
at liberty to apply for directions to this court. The parties are at liberty to
apply for directions to this court, as is the Ministry.
Both parties are to cooperate
with the expert, and [all] requests for interviews and access of — for
information, as well as so is the Ministry for interviews, access for
information and access to the children for the purpose of interviews.
When the experts report is complete, it shall be
provided to the court and the parties and the Ministry simultaneously. There
should be no advance review and vetting by any of the parties or the Ministry.
[Emphasis
added]
[760]
I left it open for the Director to apply for directions in the event
that she became aware of evidence that caused her concern for those interviews.
Paragraphs 9, 10, and 12 of the June 2, 2010 Order provide:
9. If
evidence comes into the hands of the Ministry that raises issues of concern for
any interviews of the Children that Dr. [sic] Colby may wish to conduct,
the Ministry may apply to the Court for directions upon proper notice to the
parties and Dr. Colby;
10. Dr. Colby
is not to take instructions from any of the parties or the Ministry;
12. Both parties and the Ministry
are to cooperate with Dr. Colby as to requests for interviews, access to information,
and access to the Children.
[Emphasis
added]
[761] Ms. Pop
made Ms. Feenie aware of the essential terms of my order immediately
following the conclusion of the hearing. Ms. Feenie was also provided with
a copy of the entered Order by B.G. on June 15, 2010.
[762] In the
Reasons, I found that Mr. Colbys assessment was impeded in part by the
conduct of the Director. I found that his assessment was adversely affected for
two reasons: (a) the significant amount of unsupervised access B.G. had to his
children before Mr. Colby conducted his interviews of the older children;
and (b) inappropriate communications to Mr. Colby from the Director. As a
result, I concluded, at para. 368, that Mr. Colby looked at the
facts through a distorted lens.
[763] The
Director allowed B.G. to have significant amounts of unsupervised access to the
children during the period leading up to Mr. Colbys interviews with them.
Despite the remarks that I made to Ms. Pop on June 2, 2010, the Director
continued to allow him to have unsupervised access that increased over time. B.G.
enjoyed overnight visits, weekend visits, and vacations lasting up to slightly
over two weeks that adversely impacted on Mr. Colbys assessment.
[764] My
findings concerning the adverse effect of unsupervised access are set out at paras. 352-379
of the Reasons. To summarize, B.G.s access increased over time, to permit him
access to his children for overnight visits, weekend visits, and vacations
lasting up to slightly over two weeks. I found that BT.G., K.G., and BN.G. spent
a considerable amount of time with their father prior to and following each
interview. There was no supervision. Between the first and second interviews,
B.G. had at least five unsupervised access visits with the children (totalling
at least 21 hours). B.G. also drove all four children to their second interview
with Mr. Colby on August 26. The children had an overnight visit with
their father on August 28, which was prior to their third interview on
September 2. The children were with B.G. on overnight unsupervised access
visits thereafter (usually every Saturday) until August 16, 2011. I accept
Mr. Colbys evidence (also imported into this trial) that the night before
her second visit with him, K.G. had been up the entire night unable to sleep,
stayed in bed, and did not tell anyone except Mr. Colby. I also accept his
evidence that this suggested that K.G. was stressed about seeing him. I am
satisfied that placing her in the custody of the abuser before she was to meet
with the assessor caused that stress. J.P. had no access to her children from
May 20 until August 31, 2010. All access visits thereafter have been
supervised. Her visits with the children are the subject of supervised access
reports. Unlike B.G., it was not possible for J.P. to influence her children
while they were being interviewed by Mr. Colby without detection.
[765] It is no
excuse for the Province to say now that the Director did not know that B.G. was
going to drive the children to meet with Mr. Colby. The Director knew that
the children could be with their father because there was no effort made to
ensure that he would not have unsupervised access to the children before their
meetings with Mr. Colby. The Director failed to consider the effect of her
decision to allow B.G. to have unsupervised access, especially in close
proximity to the interviews, on the s. 15 assessment process.
[766] I also reject
the defence that the Director and Ms. Feenie lacked an appropriate
understanding of the s. 15 process given their general involvement with
apprehension cases before the Provincial Court. That does not obviate the need
for them to understand the process set out in the June 2, 2010 Order that bound
the Director. It is important to understand that the lawyer acting for J.P. after
the order was made not only objected to B.G.s unsupervised access generally but
also wrote to Ms. Feenie, Lejko, Mr. Blandford, and Ms. Pop on
August 23, 2010 advising them that B.G.s access to the children could have a
serious impact of the sec 15 report.
[767] Mr. Colbys
investigation was also adversely affected because he was provided with adverse
information about J.P. from the Director that, at para. 357 of the Reasons,
I found impacted the approach he took to the investigation, including his views
of J.P. and the veracity of her account. I found that this information caused
him to be uncertain about J.P.s reporting and the statements provided to him
about sexual abuse by the three older children.
[768] The
Director did not want Mr. Colby to interview the children. Despite the
terms of the June 2, 2010 Order, the Directors views were inappropriately
communicated to Mr. Colby at the outset of his appointment. So was her
view that J.P. could harm her children.
[769]
Ms. Pop and Ms. Feenie (whose conduct was approved of by the
Director) took it upon themselves, without first seeking directions from this
Court, to contact Mr. Colby to express their concerns about any interviews
of the children. In the Reasons, I found, at paras. 359-361, that late production
of email communications between B.G. and Ms. Feenie in the First Trial,
disclosed after Mr. Colby gave evidence, revealed that at the outset of Mr. Colbys
investigation and prior to his interviews of the two older children, Ms. Pop
and Ms. Feenie communicated the Directors concerns about interviewing the
children to Mr. Colby. Email communications between B.G. and Ms. Feenie
on June 23, 2010 show that she assured B.G. that his concerns for further
interviews were not only shared by the Director but had also been communicated
to Mr. Colby:
[B.G.]
The Director does have some concerns about further
interviewing the children. However, after speaking with Robert Colby, I am
satisfied that he is well aware of that concern and, in fact, shares it. He
confirmed he make [sic] his decision as to whether further interviewing is
warranted after reviewing the materials provided to him. He expressed
considerable reservations at the notion of doing further interviewing about the
sexual abuse allegations given the conclusions reached by the police and
Ministry in relation to their investigations.
[Emphasis
added]
[770]
I also found at paras. 362-366 of the Reasons that Mr. Colby
was made aware of the Directors concerns that J.P. could cause physical harm
to her children:
[362] It is clear from another email communication,
produced after Mr. Colby testified, that Mr. Colby was made aware of
the conclusions reached by the Ministry that J.P. posed a danger to her
children even in supervised access settings. Mr. Colby was copied on a
series of email communications dated August 19, 2010 between J.P.s prior
counsel and counsel for the Director.
[363] The first email that was copied to Mr. Colby
was sent by counsel for the Director. It stated:
I discussed this matter with my
client this morning and confirm the following:
1. Social Worker [X.P.]
will contact Robert Colby to confirm his opinion that [J.P.] should have a
supervised visit with the children and a further session where he is able to
observe [J.P.] with the children for the purpose of completing his assessment.
[X.P.] will elicit any further input he may have around ensuring the safety and
well-being of the children during such contact and confirm where he would
propose the observation visit to occur. Assuming [X.P.] is satisfied that such
contact can occur without unnecessarily jeopardizing the children, the Director
will agree to produce the children for a supervised visit at Tin Harbour, the
agency you proposed, contingent on your clients agreement to comply fully with
all visit guidelines imposed by the agency and the Director.
[364] In response (copied to Mr. Colby), J.P.s
counsel asked [Ms. Feenie] for the basis of the Directors concern for the
safety of the children:
I am curious as to what danger you
think the children will be in during a supervised access visit?
[365] Counsel for the Director [Ms. Feenie] wrote in
reply:
Robert Colbys letter is very brief
and does not state how or why he believes the contact should occur. As you
know, it is the Director who is responsible for the safety and well-being of
the children, not Robert Colby.
…
As for the danger your client
could pose during a supervised access visit, I confirm that I was counsel on a
Ministry case a few years ago where the mother, in the presence of an
access supervisor slit her childs throat, nearly ending that childs
life. So please, dont get me started on the potential risk to these
children. As for when a decision will be made, that will happen once we are
satisfied that the visit can safely happen and satisfied that your client will
abide by all guidelines around such a visit.
Mr. Colby was copied on this response as well.
[366] I am satisfied from Mr. Colbys evidence and
Ministry documents produced by the Director that he was also advised during
oral communications with the Ministry about the pepper spray incident in a
manner that was adverse to J.P.s character and credibility, about safety
concerns she might cause for the children, and that she suffered from mental
instability.
[Emphasis
added]
[771] Ms. Pop
also communicated to Mr. Colby her concerns for further interviews and for
J.P.s access to her children. She provided him with her account of the incident
at the Ministrys West Broadway office on June 2, 2010 and the Pepper Spray Incident
the following day.
[772] Additional
documents produced in this action provide further insight into the substance of
Ms. Feenies communications with Mr. Colby about interviews of the
children and the purported dangers J.P. posed to the children. I review some of
them in the paragraphs that follow.
[773]
On June 15, 2010, Ms. Feenie wrote to Mr. Colby, introducing
herself as legal counsel acting for the Director. In her correspondence, she
told him that the Director had significant safety concerns for the children
following an incident that occurred on June 3rd. She then advised Mr. Colby
that she wished to speak with him about various matters including interviews of
the children:
I would like the opportunity to
briefly discuss the recent events (including criminal charges that have been
laid) and any difficulties you might perceive arising therefrom in completing
your assessment. As well, we need to discuss the provision of Ministry
file materials to you, interviewing of the children and other similar
issues in relation to the s. 15 process.
[Emphasis
added]
[774]
Ms. Feenie reported on her conversation with Mr. Colby in her
email to Ms. Pop, Ms. Lejko, and Mr. Blandford sent on June 21,
2010. In it, she conveyed to them Mr. Colbys advice that if there had
been a thorough investigation by the police and the Director into the sexual
abuse allegations, then it was a closed issue that would not be revisited:
I just got off the phone with Robert Colby who was calling
from Europe.
He will be back in town on Wednesday and will start the
assessment shortly thereafter.
I filled him in on recent events and he will be in contact
with you to discuss how those events impact on his seeing of the children with
[J.P.].
I also advised him of the Directors concerns re
re-interviewing the children in relation to the sexual abuse allegations and he
immediately said he thought that was a very valid issue and if there has been a
thorough investigation of that by the police and Ministry, he sees that as a
closed issue and not to be revisited.
Obviously, hell review what we
have in that regard before making a final decision on the necessity of
reinterviewing.
[Emphasis
added]
[775]
Her notes of their discussion demonstrate that despite the provision of
the June 2, 2010 Order and the reasons that I gave when issuing it, Ms. Feenie
needed to be assured that Mr. Colby saw the problem the way she did:
– he hears & understands and shares concerns re
repeated i/ving
– if thorough [investigation] & [interviews] by police
& others, may not need to
– but he will make that decision after reviewing situation,
docs etc.
– Im comfortable with that
[Emphasis
added]
[776] From the
testimony of Ms. Pop and Ms. Feenie as well as her notes and
communications, I am satisfied that the Director sought to circumvent what she
perceived to be the constraints of the June 2, 2010 Order through direct
communications with Mr. Colby.
[777] Ms. Feenies
communications with Mr. Colby were made with the knowledge and approval of
the Director. In her testimony, Ms. Feenie explained her actions on a
number of bases:
(a) she
was not instructing Mr. Colby;
(b) she
sought to protect the children from harm from J.P.; and
(c) she
sought to avoid any adverse effect on the children from repeated interviews.
Ms. Feenie did not, she explained, see her concerns
and communications with Mr. Colby as something that needed to be resolved
by a court application.
[778] I find Ms. Feenies
justification for her conduct to be without merit. She allowed the Directors
views to prevail over the clear words and intent of the order. Taken on its
best footing, her attempt to excuse her communication with Mr. Colby on
the basis that she was not instructing him was naïve. Ms. Pop likewise has
no reasonable excuse for her conduct.
[779] Accordingly,
through the conduct of Ms. Feenie and Ms. Pop, the Director acted in
breach of the June 2, 2010 Order. The Directors decision to engage in communications
with Mr. Colby was intentional. The intention was to dissuade Mr. Colby
from interviewing the children and to communicate her adverse views of J.P.
[780] I disagree
with the Provinces submission that there was no intention to circumvent the
terms of the June 2, 2010 Order. The Director knew from the terms of that order
that she could return to Court for directions. It is no defence to say, as the
Province did at one point in argument, that the Pepper Spray Incident and other
events that unfolded after the June 2, 2010 Order was issued diverted the
Directors attention from her obligations under that order or that the Director
was justified in communicating with Mr. Colby directly because she was
concerned for the childrens safety in the presence of J.P. Paragraph 9 of the
June 2, 2010 Order contemplated those very circumstances and the Director knew
it.
[781] The
Director did not make any attempt to return to the Court for directions in
light of the events that occurred after the order was made. The Director was
unhappy that Mr. Colby was permitted to interview the children and she
acted to try to prevent it in a manner that I find to have been calculated. It
was only when the Director felt satisfied that Mr. Colby would take her
concerns into account that she agreed to facilitate his assessment by allowing
J.P. access to her children, and then only if J.P. paid for it.
[782] The
Province argues that no liability for damages can flow from the Directors
communications with Mr. Colby because they are protected by absolute
immunity.
[783]
The doctrine of absolute immunity is often thought to apply to protect
lawyers and witnesses from being sued for statements they make in court. In Royal
Aquarium and Summer and Winter Garden Society, Limited. v. Parkinson,
[1892] 1 Q.B. 431 (C.A.) at 451, the doctrine was described in this way:
The
authorities establish beyond all question this: that neither party, witness,
counsel, jury, nor judge, can be put to answer civilly or criminally for words
spoken in office; that no action of libel or slander lies, whether against
judges, counsel, witnesses, or parties, for words written or spoken in the
course of any proceeding before any Court recognised by law, and this though
the words written or spoken were written or spoken maliciously wihtout any justification
or excuse, and from personal ill-will and anger against the person defamed.
This absolute privilege has been conceded on the grounds of public policy to
insure freedom of speech where it is essential that freedom of speech should
exist, and with the knowledge that Courts of justice are presided over by those
who from their high character are not likely to abuse the privilege, and who
have the power and ought to have the will to check any abuse of it by those who
appear before them.
[784] The same
approach was taken in Samuel Manu-Tech Inc. v. Redipac Recycling Corp.,
[2000] 124 O.A.C. 125 and Amato v. Welsh, 2013 ONCA 258. The doctrine
was extended in Geyer v. Merritt, [1980] 16 B.C.L.R. 27 (S.C. Chambers)
to a lawyer who was not only accused to have sworn false affidavits, but making
false statements in the writ of summons and statement of claim. Although no
cause of action arose, the proceeding was dismissed, with costs, as an abuse of
process because the false statements were found to constitute harassment of the
defendants. In Harrison v. British Columbia (Ministry of Attorney General),
2014 BCSC 398, a lawyer was protected by absolute privilege in respect of
submissions made to the Court of Appeal.
[785] Lawyers
must be free from fear that in advocating their clients cause they will be
sued if what they say on behalf of a client is not to be true: Hamouth v.
Edwards & Angell, 2005 BCCA 172 at para. 37. See also Admassu
v. Macri, 2010 ONCA 99 and Wilson v. Williams, 2013 BCCA 471. In Wilson
and in Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, the
doctrine was described as being for the benefit of the public and necessary to
protect the proper functioning of the administration of justice.
[786] Consequently,
although absolute immunity is not designed to protect someone who provides
false information, it is so broad in its scope that it may do so (see, e.g., Elliott
at para. 117).
[787] In Nelles
v. Ontario, [1989] 2 S.C.R. 170 at 199, Lamer J. said that absolute
immunity does not apply to claims for malicious prosecution because malice
should not limit the rights of individual citizens to seek a remedy. In making
that statement, he distinguished between the exercise of discretion, errors in
judgment, and negligence, on the one hand, and motive that involves improper
purpose that involves an abuse or perversion of the system of criminal justice
for ends that it was not designed to serve
.
[788] Apart from
malicious prosecution, does the immunity extend beyond the words spoken in
court and for documents such as affidavits and pleadings used for court
proceedings? I have not been taken to any case where the doctrine protects a
lawyer or party who acts in breach of a court order, which is what occurred in
this case. Further, in my opinion, the doctrine, centred on the notion of
freedom of speech, should not be extended to protect persons who breach court
orders. In the circumstances, the Province has not established that absolute
immunity applies to the conduct of Ms. Feenie and Ms. Pop, whose
conduct was in breach of the June 2nd Order.
[789] The
Provinces position in closing argument vacillated between justifying Ms. Feenies
and Ms. Pops contact with Mr. Colby and conceding that they acted in
breach of the June 2, 2010 Order (at one point, the Province agreed that Ms. Feenie
and Ms. Pop acted in breach of paras. 9 and 10 of the June 2, 2010
Order). Later, the Province appeared to resile from that position, suggesting
that the order was permissive and only directed at Mr. Colby. Ultimately,
the Province conceded, over the objection of counsel appearing for Ms. Feenie,
that the conduct was inappropriate and deserving of rebuke with an order of
special costs. I agree.
[790] Ms. Feenies
and Ms. Pops communications with Mr. Colby adversely impacted the
s. 15 investigation. Their communications with him also adversely impacted
the course of the family law action and the Apprehension Proceeding, as did the
Directors failure to disclose those communications in the Apprehension
Proceeding.
[791] Mr. Colby
decided to interview the two older children. Before he did that, he told the
Director that he wished to observe J.P. interacting with all of her children. Even
though clause 12 of the June 2, 2010 order required the Director to cooperate
with Mr. Colbys request for interviews, the Director did not readily
cooperate nor did she return to Court to seek directions. Instead, the Director
not only voiced her concerns to Mr. Colby that the children could be
harmed if J.P.s access was allowed, she told Mr. Colby that no suitable
location could be found to accommodate his request. It was only through J.P.s
efforts that a suitable location was secured. She found that Mr. Colbys request
could be accommodated at a facility known as Tin Harbour (located in Surrey).
The Director ultimately agreed to the location but only on the basis that J.P.
had to pay for it. The Director also took the unilateral position on August 18,
2011, in the midst of Mr. Colbys investigation, that all of J.P.s access
visits with her children to facilitate Mr. Colbys assessment were to be
at J.P.s cost.
[792]
I also found, at para. 367 of my Reasons, that the Ministry did not
provide copies of all of the documents in its file to Mr. Colby despite my
order. For example, he was not made aware of the sexualized and aggressive
behaviours described in supervised access reports prepared following August 31,
2010 until he testified at trial. His approach and conclusions shifted during
his testimony after he was shown the videotapes of the VPD interviews of the
children (which provided an accurate account of what occurred) and a sampling
of some of those supervised access reports and a complete copy of the blotters.
At para. 375, I described my finding that he appeared to be grappling
with the additional information he had just been provided with while in the
witness box. There was a striking moment in the First Trial when Mr. Colby
struggled to reconcile the views and opinions that he had expressed in his
reports with the information from the Ministrys file that he was looking at
for the first time:
[367] Apart from the concerns I have expressed, it is, in
my view, also important to note that Mr. Colby was not aware of the
sexualized and aggressive behaviours described in supervised access reports
prepared following August 31, 2010 until he testified at trial. It does not
appear that Mr. Colby was provided with a complete copy of the blotters;
only a portion of them were contained on a disk provided by the Ministry. It
appeared to me that when Mr. Colby was giving evidence about the blotters,
he was surprised at their scale. Finally, it is unclear whether Mr. Colby
was aware of the Childrens Hospital records concerning K.G.s anal fissures
(even though they were contained in the Ministry files by the end of March
2010) when he prepared either or both of his reports.
[375] In fairness to Mr. Colby, his approach and conclusions
shifted during his testimony after he was shown the videotapes of the VPDs
interviews of the two older children and a sampling of some of the supervised
access reports illustrating sexualized and aggressive behaviour and after he
was provided with additional information, including the blotters. It was clear
to me that he was grappling to rationalize the new evidence he was being shown
with information previously provided to him concerning J.P. and B.G.
[376] Mr. Colby remained
of the opinion throughout his testimony, however, that there is no evidence to
suggest that J.P. fabricated the disclosures and coached the children to make
their statements. He could not find any indication of fabrication or coaching.
[793] Ultimately,
Mr. Colby opined in his viva voce evidence, that if the Court found
that sexual abuse had occurred, then J.P.s conduct and behaviour was justified
as the appropriate conduct of a mother trying to protect her children when
under a great deal of stress having been confronted with the knowledge that her
children had been sexually abused.
[794] I
determined in my Reasons at para. 378 that the independence and integrity
of the s. 15 investigation was impeded. I found that Mr. Colbys earlier
perception of the frantic and dramatic presentation that J.P. often displayed
during their dealings, his view of the reliability of the information that she
provided to him, and his overall assessment in his written reports, had been
adversely affected by the Directors conduct.
[795] Does the
conduct of the Director and her agents also give rise to a cause of action?
[796] I have
determined that misfeasance has not been proven. Category A misfeasance is not
made out because I do not find that Ms. Pop and Ms. Feenie were
acting maliciously in their communications with Mr. Colby. Nor do I find
that they intended to cause harm to J.P. or the children, so that even though I
am of the view that the Directors conduct was reckless, the test for Category
B misfeasance is not met. I also do not agree with the plaintiffs submissions
that in communicating with Mr. Colby, the Director specifically intended
to vilify J.P. ahead of the interests of the children and is liable for
breach of fiduciary duty.
[797] I do agree
that the plaintiffs have proven a claim in negligence. I have determined that
the conduct of the Director and her agents ranged from negligent to reckless in
complying with the June 2, 2010 Order. The Province concedes that it is outside
the Directors jurisdiction to disregard court orders directed towards her. Here,
the Director preferred her own views about further interviews of the children
and made a deliberate decision to communicate with Mr. Colby in order to
limit his investigation and to circumvent the terms of the June 2, 2010 Order, as
opposed to applying for further directions. As well, the Director failed to
cooperate with Mr. Colby, as required by the terms of the order, and instead
of returning to this Court for directions, the Director unilaterally rejected
his request to meet with J.P. and the children together (as part of his
investigation process) on the basis that she was a danger to her children. The
Director also failed to abide by the terms of the order regarding document
production.
[798] I reject the
Provinces ultimate submission that the Directors breach of the June 2, 2010
Order did not cause any loss because Mr. Colby ignored the Directors
concerns and interviewed two of the children. The Directors conduct adversely
and unfairly tainted Mr. Colbys investigation and affected the opinions
that he expressed in his first report. The Director relied on many of those
opinions to support her position that the children should not be released from
foster care and returned to their mother. The Directors reliance on that
report is one of many reasons that caused the children to remain in foster care
for an inappropriate period. What damages flow from the conduct beyond nominal,
if any, is not an issue falling within the ambit of this trial.
[799] Lastly, during
argument, the Province pointed to efforts made by J.P. or on her behalf to
communicate with Mr. Colby in an attempt to either excuse the Directors
communications with him or to limit their impact on his investigation. The
Province did not, however, call any evidence to prove that J.P.s conduct
impeded his investigation, and its submission remains an unproven allegation.
As well, the Directors misconduct cannot be excused by J.P.s conduct.
XIV. CARE
FOR THE CHILDREN WHILE IN THE DIRECTORS CARE
A. Prior
to the Directors Decision to Withdraw from the Apprehension Proceeding
[800] The
plaintiffs advance several claims in respect of the care of the children while
they were in the Directors care. Specifically, they allege that the Director
ignored requests from J.P. and other family members for counselling services
for the children, and also delayed following similar recommendations from
experts. They further allege that the Director failed to properly address
complaints about the children coming from their schools and in supervised
access worker reports, and a report that Ms. Castro was using corporal
punishment. Finally, they challenge the Directors decision not to let the
children participate in extra-curricular activities even though J.P. offered to
pay for them. The plaintiffs claims are grounded in negligence, breach of
fiduciary duty, and misfeasance.
[801] The
Province submits that the Director acted appropriately, ensured that
counselling was provided, and went so far as to obtain an opinion from a
medical specialist about the childrens counselling needs, and accordingly, met
the standard of care.
[802] The
standard of care is established by s. 70 of the CFCSA, which stipulates
that children in care of the Director have the right to receive medical care
when required. CIC Standard 6 states that the Director is to
ensure that a child in care receives care consistent with the rights defined
by s. 70 of the CFCSA and that the Ministrys policy requires that social
workers ensure that a child is provided with medical and dental care when
required.
[803] For the
reasons I set out in this section, I have determined that only part of the
plaintiffs claim has been proven and only in respect of breach of the standard
of care.
[804] J.P.
advised the Director in spring 2010 that she was receiving counselling from
psychologist, Dr. Michael Elterman, and that he wanted to meet with her
and the older children. The Director refused that request. J.P. also asked the
Director in April 2010 to allow the children to attend counselling through an
agency known as Vancouver Incest and Sexual Abuse Centre (VISAC), which provides
services for victims of physical and sexual abuse. Again, her request was
turned down.
[805] Earlier
that month, S.P., who along with her husband were looking after the children,
asked for counselling to be provided to the children because they were engaging
in highly disturbing sexualized behaviours while they were in her care. My
findings concerning those behaviours, including the older children asking her
husband, G.P., who was the childrens uncle, to watch them engage in conduct
they called vulgar lunch, are described in paras. 197 – 202 of the
Reasons.
[806]
Dr. Kot recommended counselling and other types of support for the
older children in her reports dated April 27 (for BT.G.) and April 28 (for
K.G.), 2010. For BT.G., she said:
5. Provide
support and guidance to help [BT.G.] cope with his parents conflict and
possible attempts to ask him to side with a parent. This support and guidance
can range from family support by a caring and neutral relative, to attending a
psychoeducation group for children of divorce, to individual counselling.
6. Monitor
[BT.G.s] emotional wellbeing and if needed, arrange for counselling support.
8. [BT.G.] should be encouraged to
tell more than one person if he experiences touches. That way, mother can be
supported by another adult who has heard the concern directly from [BT.G.].
[807]
For K.G., her recommendation was:
5. Body
safety education: At [K.G.s] age, she should learn about basic good touch and
bad touch (e.g. using the book Its My Body). She should also learn the basic
vocabularies (e.g. private parts, penis, vagina). However, there is no need to
go into further details or place an over emphasis on the risk of sexual abuse.
6. [K.G.] should be encouraged to
tell more than one person if she experiences concerning touches. That way,
mother can be supported by another adult who has heard the concern directly
from [K.G.].
[808] Ms. Pop
did move forward to seek counselling for the childrens aggressive behaviours until
mid-October 2010; however, they were placed on a wait list. Counselling for the
two older children, BT.G. and K.G., did not start until mid-January 2011. Over
time, the older children were provided with counselling from their school and
through an external service known as Act II.
[809] No one was
called to testify on behalf of Act II to explain the number and nature of the
counselling and other therapy sessions provided to the older children.
According to their records, which are in evidence, Act II is a community-based
social service agency that provides specialized assistance for individuals,
children, and families who have experienced crisis, violence, and/or abuse.
Act IIs records show that they provided counselling for BT.G. and K.G.,
but not BN.G. because they determined that he was too young to benefit from it.
BT.G. and K.G. attended joint and individual therapy sessions in 2011.
[810] No
satisfactory explanation for the delay in providing counselling was adduced by
the Province. At the same time, there is no evidence that the Director acted in
breach of any applicable standard of care in respect of her delay in seeking
the services that she ultimately obtained for the two older children up to the
fall of 2011 and in respect of her decision not to obtain counselling for BN.G.
Nor is there evidence that the Director breached any applicable standard of
care in respect of the counselling services that were obtained for the two
older childrens inappropriate aggressive behaviours and anger.
[811] There is,
however, merit to the plaintiffs claims that the Director failed to provide
counselling for the childrens sexualized behaviours and for possible sexual
abuse (after December 2011) when the Director admitted that it was possible the
children had been sexually abused by their father.
[812] It is
clear from the Act II records that the thrust of the counselling services
provided was for the older childrens aggressive behaviours and anger, not for
sexual abuse or sexualized behaviours. That is not surprising since the records
also make clear that Act II was advised by the Director that the children were
not sexually abused.
[813] In my
opinion, the Directors failure to consider, let alone provide, counselling for
sexualized behaviours cannot be excused on the basis that she did not believe
the children had been sexually abused. There was information from a number of
sources that should have alerted her to the need for counselling for their
sexualized behaviours even if the Director did not think they were caused by
sexual abuse from their father, B.G.
[814] There was,
at a minimum, sufficient information from Dr. Kot for the Director to
understand that BT.G. and K.G. possessed inappropriate sexualized knowledge and
required counselling. Supervised access reports expressing concern (e.g., BT.Gs
masturbatory behaviour) and reports from S.P. about the childrens behaviours
augmented the need to address the childrens sexualized knowledge and
behaviours. However, Ms. Allen testified that she only read the supervised
access reports sometimes, and in hearing her testify, I am satisfied that she
did not turn her mind to the significance of the sexualized behaviours in the
supervised access reports.
[815]
Further evidence concerning the need for counseling for sexualized
behaviours came from Mr. Colby. He provided his opinion when testifying in
November 2011 that urgent counselling for BT.G. and K.G. was necessary because
of their highly inappropriate sexualized knowledge and aggressive behaviours.
He said that the oldest child, BT.G., who was age nine at that time, would turn
to acting out with violence in his teenage years and expressed concern that he
would relate his sexuality with aggressive behaviour and violence towards his siblings
and peers:
A I have concerns about the oldest two
children, who I know with greater detail than the younger two, regarding their
current emotional and psychological status. Starting with [BT.G.], he is a very
angry child, who acts out his anger in a way that presents risk and danger to
his siblings, and quite possibly to others in his environment; school, daycare,
wherever else.
He is a very unhappy child, and
is willing to demonstrate it readily. He will show how unhappy and over — and
over-exaggerates — and exaggerate it to its fullest. My concern is what he is
going to do to let people know that he is unaccepting of his status … but he
needs to be able to address matters related to his interaction with others or
you will — Im afraid youre going to be seeing some antisocial aggressive
behaviour directed at his siblings and peers.
And part of
what hes incorporated into that is also about his sexuality. I think as he
matures, as he reaches an age of engagement with peers around issues of sexuality,
its going to also be a violent episode for him because he identifies it
aggressively and violently.
[Emphasis added]
[816]
Mr. Colby testified that the older daughter, K.G., would begin to
express herself sexually, in the near future, before she reached puberty.
Indeed, Mr. Colby indicated that even at the age of seven, K.G. was
engaging in overt sexuality as a means of communication. He left the distinct
impression that medical intervention was required without delay:
A [S]he is using her base of knowledge about
sexuality in her interactions with others, and it — it –my concern is that
will become her means of transacting interpersonal relationships even before
she reaches puberty, and — and there — there is an acting out that occurs
within at least with the three older children around issues of sexuality being
the medium through which they interact.
So — so I — I — its going to
lead to a level of — of disconnect from their peers as —
Q When you say [K.G.], these are my words,
not yours, engages in communication through sexuality, are you referring to her
engaging [in] inappropriate overt sexuality as a means of communication as she
gets older?
A Even now, My Lord.
Q Even now?
A In the — in the — in the
things that she states and to how she interacts with her brothers physically,
and the — the — the base of knowledge that she has about genital sexuality I
think is going to take a — a strong degree of oversight.
[Emphasis
added]
[817] On
December 30, the Director signed a referral for counselling for them with Act
II but not in respect of sexual abuse counselling or for sexualized behaviours.
Counselling began on January 30, 2012.
[818] None of
the counsellors who provided services were called to testify and none of the
defence witnesses provided any satisfactory reason for the Directors continued
approach to counselling for the children. Records produced from the Directors
file show that a referral was sought to a pediatrician in early 2012. Although
the Province submits that the pediatrician advised the Director that the
counselling the children were receiving from ACT II was sufficient, the doctor
was not called to testify. I have no means of determining what information the
pediatrician reviewed (for example, I do not know if the doctor was made aware
of the childrens sexualized behaviours). The nature of the consultation was not
documented in evidence and no report was produced. There is, accordingly, no
direct evidence from which I am able to conclude that the Director relied on
medical opinion for her decision not to seek counselling for the childrens
sexualized behaviours.
[819] Accordingly,
in failing to consider the need for counselling for their sexualized behaviours
and to act upon the medical opinions of Dr. Kot and Mr. Colby, I have
determined that the Director failed to act in the childrens best interests and
did not abide by her statutory mandate or her own policies. She acted in breach
of the standard of care of a careful parent. There is no basis for a finding of
either misfeasance or breach of fiduciary duty.
[820] I turn now
to the plaintiffs claim that the Director failed to properly address complaints
and concerns about the troubling and aggressive behaviour of BT.G. and BN.G.
from their schools.
[821] BT.G. and
BN.G. exhibited significant signs of anger and inappropriate aggressive and
sexualized behaviours at school and during supervised access visits. BN.G.s
teachers and principal expressed concerns to Ms. Castro concerning his
inappropriate conduct at school (e.g., aggressive behaviour such as fighting,
as well as theft and lying) and that he was crying out for help by cutting his
clothing and was underfed. I agree with the plaintiffs submission that Ms. Allen
accepted at face value, and without proper inquiry, Ms. Castros
out-of-hand rejection of these expressed concerns.
[822] Ms. Allen
was not open to considering the supervised access workers reports which were
replete with similar troubling information about the childrens aggressive and
sexualized behaviours. Nor did she consider any information that J.P. tried to
bring to her concerning the sexual abuse allegations. Ms. Allens approach
was to wait for the outcome of the First Trial. There was no attempt to engage
in any review with her superiors even though she began to think, once she
watched the videotapes of the VPD interviews of BT.G. and K.G., that the
children may have been sexually abused by B.G.
[823]
Ms. Allen did not engage in any analysis of the Directors ongoing
support for custody for B.G. even though she conceded that the Directors
December 14 Statement might be a change in thought by the Director and that
B.G. may have sexually abused his children:
A
basically says that theres possibility after
hearing all the evidence before the court that there might be a change in – –
in thought. But as of this date that was the position of the Director.
Q But – – but isnt the protection of children
paramount to the Ministrys mandate, correct?
A Yes.
Q So if you have some evidence, maybe its not enough
to warrant a criminal charge, maybe it doesnt even rise to the level of – – of
probability, but that there is some real evidence that the children have been
sexually abused, is it appropriate for the Director to be supporting [B.G.] for
custody?
A I can only say
that this is what was on this document.
[Emphasis
added]
[824] Ms. Allen
was the social worker in charge of the day-to-day aspects of the childrens
care. Once she read the disturbing reports in the supervised access reports and
watched the videotapes of the VPDs interviews with the children, she should
have stepped back and conducted an assessment of the case. Instead, she said
that she treated the First Trial as the assessment process (as opposed to
engaging in an assessment process required by the standard of care once she
thought the children may have been sexually abused). Consequently, as the First
Trial proceeded, J.P. was put to the burden of proving the sexual abuse allegations
and demonstrating that she did not pose any s. 13 protection concerns, all
while the children remained in foster care. Ms. Allen failed to act as a
careful parent and in the childrens best interests.
[825] I also
agree with the plaintiffs submission that instead of focusing on the
childrens best interests, Ms. Allen focused on J.P. For example, she
refused to let J.P. take pictures of the children during access visits in the
holiday period of 2011, even though she allowed B.G. (whom the Director had
just conceded may have sexually abused the children) to take photographs. I
observed a manifestation of Ms. Allens animus towards J.P. during the
First Trial when she exhibited unprofessional conduct one day during the
proceedings. Ms. Allen began making faces at J.P. while both were seated
in the gallery because she was mad at something J.P.s lawyer said when
addressing the Court. Ms. Allens conduct in the highly charged atmosphere
of the First Trial caused a disturbance in the courtroom. It is troubling that
a professional tasked with the responsibility to act in the best interests of
the children chose to act in that manner, especially given her very limited
dealings with J.P. (she never met with her prior to the First Trial) and her
overall approach to the childrens care and the court case. I am satisfied that
her behaviour in court was a manifestation of the general disdain held by
Ministry social workers towards J.P. During this trial, Ms. Allen
proffered an apology for her conduct that I found lacked sincerity. It is very
clear to me that she continues to hold tremendous animus towards J.P. as well
as her lawyer and his assistant.
[826] It is
unfortunate that the Directors antipathy towards J.P. has seeped its way into
the Provinces submissions. By way of background, prior to the Apprehension,
the children enjoyed many extra-curricular activities, including gymnastics for
K.G. and choir for BT.G. By all accounts, both were performing well in those
activities. The Director did not permit the children to participate in their
pre-apprehension recreational activities while they were residing in a foster
home even though J.P. requested and offered to pay for them. Ms. Castro
and the Director thought it was too difficult to arrange for those activities
but no enquiry into the availability of those services was carried out.
Instead, Ms. Allen accepted at face value Ms. Castros position that
there was no time or need for such activities.
[827] In
response to the allegation levelled at the Director from the plaintiffs for her
decision not to accept J.P.s offer to pay for the type of extra-curricular
activities the children enjoyed before the Apprehension, the Provinces closing
submissions castigated J.P. for having high expectations for her children and
raising the next [Olga] Corbett and the next Pavarotti. With the greatest of
respect, that submission unduly focuses on J.P. and overlooks the Directors
failure to appropriately consider whether it was reasonably possible for the
children to enjoy any of their prior activities and ignores the rights of the
children under s. 70(1)(h) to participate in social and recreational
activities if available and appropriate according to their abilities and
interests.
[828] Children
in the care of the Director have rights under the CFCSA. The Director
and the Ministry and their agents (including caregivers and service providers)
are obliged to ensure that children receive those rights. Amongst them are the
right to participate in social and recreational activities, and to be free from
corporal punishment: s. 70(1)(3); Manual, 1.2-8, citing s. 70
of the CFCSA.
[829] When BT.G.
disclosed to Ms. Allen that Ms. Castro used corporal punishment for
discipline, Ms. Allen spoke with K.G. but did not undertake any other
investigation. Ms. Allen testified that she could not recall having made
any inquiries of Ms. Castro. In the circumstances, I have determined that
she breached the standard of care of a careful parent in failing to investigate
the veracity of the report of conduct that contravened the Directors policy
against corporal punishment and the rights of the children.
[830] When BT.G.
made statements to Dr. Hugues Hervè,
a psychologist called as an expert in the plaintiffs case, suggesting that Ms. Castro
had used corporal punishment as a means of discipline, the Director did not,
once she received notice of his remarks, investigate. Instead, during the the
trial, the Province dismissed his statements to Dr. Hervè.
[831] In
summary, I found that Ms. Allens approach to concerns expressed by the
school teachers and administrators was to accept the foster mothers advice at
face value. There was no reflection or analysis concerning the merits of that
advice. She failed to properly investigate a report of corporal punishment. The
type of medical intervention called for by Mr. Colby was also not sought
in a timely way even though the Director relied on his expertise as part of her
case against J.P. Ms. Allen simply followed through with the Directors
ongoing plan to support custody to B.G. even though she began to think that
sexual abuse may have occurred. The antipathy held by social workers towards
J.P. adversely affected her view of J.P. and the Directors response to J.P.s
request to pay for extra-curricular activities for the children while they were
in foster care. Ms. Allens conduct cannot be excused as an error in
judgment, as it reflects the ongoing and singularly focused plan to support
B.G. and continued antipathy towards J.P., contrary to the best interests of
the children. In the circumstances, I am satisfied that the plaintiffs have
proved that Ms. Allen did not do what a careful parent would have done in
the circumstances, and consequently have proven that Ms. Allen breached the
standard of care of a careful parent.
B. The
Directors Decision to Withdraw from the Apprehension Proceedings
[832] The
plaintiffs claim that the Director improperly failed to provide reasons for her
decision to withdraw her protection concerns about J.P. Further, having withdrawn
them, the plaintiffs complain that the Director nonetheless went on to pay for
two experts to testify on behalf of B.G. in the family law action, which in
turn prolonged the First Trial and caused further and unnecessary expense to
J.P.
[833] On March
29, 2012, some 64 days after the start of the First Trial, the Director advised
that she no longer had any protection concerns regarding J.P. and the children
could be returned to her. She did not provide any reasons for the change in her
position. Until that date, the Director had remained steadfast in her view that
there were valid ongoing s. 13 concerns about J.P.s conduct and mental
state that prevented the Director from returning the children to her care and
that B.G. should have sole custody of the children.
[834]
The information the Director provided to the Court in explaining her
decision to withdraw was conveyed in general terms:
In other words, the protection concerns that were present on
the removal of the children December 30th do not exist anymore. The
passage of time has shown the Director that the children are not in need of
protection from the mother.
THE COURT: So the Director – – what youre telling me now is
that the Directors concerns that led to the apprehension of the children on December
30th, 31st, 2009, no longer exist?
MR. SOMERS: Thats correct. We dont – – no, that was a
bona fide apprehension – –
THE COURT: Yes.
MR. SOMERS:
– – because the mother was hiding – –
[Emphasis
added]
[835] It is
clear from this exchange that the Director continued to convey inaccurate information
to the Court about the Apprehension. As I have pointed out, the Director had
not determined that J.P. was hiding the children before she made her decision
to apprehend them. I wish to point out that in making these findings I am in no
way criticizing Mr. Somers, whom, I am satisfied, was, in light of his
retainer only days before, conveying what he understood the facts to be. I
found his conduct to have been forthright, candid, and honourable throughout his
appearances before this Court.
[836]
The information provided by the Director in the form prescribed by the CFCSA
when the Director decides to withdraw – a Form B – provided only general
information and not specifics about the reasons for the Directors decision to
withdraw:
Reasons for Return of the Child
The director has returned the children for the following
reason(s):
The children were removed from
the care of their mother, [J.P.], on December 30, 2009. On May 29, 2012, Mr. Justice
Walker made an Order in British Columbia Supreme Court that [J.P.] shall have
sole custody and sole guardianship of [BT.G.], [K.G.], [BT.G.], and [P.G.]
(children). There was a great deal of evidence tendered over many months in
the custody and access hearing. On March 26 [sic], 2012, Counsel for the
Director advised the Court that the Director no longer had section 13
protection concerns vis a vis the mother, [J.P.]. The Director has remained
involved to assist the children and [J.P.] with the reintegration process. The
children are now in the full time care of their mother. The family will
continue to work with psychologist Dr. Krywaniuk and counsellor, Mena
Perrotta. The Director withdraws the Application for an Extension of a
Temporary Custody Order filed on July 14, 2010.
[837] The
Directors decision to change her position concerning J.P. and to withdraw the Apprehension
Proceeding was not based upon any new facts concerning the merits of the case
that she did not know when she delivered her December 14 Statement.
[838] By
December 14, 2011, the Director was fully aware of the evidence that had been
adduced and the remaining evidence that would be tendered as part of J.P.s
case. When the Director set out her position in the December 14 Statement, she
was aware of the evidence of Mr. Colby, Dr. Edamura, Dr. Dunne,
and had in hand the video recordings of the VPD interviews of BT.G. and K.G.,
the reports prepared by TCS, Dr. Elterman, Dr. Sidky, and Mr. Woods,
and the reports prepared by supervised access workers reporting on sexualized
and inappropriate aggressive behaviours and remarks made by the children. The
Director had the benefit of Ms. Allens notes of the proceedings from the
First Trial and the entire VPD file. Thus, the only evidence the Director did
not have was all of B.G.s evidence, which would have made no difference
because the Director could not expect him either to resile from his position
that he should have sole custody of the children because J.P. was unfit to
parent or to admit that he sexually abused the children.
[839] The
Province submits that the Directors decision was based on a review of the
videotapes of the VPD interviews of BT.G. and K.G. in January 2010 but there is
no evidence from which I can make that finding or draw that inference.
[840] Was the
Directors sudden decision to reverse her position, particularly when there
were no new facts adduced in evidence in the First Trial following the position
conveyed in the December 14 Statement, the result of an ongoing evaluative
process as the Province submits? To answer that question, it is instructive to
review what the Director is required to do before withdrawing protection
concerns.
[841] When the
Director determines that a child in care will be safe and is no longer in need
of protection, the Director may withdraw from proceedings prior to a protection
hearing by filing a Form B. Filing of that form terminates the legal
proceedings: CFCSA, s. 48. In deciding whether to withdraw or to
proceed to a protection hearing, the Director must consider a number of factors
including the childs views and sense of safety and the availability and
adequacy of services to meet the needs of the child and the family. A parents
history and past involvement with the Director, the circumstances that led to
the apprehension, the nature and severity of injury or harm to the children
that caused them to need protection, and the presence of family violence are
also factors that must be considered by the Director: Manual, 3.36-3, 4.
[842] According
to CFS Standard 21, entitled Ending Child Protection Services to a
Child and Family, the Director must base her decision that the children are no
longer in need of protection and protection services on:
(a) a review of the
circumstances that led to the child needing protection;
(b) information
obtained by consulting with others who know the child and family and who may
play a role in keeping the child safe;
(c) information
obtained from persons who have expertise specific to the circumstances of the
child and the family; and
(d) a
reassessment of the strengths and risks to the child, family and extended
family by using a standardized, culturally appropriate assessment tool.
[843] There is
no evidence that the Director engaged in those considerations when determining in
March 2012 that the children could be returned to J.P. Instead, the only
information provided was in the statements made to the Court and in the Form B.
[844] In the
circumstances, I am left to conclude that the Director made her decision to
withdraw based on extraneous factors and not in accordance with the requirements
of the CFCSA.
[845] I will now
turn to my determination of the plaintiffs claim concerning the Directors
decision to pay the fees of Dr. Eirikson and the counsellor, John Day, who
provided physical discipline services to B.G., if B.G. wished to call them to
testify as part of his case (the Director previously had them on her witness
list to call as part of her case). The Directors offer was raised in court in
the course of the Director announcing her decision to withdraw. The Directors
counsel offered to lead their evidence in chief if B.G. called them.
[846] I agree
with the Provinces submission that there was no lack of transparency in the
Directors offer, but I cannot agree that the offer was then approved by the
Court. There was no such determination. Plaintiffs counsel voiced his clients
objection and put the Director on notice that the offer was both inappropriate
in the circumstances and should attract an award of special costs.
[847] B.G.
accepted the Directors offer to pay the witnesses fees but chose to lead the
evidence in chief from the witnesses himself. As a result, the witnesses were
called to testify and the Director paid their fees having been put on notice of
the plaintiffs objection and intention to seek special costs.
[848] The
Directors decision fuelled, for a time, B.G.s drive to defend the case. The
testimony of both witnesses added to the length of the trial. As it turned out,
their testimony hurt B.G.s case and revealed weaknesses in the case that the
Director had intended to put in.
[849] The
Director did not lead any evidence in this trial to explain the basis of her
decision to pay those fees. I am left, therefore, to question the propriety of
the Directors decision to support B.G.s efforts to prove that he was the
appropriate parent to enjoy custody and that J.P. suffered from mental health
issues sufficient to deny her custody and to limit her access to the children,
in circumstances where the Director no longer had any protection concerns about
J.P. and where the Director had conceded it was possible that B.G. had sexually
abused his children. It is not within the Directors mandate and it is contrary
to the Directors own practice to interfere in family law disputes where there
are no protection concerns. Nor is it the Directors mandate or practice to
support a parent whom they think may have sexually abused his children against
the other parent for whom they have no protection concerns. In the
circumstances, the Directors decision to pay those fees cannot be said to have
promoted the childrens best interests. I am satisfied that the Directors
conduct falls within the category of conduct (which I discuss in section XXI)
that warrants an award of special costs.
[850] I do not
fault Mr. Somers for offering to lead their evidence who, in communicating
his clients instructions, acted appropriately as an officer of the Court to
facilitate an orderly presentation of the evidence in circumstances where B.G.
was self-represented and had, up to that point, been relying on the Director to
lead their evidence.
C. The Reintegration Agreement
[851] Following
her withdrawal of protection concerns with respect to J.P., the Director agreed
to provide health care services for the children. She also committed in the
closing days of the First Trial to transfer the file to a new Ministry office.
[852] The
plaintiffs allege several claims against the Director, including that she breached
a reintegration agreement reached with J.P. on behalf of the children; failed to
provide funds for the children to receive counselling; failed to transfer the
file concerning J.P. and the children to a different Ministry office; and
allowed the foster mother to inappropriately advise the children that they
would be returning home to their mothers care before that decision was made by
the Court.
[853] Even
though the Director withdrew her protection concerns, I did not agree that the
children should be immediately returned to their mothers care. I found (based
on Mr. Colbys evidence concerning the need for appropriate reintegration)
that the children should be returned to J.P.s full-time care on a graduated basis,
progressing from unsupervised visits at her residence, including overnight
visits, to their complete return to her care within six weeks of the
implementation of a reintegration plan. At para. 512 of the Reasons, I
said that Mr. Colby conceived of a reintegration plan that calls for
counselling and psychological and possibly psychiatric treatments that would
last for two years.
[854] I
determined, at paras. 511 and 523, that the children were presently in
need of protection from the damage they have suffered as a result of their
fathers sexual and physical abuse, the Apprehension, and the separation they
have endured since then while [they] lived in different foster homes. I noted at
para. 524 that the Director and J.P. were, in light of Mr. Colbys
evidence, working up an appropriate reintegration plan and agreement to allow
the children to be returned to their mothers care in a manner designed to
avoid as much emotional upset as possible. To get the requisite care for the
children without delay, I approved of the reintegration agreement and plan of
care relying on my parens patriae jurisdiction.
[855] The plaintiffs
claim that the Director failed to pay for the counselling services she agreed
would be provided for the children. The Province disagrees and contends that
J.P. voluntarily chose not to pursue what the Director had contracted to
provide.
[856] When the
reintegration agreement was being negotiated, there was considerable confusion amongst
the parties regarding the Directors authority to provide health care services
to the children given her decision to withdraw from the Apprehension Proceeding
on March 29. The Directors position in the First Trial was that she could not
formally withdraw from the Apprehension Proceeding if she was to provide
medical assistance to the children. Otherwise, once she withdrew and filed a
Form B, her jurisdiction to provide assistance only arose where a parent voluntarily
submitted to her jurisdiction and reached agreement concerning a plan of care. J.P.
did not wish to submit to the Directors jurisdiction given the circumstances
of the case. The Province took a similar position in this action. Ms. Lejko,
on the other hand, testified to the contrary, stating that the Director could
provide health care services to the children absent an agreement requiring J.P.
and the children to submit directly to the Directors jurisdiction. To this
day, the confusion has not been resolved.
[857] It will
suffice for me to say that in determining this part of the claim, the plan
called for in the reintegration agreement did not proceed in the manner
originally agreed to by the parties, due to ongoing confusion and significant mistrust
between the parties. Only part of the reintegration agreement was performed. No
single party is wholly responsible for the lack of complete performance of the
reintegration agreement. I find that through their conduct, the parties eventually
treated the agreement to be at an end.
[858] The
plaintiffs also claim that the Director should have assisted the children with
additional funding when a request was made by their counsel in late July 2012.
The plaintiffs complain that the Director refused to provide assistance unless
J.P. entered into a voluntary care agreement with the Director that required
her to submit to the Directors jurisdiction. They submit that the Directors
insistence that she do so given the circumstances of this case is both insulting
and contrary to Ms. Lejkos evidence. The Province defends this claim on
the basis that there was no requirement in law for the Director to advance
funds.
[859] I am not
satisfied that there is proof of any breach of the standard of care or of
misfeasance. No breach of fiduciary duty can arise because the children were no
longer in the Directors care when the request was made. The Directors demand that
J.P. submit to the Directors jurisdiction as a condition precedent to funding does,
however, cause me to be concerned about the Directors sincerity to assist the
children in the wake of Mr. Colbys very specific evidence about the
childrens immediate needs, the historical circumstances of the case, and the
Directors commitment to the Court in March and April 2012 to assist the
children.
[860] The plaintiffs
third claim concerns the Directors conduct that the plaintiffs allege impeded
the delivery of health care services to the children. Following release of my
Reasons, the plaintiffs applied to the Crime Victims Assistance Program
operated by the provincial government for financial assistance. The goal was to
secure funds for counselling services for the children. The department of the
provincial government looking after such claims required documents from the
Director in order to approve the claim. J.P.s undisputed evidence is that she
was advised by the Crime Victims Assistance Program that it made a request to
the Director for those records in October 2012. For reasons not explained in
the evidence, the Province, who, it turned out, acted as agent for the Director
in response to the request, did not respond and delayed delivery of records required
by another branch of government to issue funds to provide counselling services
to the plaintiffs. It was only when the issue was raised by J.P. in her
evidence in early June 2013 during the trial of this action that the Province
caused the records to be sent. No evidence was led by the Province to explain
the Directors conduct.
[861] I find the
delay was unreasonable. While there is no direct evidence of malice, I can find
no reasonable explanation for the Directors failure to act other than either a
deliberate tactic or neglect. In either case, it was callous. It is a breach of
the standard of care of a reasonable social worker to fail to respond to a
request for records necessary to allow funds for counselling to be provided to
the children. The Directors conduct falls outside of her statutory mandate to
protect children and ignored Mr. Colbys opinion evidence and the
Directors previous commitment to assist the children.
[862]
The plaintiffs fourth claim concerns transfer of the file to a
different Ministry office. I was advised by the Director during the First
Trial, on April 4, 2012, that the Director would transfer the file a different Ministry
office, to be handled by different personnel, given the spectre of the ongoing
bad faith claim:
MS. DUNN:
Your
Lordship will note that the – – it will be a new office that would be dealing
with the file, new social worker, Norissa Boussole [phonetic] as well as a new
team leader. This plan was developed in consultation with both offices and it
will have to be – it will have to be bendable in terms of exact – – once the
therapeutic team is put together, they might have recommendations of how to
proceed.
[863] Subsequently,
at the request of J.P. and with the concurrence of the Director, I ordered that
no one from the Directors West Broadway office was to have any further involvement
with J.P. and the children.
[864] Even
though the Director and senior staff at the Ministry were made aware of my order,
staff at the West Broadway office, including Ms. Allen and Mr. Blandford,
remained involved with decisions concerning counselling for and access to the
children by J.P. and B.G., to the point where J.P.s access to the children,
which I had ordered, was temporarily disrupted and would have, without her
counsels assistance, been impeded altogether.
[865] Ms. Pop
became involved with the childrens affairs upon her return to the office in
May because she was not advised of the order when she returned. It took
approximately two months for the Director to complete arrangements for the new
social workers to handle the childrens file. In Ms. Pops case, her
breach of the order was inadvertent because she had not been made aware of it.
Otherwise, the Director failed to ensure compliance with the order and the
assurance she provided to the Court that steps would be taken promptly to
arrange for a separate office to handle the case.
[866] I also
agree with the plaintiffs submission that the Director failed to take steps to
properly document the outcome of the case and the Directors decision to
withdraw her protection concerns when the file was transferred, so that an
internal view continued to be expressed that J.P. suffered from mental health
concerns, despite the Directors decision to withdraw from the Apprehension
Proceeding and in spite of my findings from the First Trial that J.P. did not
suffer mental health problems.
[867] In all, I
am satisfied that a negative view of J.P. and her mental capacity, to the point
of being overtly visceral, as well as a disbelief in the finding that B.G.
sexually abused his children, despite statements that the Director ultimately
wished an independent third party to assess the evidence and determine the
issues, inappropriately and unreasonably persists amongst social workers to
this day.
[868] I turn,
lastly, to the plaintiffs fifth claim, which I find was not made out. The
plaintiffs claim that Ms. Castro inappropriately divulged to K.G. the
outcome of the Directors decision before the reintegration plan, including
appropriate information to be given to the children, could be finalized. There
was some evidence (some of which was hearsay) to suggest that K.G. was told by Ms. Castro
that she would be returning to her mothers care at the same time that details
were being sorted out between the Director and J.P. about the best and least
disruptive means in which to communicate that decision to the children. The
Province led evidence to support a defence that the information was conveyed to
K.G. by or on behalf of J.P. The evidence is sufficiently vague such that I am
not able to determine the full extent of the information provided by Ms. Castro
to K.G. let alone whether it was the result of inadvertence, neglect or
intentional conduct on the part of the Director. I have determined, however,
that J.P. did not communicate the information to K.G.
XV. THE
PROVINCES STANDARD OF CARE EXPERT
[869] In this
section, I explain why I rejected much of the evidence of the Provinces
standard of care expert, Ms. Frances Grunberg.
[870]
Ms. Grunberg was asked by the Province to provide her opinion
concerning two specific questions, as follows:
1. Did
the Director and its delegates act in accordance with the policies and
procedures (also referred to as the Ministrys Child and Family Development
Service Standards) with respect to the impugned steps and decisions they made
with respect to the plaintiffs?
I would ask that you try to link
the substance of your opinion with the specific allegations as set out in
paragraph 14 of the Amended Notice of Civil Claim.
2. Did the decision of the
Director and its delegates to apprehend the [P.] children, place them in foster
care, support the father as the custodial parent, and permit the father to have
unsupervised access visits meet the requisite standard of care? Specifically,
was/is it acceptable standard practice for social workers in British Columbia
with delegated authority pursuant to the CFCSA to make the impugned decision in
this case (i.e. to allow [B.G.] to have unsupervised access).
[871] Ms. Grunberg
answered those questions in the affirmative, noting only a few minor
deficiencies in the Directors conduct during her evidence in chief that she
concluded were of no moment. In the course of providing her opinion, she also
opined that the Director acted properly and in accordance with the standard of
care throughout the Apprehension Proceeding, including the First Trial. The
second half of Ms. Grunbergs report contains her analysis of the specific
claims pled against the Province in the Amended Notice of Civil Claim.
[872] From her
work and educational experience, Ms. Grunberg appeared qualified to
provide expert evidence concerning the standard of care in social work practice.
She was formerly employed as a social worker for the Ministry and its
predecessor until 1983. She obtained a Masters of Social Work from the
University of Calgary in 1974. On her departure from the Ministry, she worked
as a consultant for the VPD, the Vancouver School Board, and the provincial
government providing advice concerning child protection issues. She also spent 10
years in private practice assisting adults who were victims of sexual abuse.
[873] In
determining whether an experts evidence will be helpful, courts look to the
experts independence and objectivity. This is where Ms. Grunbergs
evidence was deficient.
[874]
The Ontario Court of Appeal said in Alfano v. Piersanti,
2012 ONCA 297, that experts should not become advocates for the party or the
positions of the party by whom they have been retained (at para. 108). A
biased expert, the Court also said, is unlikely to provide useful assistance
(at para. 105). The Court pointed out, at para. 108, that experts
should not be influenced by their client:
It is not helpful to a court to
have an expert simply parrot the position of the retaining client. Courts
require more. The critical distinction is that the expert opinion should always
be the result of the experts independent analysis and conclusion. While the
opinion may support the clients position, it should not be influenced as to
form or content by the exigencies of the litigation or by pressure from the
client. An experts report or evidence should not be a platform from which to
argue the clients case. As the trial judge in this case pointed out, the
fundamental principle in cases involving qualifications of experts is that the
expert, although retained by the client, assists the court.
Unfortunately, those cautions were not heeded in this
case.
[875] An expert
must also have a full and accurate picture of the facts: Chan v. Chen,
2003 BCSC 1554 at para. 92. That, too, did not occur in this case.
[876] The thrust
of Ms. Grunbergs evidence was that the Director met the standard of care
and generally adhered to best practices. However, I am unable to rely upon much
of Ms. Grunbergs evidence because I find that she was neither independent
nor unbiased. To the contrary, I found that she lacked objectivity, was
argumentative (both in her report and in her testimony), inconsistent, at times
evasive when challenged in cross-examination or confronted with additional
facts, and defensive. She expressed opinions without knowledge of important
facts, she was mistaken about other key facts, and she disregarded yet others. Ms. Grunberg
accepted a constrained retainer that called for her only to review the
Directors conduct in investigating the sexual abuse allegations to determine
if the Director met her policies but not to critique it. The second half of her
report, which purports to respond to what she perceived the plaintiffs claims
to be, was advocacy in the guise of opinion evidence that, Ms. Grunberg
ultimately conceded, did not engage her expertise. In sum, I found Ms. Grunberg
to be an advocate for her client in respect of the opinions she expressed in
her report.
[877] I will
provide some examples of the shortcomings in Ms. Grunbergs evidence.
[878] Ms. Grunberg
displayed what seemed to be a poor memory of events, even in instances where it
was clear that she read documents about an impugned issue shortly before she
was to testify.
[879] As I have
indicated, Ms. Grunberg misapprehended or was unaware of facts in numerous
areas. For example:
(a) She
mistakenly thought that the children had made their sexual abuse disclosures to
J.P. in November 2009, that J.P. had reported these allegations to the Ministry
in November, and that the Director had investigated them in November at the
same time that she investigated the allegations of physical abuse. She also
mistakenly thought that Mr. Tymkow had interviewed J.P. about the sexual
abuse allegations, which he never did. Ms. Grunbergs testimony revealed
that she paid insufficient or no heed to either or both the Ministrys own
records and the Reasons. The Ministrys records clearly identify what the
Director did to investigate reports of physical abuse, and the Reasons clearly
set out when the Director was advised of J.P.s concerns about sexual abuse and
when the older children made their disclosures.
(b) She
thought that the Director offered support services to J.P. after she reported
the sexual abuse. However, she could not point to any services that were
offered and she admitted there is no record of it in the Ministrys records.
(c) She
believed that concerns for the whereabouts of the children expressed by J.P.s
family to the Ministry in December 2009 were a factor in the Directors
decision to apprehend the children, but she did not know that on December 30,
2009, the day before the Apprehension, J.P.s brother telephoned the Ministry
on behalf of J.P.s family to report that the children were safe with J.P. When
Ms. Grunberg was confronted with a Ministry document recording that call,
she became argumentative stating, That was one call from one brother.
(d) She did
not know that J.P. was upset about the Directors decision to allow B.G.
unsupervised access.
(e) She did
not know that Mr. Colby, whose opinions were relied on by the Director in
support of her position throughout most of the First Trial, opined that J.P.
did not coach the children to make their disclosures of sexual abuse.
(f) Ms. Grunberg
had no recollection of reading J.P.s December 21 Affidavit as part of her
review. If she did, it was clear to me that she did not pay any attention to it.
She also did not review the audio and video recordings made by J.P. of the
childrens disclosures of sexual abuse. Moreover, she did not watch the videos
of the VPDs interviews with the two older children, BT.G. and K.G., nor did
she read transcripts of those interviews. Instead, she read only summaries.
[880] I am
satisfied that Ms. Grunberg lacked an appropriate understanding of the
circumstances surrounding the childrens disclosures of sexual abuse. Because she
did not listen to what the children said or watch them making their statements,
she could not appreciate their tone of voice, manner of speech, and body
language and the nature of their interaction with their mother as they made
their disclosures. As a result, and even though she admitted that the Director
is required to consider childrens disclosures concerning sexual abuse (and to
consider them as a prima facie evidence of abuse), Ms. Grunberg was
not in a position to provide useful opinion evidence concerning the Directors purported
compliance with her statutory obligations and whether she met the standard of
care in her assessment of and response to the childrens disclosures of sexual
abuse. Ms. Grunbergs evidence to justify her decision not to review the
audio and video recordings of the childrens disclosures – on the basis that
she was asked to review the conduct of the Ministry to determine if it followed
its policies, but otherwise not to critique its investigation was, I find,
illustrative of her failure to appreciate the inappropriate and one-sided
nature of her retainer.
[881]
Ms. Grunberg did not read through the transcripts of evidence from
the First Trial nor did she review all of the exhibits. She felt confident, nonetheless,
to express an opinion that the children were not sexually abused by their
father. Moreover, Ms. Grunberg said the findings of fact from the First
Trial were wrong:
Q Right. Now, we in fact, know that the children
were sexually abused; correct?
A I dont believe we know that they were in
fact sexually abused.
Q So you dont believe the courts findings. You
think that the court got it wrong; correct?
A Yes, correct.
A Sir, there are
often findings of fact in court, and those cases get appealed and the finding
of fact changes. The Ministry believed differently than the court found or
brought judgment. The Ministry had a completely different position. Now, that
position was not recognized, but that doesnt mean the Ministry was wrong, and
thats what I was asked to comment on.
[882] Ms. Grunbergs
evidence that she was not asked as part of her retainer to comment on Mr. Stricklands
conduct highlights a significant gap in her analysis that, in my view, also
undermines the strength of her opinion that the Director met the standard of
care and generally adhered to best practices.
[883] It is also
troubling that Ms. Grunberg changed some of the opinions contained in her
notes and her draft reports adverse to the Provinces position to favour the
Director her final report without any apparent basis or justification.
[884] One
example concerns the Directors reliance on the VPD investigation into the
sexual abuse allegations. Ms. Grunberg testified that it was appropriate
for the Director to rely on the VPD to conduct the investigation. However, her
file note expressed a contrary opinion: the Ministry relied too heavily on the
VPD. The note suggested that the Ministry should have conducted its own
investigation in accordance with CFS Standard 16.
[885] Another
example relates to the plaintiffs allegation that after having admitted that
it was possible that B.G. sexually abused the children, the Director continued
to take the patently unreasonable position [during the First Trial] as late as
Friday, December 16, 2011, that she supports sole custody for [B.G.].
[886] In her
seventh draft report, Ms. Grunberg wrote that she could not provide an
opinion about the Directors conduct and positions taken during the First Trial
because she had not been present. The plaintiffs claim was difficult to
answer, she wrote, and any answer she could provide, she stated, would be
speculative.
[887]
After that draft was prepared, a file note made by Ms. Grunbergs
assistant, Amy Rowe, who culled the Directors documents and made decisions
about which ones Ms. Grunberg should review, records Ms. Rowes
discussion with one of the defence counsel representing the Province. On its
face, the note reflects a conversation in which Ms. Grunberg was being
asked to change her opinion about the Directors conduct during the First
Trial. The key part of the note reads:
2 other things:
pg. 38 14(v)
– I can only speculate
delete having not been there
say –
for the reasons I have previously stated the decision to support full custody
to [B.G.] was consistent with best practice & is in the best interests of
the children. Based on info recd to date
[Emphasis added]
[888]
Ms. Grunbergs opinion in her draft was subsequently modified. In
her final report, Ms. Grunberg opined that the Directors ongoing decision
to support custody to the childrens father met best practice:
For the reasons previously
stated, the decision to support the full custody for [B.G.] was consistent with
best practice in child welfare.
[889]
When initially confronted with Ms. Rowes note, Ms. Grunberg
said that she could not recall it. Not long afterwards, when the credibility of
the opinion she expressed to the contrary in her final report was challenged,
she suddenly remembered the circumstances in which she changed her opinion. She
claimed that it had nothing to do with Ms. Rowes note, and that she had
simply decided to change her opinion out of the blue. When the veracity of
that testimony was challenged, Ms. Grunberg responded that she was giving
her evidence at the trial under personal duress:
Q Now, lets talk about veracity and accuracy, Ms. Grunberg.
A few minutes ago, you said you had no idea why you changed [the report].
Thats still your evidence; right?
A Mm-hmm, yes.
Q So you just, out of the blue, decided to
change it; right?
A As I recall, thats my recollection.
Q Is
it possible that youre either lying or that your memory is poor? Which is it?
A Its
possible that my memory is poor, and Ill tell you why, sir. On June 21st,
my husband died. Okay? So I have – – I produced this report in December, when
he was very ill, and then I went through a number of months of dealing with a
very sick husband, who passed away. And I agreed to sit here and give evidence
in court with – – under great psychological duress, personal duress.
[890] Because
neither Ms. Rowe nor defence counsel testified, I cannot determine whether
the note in fact refers to an instruction that came from defence counsel. I do
find, however, that Ms. Grunberg thought that it did and acted upon what
she perceived to be an instruction from counsel for the party for whom she was
retained. I am also satisfied that Ms. Grunberg was not candid when she
testified that she could not remember Ms. Rowes note. She was visibly
alarmed when plaintiffs counsel put the document to her. She was clearly
surprised that he had found it.
[891] Ms. Grunberg
also did not disclose the true nature of her assistants involvement in her
report. Ms. Grunberg asserted that she was told not to do so by defence
counsel for the Province:
Q And
where in your report do you make any reference to Amy Rowe?
A I
didnt make any reference to Amy Rowe.
Q Why
not?
A I
discussed that with Ms. Johnston, because when I took this case I said to
her that I would need assistance with the first breaking down of the files, and
she agreed to that, and I was advised by her to – – that I did not need to say
that because this report was substantively done by me. All the opinions are
mine. So I was advised not to — I need not put Amy Rowes name in the report.
[892] According
to Ms. Grunberg, Ms. Rowes involvement went beyond typing and filing.
She culled through Ministry documents, assisting with the task of identifying
which documents Ms. Grunberg should review. Ms. Rowe also provided
substantive text for Ms. Grunberg to add to her report.
[893] In this
section, I have identified many problems and concerns arising from Ms. Grunbergs
testimony that affect the integrity, impartiality, and credibility of her
opinion. It is not necessary for me to determine, therefore, whether Ms. Grunberg
was actually instructed by counsel to change her opinion over a matter of
substance (i.e., the Directors conduct during the First Trial) and to withhold
disclosure about her assistant (who did more than act in a clerical function).
I will, however, express my hope that such improper conduct did not occur.
[894]
Equally troubling was Ms. Grunbergs inability to provide a clear
answer to a question put to her by plaintiffs counsel concerning the appropriateness
of the Directors position in the December 14 Statement confirming her ongoing
support for B.G.s claim for custody in circumstances where the Director
conceded it was possible that he had sexually abused the children. Ms. Grunberg
was asked whether it was the policy of the Director to support a claim for
custody by a father who may have sexually abused his children. The question was
put to her several times and in different forms. She did not provide direct
answers to questions as she attempted to justify the Directors conduct
throughout all of her dealings with the plaintiffs. I found her responses to be
argumentative and generally unresponsive as illustrated in the following
excerpt of her evidence:
Q
Is it the policy of the Ministry of Children
to support a claim for custody of a parent who may – – may have sexually abused
his children? The answer to that would be no, of course?
A Well, you say is it the policy of the
Ministry, theres no such policy.
Q In fact, would it be astounding if the
Ministry actually supported a claim for custody to a father who they knew may
have sexually abused his children?
A Well, I think the crux of your question is
may have. If it was without a – – beyond a reasonable doubt established in by criminal
terms that a person was a pedophile or a sexual offender, and the Ministry have
that information, they would not support custody for that person.
Q My question isnt about someone – –
A Mm-hmm.
Q – – where theres evidence beyond a reasonable
doubt. Im not even talking about someone where there is evidence on a balance
of probabilities. Im talking about a situation where sexual abuse is a
possibility.
A Mm-hmm.
Q Would the Ministry support custody to a father
who may have sexually abused his children?
A Well, I – –
Q The answer would be no, correct?
A There is a yes – – there isnt a yes or no
answer, sir. Im giving you my answer, which is if the Ministry had reasonable
cause to believe that children would be in danger by putting them with a
certain person, they would not put them with that person.
Q Right. And would it not be almost absurd if
the Directors position was that, Well, we dont know what happened. Its
possible that [B.G.] sexually abused his children but its also possible that
maybe they got information from somewhere else. But nevertheless its still
possible that he sexually abused his children. But given all that, were still
supporting custody for dad. Now, that would be a pretty absurd situation,
right?
A Well, I cant comment on that because that
is really not what happened in this case. So if youre asking me for a
general opinion on this supposition, of course, the Ministry would not place
children, knowingly place children in harms way. That is not what the Ministry
does.
Q Well, madam, have you looked at the
December 14th, 2011, position statement of the Director in this
case, that was filed in the first trial? Have you looked at that madam?
A In the first trial?
Q Yes.
A I
– – I dont believe I have information from the first trial. Im dealing with
what I was given.
[Emphasis
added]
[895] When Ms. Grunberg
was asked whether the Directors position to support custody for B.G. was inconsistent
with her duty to protect children, she clung to her opinion that the Director
took the correct position in supporting sole custody for B.G. even though she
admitted that she was not claiming there was no evidence that B.G. sexually
abused his children. Ultimately, Ms. Grunberg conceded that there was no
policy in place that allowed the Director to support custody to a parent who
was accused of sexually abusing his children, let alone in circumstances where
the Director admitted sexual abuse was a possibility. Nevertheless, in spite of
the concessions and admissions that she made during cross examination, Ms. Grunberg
stuck to the opinion contained in her final report that the Directors decision
to support full custody for B.G. was consistent with best practice in child
welfare.
[896] In all,
therefore, I found that Ms. Grunberg was unable to support the modified
opinion she expressed in her final report when challenged in cross-examination.
[897] Ms. Grunberg
was questioned about the Directors decision to withdraw her protection
concerns about J.P. in late March 2012. Ms. Grunberg mistakenly thought
that the Director was forced to return the children to J.P. as a result of an
order made by the Court even though she claimed not to know or understand why
the Director reversed her position. She appeared not to know that the children
were returned because the Director withdrew her concerns about J.P. and told
the Court that the children should be returned to their mothers care.
[898] When Ms. Grunbergs
cross-examination continued the next morning, however, she said that she could
explain the Directors change in position. She testified, incorrectly, that the
Ministry (she did not mention the Director) had no choice and did what it was
told. According to Ms. Grunberg, they were basically ordered to and had
no choice when the judgment came down (even though the Directors change in
position occurred over two months before the decision was issued in the First
Trial).
[899] Ms. Grunberg
also testified that the Ministrys evidence was not fully entered, on the
advice of their lawyer. She was evasive when asked to explain what evidence
the Director did not tender in the First Trial. Eventually, when pressed, she resiled,
stating that the Court in the First Trial put no weight on the Directors
evidence. This explanation is also incorrect because the Director chose not to
lead any evidence in the First Trial.
[900] There was
also inappropriate interference with Ms. Grunbergs cross-examination. At
one point, immediately following a break, her approach to answering questions
was suddenly quite changed. Ms. Grunberg became very stiff and formal,
insisting that she be taken to every document before answering questions. She
was resistant to questions designed to explore her memory. I am satisfied that
the change in her approach was the result of a discussion she had over the
break with a representative of the Province, whom I was told by defence counsel
is a Ministry employee. That individual sat in the gallery nearly every day of
the trial. He heard me repeatedly caution all witnesses under cross-examination,
including Ms. Grunberg, of what I described as an absolute rule that they
must not speak with anyone about their evidence. He also heard me caution Ms. Grunberg
before each break as well.
[901] Ms. Grunberg
confirmed that during the break, she and the Ministry employee spoke of the
need for her to insist on being shown documents before answering any questions.
Their conversation followed on a ruling I gave the previous day concerning Ms. Grunbergs
right to ask to look at documents before answering questions. The issue arose when
counsel for the Province objected to questions by counsel for the plaintiffs designed
to explore the extent of Ms. Grunbergs memory without letting her first
look at a document. I sent Ms. Grunberg out of the courtroom while the
objection was argued, and then, following submissions, ruled against it. The
Ministry employee remained in the courtroom and heard the submissions and the
ruling. He then took it upon himself to speak with Ms. Grunberg. In
hearing Ms. Grunbergs account of the conversation and in viewing the
change in her approach in answering questions after their discussion, I find
that she agreed to listen to him despite the caution and then acted upon his
advice as a means to assist her in cross-examination.
[902] Despite
the many problems and concerns I have identified regarding Ms. Grunbergs
evidence, I have not rejected all of it. When presented with correct or
additional facts and documents, Ms. Grunberg made a number of admissions,
at odds with opinions expressed in her final report. She admitted:
(a) The Manual and the Standards reflect the standard
of care required of the Director and social workers in respect of their
obligation to protect children from harm. It is the right of the child to be
safe, heard, and cared for in a way that is in the childs best interests. It
is the childs best interests that guide the duties of social workers.
(b) Sexual abuse is one of the most serious protection concerns that
exist. Childrens disclosures are a key source of information for a sexual
abuse investigation. Disclosures from children of tender years should be
accepted at face value at the start of any investigation, and should be
believed absent evidence to the contrary. The infant plaintiffs disclosures in
this case, including the specifics, should have been recorded in MIS.
(c) J.P.s calls to the After Hours unit on December 17, 2009,
reporting that the children were disclosing sexual abuse was important
information that should have been recorded in MIS. J.P.s two phone calls to
After Hours on December 17, 2009 were a request for help from the Director. The
Director should have followed up with her the next day to investigate and offer
support services. J.P. should have been told by the Director not to speak with
the children about the disclosures.
(d) It was a mistake on the Directors part not to interview Dr. Edamura.
It was also a mistake not to record his report into MIS.
(e) BT.G.s disclosures of touching involving his father in the
shower and of physical abuse, recorded in the transcripts of the VPD interviews,
are serious allegations, a serious disclosure and a social worker would be
very concerned about the safety and well-being of BT.G. if he was in the care
of his father on his own at that time.
(f) An absence of physical evidence does not mean sexual abuse did
not occur. There are many cases where sexual abuse of children has occurred in
the absence of physical evidence.
(g) A parent kissing a child in the genital area, shown in a
photograph of B.G. provided to the Director in December 2009 and introduced
into evidence in the First Trial, could be a sign of sexual grooming behaviour
promoted by B.G. When J.P. reported it, the Director should have enquired of
others whether they had observed that behaviour.
(h) Anal fissures on a four year old, reported in hospital records
concerning K.G. that were delivered to the Director in approximately
February 2010, and over which the Director challenged Dr. Edamuras credibility
and evidence in the First Trial, were unusual physical symptoms and could
indicate sexual abuse.
(i) The Directors investigation into the sexual abuse allegations
was effectively closed in December 2009, before the two older children were
interviewed by the VPD in January 2010. Given that the children had yet to be
interviewed on December 31, 2009, it was not possible for the Director to
determine whether sexual abuse had occurred by that time.
(j) The Directors investigation concerning the sexual abuse
allegations was formally closed as of February 2010.
(k) The closing intake documents prepared by the Ministrys Intake
unit in February 2010 are incorrect in reporting that there was no evidence of
the children having been sexually abused by B.G.
(l) The Director did not consider less intrusive measures before
the Apprehension.
(m) It would have been sensible for the Director to first contact
J.P. to produce the children before apprehending them. No difficulties were
encountered when the Director asked J.P. to be at home with the children on the
date of the Apprehension.
(n) She was not aware whether Mr. Strickland told Ms. Robinson
that J.P. may be suicidal or homicidal. If that was the case, then those
remarks should have been recorded in MIS.
(o) The goal of the Director in assessing and investigating sexual
abuse allegations is different than the police.
(p) It was inappropriate for Mr. Strickland to make his adverse
comments about J.P. to Sergeant Pollard.
[903] The
plaintiffs appropriately rely on these admissions as additional proof of the
standard of care and as opinion evidence supporting some of the claims they
have advanced against the Province.
XVI. THE
PROVINCES SUBMISSION CONCERNING J.P.s CREDIBILITY
[904]
The Province argued that J.P.s evidence lacked credibility and reliability.
It submits that she intentionally withheld documents, was deliberately
untruthful, and concocted evidence. The Province went so far as to characterize
J.P.s presentation in the witness box as a charade designed to curry favour
with the Court. In its written submissions, the Province said:
JP was not a forthcoming witness.
She was evasive. She regularly, and it is submitted, intentionally, chose to
give her evidence in a quiet, almost whispering voice, ostensibly in an effort
to appear more credible to the trial judge.
[905] I do not
agree. There were times when she was testifying that J.P. strayed off topic,
appeared very emotive or in significant emotional distress, or gave evidence in
a non-linear or confusing manner. Even though she said that she was receiving
counselling for her emotional distress, it was not readily apparent that her
distress has been resolved. Overall, I found that J.P. struggled to remain
composed when giving her evidence. I did not find J.P. to have been
deliberately untruthful or to have engaged in feigned behaviour or intentional
exaggeration or embellishment while testifying. I am satisfied that she sought
to provide what she believed to be an accurate account of the facts as she knew
or understood them.
[906] J.P.s
unwavering pursuit for the truth about the sexual abuse could be seen by some
who are not aware of the true facts as inappropriately relentless. When looked
at in context, however, her drive to protect her children and her distrust of
the Director are both understandable and reasonable. Quite understandably, she
became visibly upset during cross-examination when she heard the Province
state, in the absence of any expert evidence or specific pleading to this
effect, that the Province might, depending on how the evidence unfolds, take
the position that J.P. taught her younger daughter, P.G., how to masturbate in
order to advance a sexual abuse claim. I was also struck by the intense grief
and upset that she continued to suffer as her cross-examination carried on as
the spectre of that allegation hung over the trial until the Province abandoned
it in closing argument.
[907] I have,
nevertheless, taken a very cautious approach to evaluating and relying upon J.P.s
evidence when determining the liability issues. I am also mindful of the
remarks made by Rothstein J. in F.H. v. McDougall, 2008 SCC 53, that in
a civil context, a trial judge must look at the totality of evidence and
assess the impact of the inconsistencies on that evidence on questions of
credibility and reliability pertaining to the core issues in the case. My
findings of fact are derived from the objective evidence, a comparative
consideration of the legislative framework and standard of care with the
conduct of the Director and her agents as gleaned from my assessment of the
testimony given by the defence witnesses. Any reliance I have given to J.P.s
testimony is consequent upon corroboration by the evidence of others or the
objective evidence.
[908] I also
reject the Provinces complaint that J.P.s conduct in this trial was
outrageous and horrible because she repeated some of her testimony from the
First Trial concerning perceived misconduct on the part of the Director. I did
not find that J.P. did that for a tactical or ulterior purpose. The Provinces
submission fails to recognize the emotional upset suffered by J.P. as a result
of the Directors conduct.
[909] I have
also determined that there is no merit in the Provinces submission that J.P.
refused to cooperate with the Director in providing access to the childrens
medical records. There was one point in time when J.P. met with Detective
Rowley on December 23 and expressed surprise at the request for her medical
clinical records because she was becoming alarmed at what seemed to be
Detective Rowleys undue focus on her mental health and her apparent
disinterest in hearing about the childrens disclosures. J.P. did not refuse
Detective Rowleys request and responded that she would have to think about her
request in light of what she perceived to be Detective Rowleys one-sided
approach to the interview and her lack of interest in the childrens
disclosures of sexual abuse. At the same time, J.P. agreed that the VPD could
have access to the childrens records.
XVII. THE
CLAIM OF THE YOUNGEST CHILD, P.G.
A. Overview of the Claim
[910] A further
claim is advanced on behalf of the youngest child, P.G. The allegation is that
as a consequence of the negligence and breach of fiduciary duty of the Director
in permitting B.G. unsupervised access to his children, B.G. sexually abused
his younger daughter during the times that he had access.
[911] The
plaintiffs submit that proof of the claim comes from a number of sources,
including:
(a) the expert
opinion evidence of psychologist, Dr. Hughes Hervè;
(b) the expert
opinion evidence of psychologists, Dr. Claire Reeves and Mr. Colby,
which has been imported into this trial from the First Trial;
(c) statements
by P.G. to her mother, preschool teacher, nannies, counsellor Filomena
Perrotta, and to her sister in front of supervised access worker Anita
Windholz; and
(d) eye witness
testimony of nannies who observed P.G. masturbating after she was reunited with
her mother in June 2012.
[912] The
Province denies that any sexual abuse occurred. It asserts that J.P. coached
her daughter to make statements about her father in order to advance a claim
that she knew to be false, and that the claim is linked to and based upon a
number of vague, inarticulate, and for the most part, gibberish-like statements
made by P.G. As I pointed out, during much of the trial, the Province also
reserved its right to defend the case on the basis that J.P. taught her
daughter to masturbate in order to advance the claim. The Province also submits
that the expert evidence of Dr. Hervè
should be rejected because his investigation was flawed, he was not aware of
important evidence, he failed to consider important evidence that he was aware
of, he mischaracterized certain events, he inappropriately relied on findings
of fact from the First Trial, and many of his opinions defy common sense.
[913] B.G., a
third party at the instance of the Province, denies the allegation as well. He
testified as part of the Provinces case and cross-examined several witnesses
(including the plaintiffs expert), but otherwise did not lead any other
evidence to defend the allegation. Nor did B.G. take any steps to put in a case
to defend against the third party proceedings. He chose not to attend much of
the trial. He did not provide any oral or written submissions in opening or
closing argument. I wish to make it clear that his conduct does not factor in
my determination of this claim. I have decided the claim on its merits based on
the evidence that was adduced.
[914] The
Province did not object to the admission of evidence from Dr. Hervè, Ms. Perrotta,
Anita Windholz, or Ministry records concerning certain statements made by P.G. Until
closing argument, however, it objected to the admission of such evidence from
J.P. and the nannies. The Province withdrew its objection in closing
submissions, agreeing that the impugned evidence of those witnesses (all
adduced in voir dire) should be admitted subject to the Provinces
submissions concerning weight. I have, nonetheless, when assessing the weight
to be given to the evidence, taken account of the tests for admission of and
reliance on hearsay evidence discussed in R. v. Khan, [1990] 2 S.C.R.
531, R. v. Khelawon, 2006 SCC 57, R. v. Baldree, 2013 SCC 35 at para. 81,
and R. v. Badgerow, 2014 ONCA 272. I have determined that the tests of
necessity and reliability set out in Khelawon and Baldree have
been met. I am satisfied that the circumstances surrounding P.G.s statements
as well as their characteristics address and appropriately answer the inherent
dangers and concerns posed by hearsay evidence: Khan at p. 548. I
am, as Charron J. stipulated in Khelawon at paras. 62 – 63, able to
put sufficient trust in the truth and accuracy of the statement[s]; the truth
and accuracy of the hearsay statement[s] have been sufficiently tested in cross
examination.
B. Events Leading Up to the Retainer of Dr. Hughes
Hervè
[915] Dr. Hervè
was asked to assess whether P.G. was sexually abused by her father. He was
retained because of events that occurred once P.G. was returned to her mothers
care in June 2012. P.G. made statements about B.G. to her mother, to Ms. Perrotta,
to nannies that helped J.P. care for the children, and to her preschool teacher
that caused concern. As well, J.P. and the nannies also observed P.G. rubbing a
blanket against her genitalia with such frequency and intensity that they
became concerned she was trying to simulate sexual activity including
masturbation. During the summer of 2012, P.G. was observed engaging in this
conduct daily, regularly, and on average three times per day.
[916] Dr. Hervè
concluded that P.G. was sexually abused during the time when B.G. had
unsupervised access to her. Before I turn to the essential components of Dr. Hervès
opinion and the reasons why I have accepted it, I have set out the
circumstances leading up to his retainer not only for context, but because it is
reliable probative evidence demonstrating that on the balance of probabilities,
P.G. was sexually abused by B.G.
1. Incident at Supervised Access Visit in
September 2011
[917] The first
inkling that something might be amiss surfaced during one of J.P.s supervised
access visits with her children in September 2011. During play time, P.G.s
older sister, K.G., was blowing bubbles and making noise (described as
raspberries) on P.G.s stomach. P.G. insisted that she continue when K.G.
tried to stop. At one point, J.P. heard her younger daughter say to K.G., Do
it to my pee pee and saw P.G. try to pull at her pants.
[918] The
supervised access worker, Anita Windholz, believed she heard P.G. say Blow on
my pee pee. She observed K.G. continue to blow raspberries on P.G.s stomach (near
her belly button) to the point where saliva was coming from K.G.s mouth. Ms. Windholz
did not see P.G.s pants being pulled.
[919] I find
both accounts of P.G.s statements to be highly troubling. Regardless of whose
version is accepted, the context of P.G.s remarks appears sexualized because
they refer to an act engaging her genitalia. From the unchallenged expert evidence
adduced in the First Trial concerning the causes of sexualized behaviours and
their relation to sexual abuse and from evidence establishing that P.G. was aware
of her genitalia, I find both sets of reported remarks to be indicia of
sexual abuse.
[920] Nonetheless,
I accept J.P.s account of the event for several reasons. In cross-examination,
Ms. Windholz admitted that P.G. may have used the words reported by J.P. Ms. Windholz
did not attribute the same significance as J.P. did to P.G.s remarks because
she did not think that P.G. knew the name of her body parts (which, I am
satisfied, P.G. did). Ms. Windholz thought the remarks were innocent. She was
not aware, however, of the evidence given by others, including B.G. and Ms. Castro,
demonstrating that P.G. was aware of her genitalia (e.g., P.G. referred to her
pee pee when she needed to urinate). Even though Ms. Windholz testified
that she does not remember P.G. trying to pull her pants down, and thought she
would if it had occurred, she did not deny that it may have occurred. Ms. Windholz
admitted that she saw clothing being moved: P.G.s shirt was pulled up so that
K.G. could blow raspberries on her unclothed stomach.
[921] I am
satisfied that J.P. did not coach or influence P.G. to make the statement.
J.P.s access to her children only resumed in August 2011, initially to
accommodate Mr. Colbys interviews of the children. Her contact with her
children was supervised (and highly scrutinized) until the Director withdrew in
March 2012. There is no suggestion in the reports prepared by the supervised
access workers that J.P. tried to influence or coach her daughter to make the
statement.
[922] After
that, J.P.s access increased so that eventually, as part of the reintegration
plan that she and the Director agreed to, J.P. was allowed limited periods of
unsupervised access. It was not until P.G. came back to her mothers full time
care, however, that she and the nannies working for the family were in a
position to hear and observe P.G.s alarming remarks and conduct, all of which
I am satisfied is evidence of sexual abuse.
[923] The
Province relied on Ms. Windholzs evidence to refute J.P.s account of the
incident but also to challenge J.P.s credibility overall, i.e., to demonstrate
that she exaggerates when it is convenient for her case and that her testimony
is not trustworthy. This approach fails to appreciate the overall significance
of Ms. Windholzs testimony it assists the plaintiffs case in a larger
sense. Ms. Windholz testified that she observed the children engaged in
sexualized behaviours during supervised access visits, which conflicts with the
contrary position taken by the Director in the First Trial. Ms. Windholz
also reported her observation, and concern, to Ms. Allen that B.G.
inappropriately massaged his older daughter, K.G. The Director did not follow
up on her report to investigate.
2. Other Sexualized Behaviours and Remarks
[924] I turn now
to the evidence concerning P.G.s sexualized behaviours and highly troubling
remarks that presented after she returned home in June 2012.
(a) Masturbatory Behaviour
[925] J.P. and
the nannies observed P.G. take blankets and rub them between her legs and as
she did, to move her buttocks up and down. Sometimes P.G. would cover her face
and say, Go away. Go away from me, and at other times she would not. Sometimes
she would put her face down, with her buttocks raised, and then rub the blanket
back and forth in her genitalia. She was also seen panting and sweating and her
face turned red as she rubbed the blanket on herself. Sometimes she used her
hands to rub her genital area while she moved her pelvis to simulate what one
nanny described as a humping motion. P.G. was also seen tapping on her
vagina. When some nannies who asked P.G., who was almost four years old in June
2012, to please stop, they were, at times, told by P.G., Im not yet done,
or I have to, or Its my job.
[926] The
nannies and J.P. believed this behaviour to be abnormal and came to think that
P.G. was engaged in some form of masturbatory or other sexualized conduct. Throughout
the summer of 2012, they observed P.G. engage in this behaviour almost every
day, on average about three times per day. Each nanny described witnessing what
they believed to be P.G.s masturbatory behaviour and one nanny saw it some 50
times. P.G.s behaviour was not limited to her bedroom. As efforts were made to
stop it, P.G. would try to seclude herself to places where she could be alone
such as her bedroom or a bathroom. When caught, she would become quite agitated
and sometimes would yell out, I have to.
[927] Without
being asked to do so, in the summer of 2012, one of the nannies, who was
medically trained in the Philippines, recorded P.G.s conduct (carried out in
full view on the living room couch) on her smart phone without P.G. being aware
that she did. The recordings, admitted into evidence, provide objective
corroborative evidence of the graphic descriptions given by the nannies and
J.P. of the manner and intensity of what I am satisfied was P.G.s sexualized
conduct.
[928] J.P. sought
professional help to try to stop P.G. She and the nannies were advised to try
distraction techniques, which, for a time, helped, although the frequency of
P.G.s sexualized behaviour has waxed and waned to this day. It is only more
recently that P.G. has reacted more favourably to efforts to have her stop.
[929] P.G. also
blurted out to one of the nannies at a playground in August 2012, while they
were playing a game of hide and seek, Can you kiss my pee-pee, just like what
daddys doing to me? Just like this, and made a sucking motion with her mouth.
The nanny was so surprised that she asked Is that true?, to which P.G.
replied that it was and giggled.
[930] In
February 2013, the same nanny observed P.G. rubbing the blanket against her genitalia
and panting. When asked what she was doing, P.G. looked at the nanny and
responded, I am doing this and said, Can you kiss my private part and
stretch it?, stating, Its so tasty like a cupcake and then laughed. Then in
March 2013, when the nanny was towelling P.G. dry after giving her a bath,
P.G. told her, You know what, my daddy kissed my pee pee, it hurts me and
repeated it three times. According to the nanny, P.G. blurted this out without
prompting.
[931] The same
nanny also saw P.G. mistreat one of the family cats by pulling its head and
tail and choking it. According to Dr. Claire Reeves, whose evidence I
accept, physical cruelty to animals is one of a number of presenting symptoms
of sexual abuse in young children.
[932] In
February 2013, P.G.s preschool teacher (since September 2012) also observed
P.G. lying on her stomach rubbing a blanket between her legs. She testified
that while other children were sleeping, P.G. was kind of masturbating, on
her tummy and engaged in a horsey kind of motion. P.G. did not want to give
the blanket over to her teacher, saying I want it, I want it. Another time,
she saw P.G. playing with some toy horses and observed her put a toy horse down
on a toy foal, saying to herself, this is daddy, and this is baby and daddy
shouldnt be on baby. Another troubling incident involved P.G. put one hand
down a girls dress while she used the other hand to rub her chest (which was
bare under her dress).
[933] I accept
the eye-witness accounts of P.G.s sexualized behaviours and remarks. The
descriptions of P.G.s sexualized behaviours were consistent, candid, to the
point without embellishment, and corroborated by video recordings. P.G.s
statements and conduct were made without prompting. I looked for and could not
find any basis from which to conclude that the nannies and the preschool
teacher were put up to their testimony by J.P. or anyone on her behalf or that their
evidence was the result of any collaboration or collusion. I do not accept the
Provinces submission that P.G. was aware that she was being recorded and was
acting out for the nannies.
[934] The
Province concedes that P.G.s behaviour was sexualized behaviour. I had come to
the same determination as well. I do not, however, accept the Provinces submission
that P.G.s conduct was nothing more than a childs self-soothing equivalent to
a child sucking her thumb. The submission is not supported by any evidence and
in fact, is inconsistent with the opinion evidence of Dr. Hervè concerning
its compulsivity. I find P.G.s masturbatory conduct to be evidence, amongst a
constellation of other evidence, of sexual abuse.
(b) P.G.s Statements to Filomena Perrotta
[935] Filomena
Perrotta was the licensed clinical counsellor retained to help the children
with their reintegration into their mothers care. She has extensive experience
working with children and families, including children who have suffered sexual
abuse. Ms. Perrotta was called to explain some of her interactions with
J.P. and the children during treatment, not to provide expert opinion evidence.
Ms. Perrotta testified about certain remarks she heard P.G. make in
treatment sessions. The Provinces submission was that I should not rely on Ms. Perrottas
evidence describing what she said were P.G.s unprompted statements about her
father in determining whether P.G. was sexually abused because the counsellor
unduly influenced P.G., for example, when she told her and her siblings at the
outset of their treatments sessions that her father was bad, or that Daddy
did bad things.
[936] I will
start this part of the discussion by stating that I accept Ms. Perrottas
evidence that P.G. demonstrated her knowledge of her body parts including her
genitalia, and that P.G. did understand that another person touching her
genital area was bad.
[937] Otherwise,
I agree with the Province that I should not rely on her evidence, although not
for the reasons it advances. My decision has nothing to do with any issue or
concern about Ms. Perrottas credibility because I found her to be a
highly credible witness who provided an objective, non-partisan, and accurate
account of her interactions with J.P. and the children. Ms. Perrotta was
not influenced by the findings in the Reasons because she had not read them
when she met the children and also, she followed her standard practice to not
ask for details concerning the abuse.
[938] My concern
is that when Ms. Perrotta first met with the children, and although she
did not mention sexual abuse, she believes she may have told them that she
understood that their father had hurt them and explained that they were now
safe. She also discussed good touches and bad touches with the children. I
accept that Ms. Perrotta made these remarks as part of a bona fide
treatment plan and not in any way to influence the children. Yet, when
assessing the merits of the claim, I have decided not to give any weight to
this particular aspect of Ms. Perrottas evidence concerning P.G.s
statements to her in relation to her father in order to rule out the
possibility that my determination is based, even in part, on statements by P.G.
that might have been influenced in any way.
(c) P.G.s Statements to J.P.
[939] The
Province also submits that I should not rely on J.P.s evidence concerning the
statements P.G. made to her about B.G. The Province argues that J.P.s conduct
in recording one of her daughters statements not only reflects adversely on
her overall credibility but is one of many indicators of her overall dishonesty
and her efforts to fabricate this part of the claim.
[940] I have
decided not to rely on J.P.s uncorroborated evidence in determining whether
P.G. was sexually abused, but not for the reasons advanced by the Province. My
concern is with the reliability, not the credibility, of the evidence in
circumstances where J.P. was highly distressed by her daughters conduct and
remarks. For reasons I set out in a previous section concerning the overall
credibility of J.P.s evidence, where my assessment of the merits of the
plaintiffs claims involves J.P.s evidence, I have looked for corroborating
evidence before giving it any weight. For example, J.P.s evidence regarding
P.G.s statements connecting her masturbatory behaviour to her father is
corroborated and consistent with other evidence, and I have determined it is
reliable.
[941] I now wish
to address the Provinces submissions concerning J.P.s credibility in respect
of the sexual abuse claim. I have considered and rejected the Provinces
submission challenging J.P.s credibility on the basis that she did not produce
a tape recording of one of her conversations with P.G. and did not produce clinical
records from the HEAL Clinic, a medical facility, regarding medical
examinations of the children until she was giving evidence at trial.
[942] In June
2012, after the children returned to their mothers care, and while J.P. was eating
a meal with her daughter, P.G. told her mother that daddy eats my pee. This
was the first time P.G. had made that statement to her mother. J.P. was
horrified. She left momentarily to get her smartphone to record her daughters
comments. When she returned, she turned on the smart phone and asked her
daughter, What did you say about daddy? to which P.G. said, daddy says eat
my pee pee, he said my pee pee. J.P. then said, what? to which P.G. repeated
without any hint of prompting,he said my pee pee and he says to eat my pee
pee. I have listened to the tape recording. It is short. The questions she
asked P.G. were not leading or suggestive. J.P. did not stray from asking her
daughter to repeat what she said. I do not agree with the Province that J.P.
was badgering or coaching her daughter.
[943] Nor do I
agree that the tape recording demonstrates J.P.s dishonesty or lack of
credibility. If anything, the circumstance in which it was disclosed during
trial demonstrates the opposite. J.P. volunteered during her cross-examination
that she had made the recording and offered to look for it and to produce it if
she could find it in circumstances where late production of potentially
critical evidence could jeopardize her testimony and possibly P.G.s claim. Had
she been dishonest or intended to conceal evidence, she would not have revealed
the tape recording in circumstances where she could be accused of speaking to
her child about a sexual abuse disclosure, particularly when her previous
conduct in December 2009 had been so heavily criticized by the Director and was
the subject of caution by Dr. Reeves. In looking at what transpired, and
while not in any way condoning J.P.s decision to ask her daughter to repeat
her statement, I am satisfied that in the circumstances that J.P. found herself
in at the early stage of the childrens reintegration into her care, following
a protracted, highly divisive, and acrimonious battle with the Director, an
already highly distraught J.P. was now faced with a further shocking disclosure
of sexual abuse. Her decision to record her daughter showed poor judgment, but
at the same time her response must be viewed in the ongoing and highly emotive,
distressing, and often chaotic circumstances present at her home in those early
days (e.g., where J.P. had to deal with the childrens violent behaviour and
emotional abuse towards each other on a daily basis).
[944] Nor do I
draw any adverse conclusion regarding J.P.s credibility, which the Province
says I should, because she did not tell Ms. Perrotta about the statement
P.G. made during dinner or the audio recording. J.P. met with Ms. Perrotta
and P.G. for one-half hour during the day (and also separately with the other
children) on June 23, 2012, before the remark was made at dinner. J.P. did
not meet with Ms. Perrotta again until June 30. Ms. Perrottas
evidence and records show that in her interactions with Ms. Perrotta, J.P.
was confronted with a host of significant, difficult, and stressful issues and
problems concerning all of the childrens reintegration into her care. There is
nothing from the timing of their meetings and the time and date of P.G.s
remark from which I can conclude or infer any ulterior or mala fide
motives or misconduct on the part of J.P.
[945] The
Provinces further criticism of J.P. for not reporting P.G.s statements and
conduct to the police overlooks what I view to be J.P.s reasonable
apprehension for an independent and objective response. By that time, the
nature of the VPDs initial investigation as well as Detective Rowleys
injection into the restraining order proceeding in Provincial Court in July
2010 was well known to J.P. J.P. did report the incident to a VPD officer
following up on her complaints about Detective Rowleys handling of the initial
investigation, but there was no follow up. There is no evidence that the VPD
investigated. J.P. cannot be criticized for failing to pursue it with the VPD
or to turn to the Director to assist and investigate given their past response,
the Directors failure to investigate the September 2011 statement in front of Ms. Windholz,
and the Provinces rejection of Dr. Hervès report.
[946] I also
reject the Provinces submission that J.P. hid relevant documents from HEAL Clinic
in order to avoid disclosure of evidence adverse to P.G.s claim. In September
2012, Dr. Edamura referred the children to HEAL Clinic to be physically
examined for evidence of sexual abuse. J.P. wanted to be sure that B.G. did not
sexually abuse the children while in foster care. The examination took place in
January 2013. The Province learned of the records (which record that on
examination, there was no physical evidence of sexual abuse), requested their
production from plaintiffs counsel prior to trial, but did not press for them.
[947] J.P. did
not seek to thwart production of the HEAL Clinic records. She signed a consent
form for the production of the HEAL Clinic records before trial. J.P.s counsel
did not originally produce them because he thought they were irrelevant since
they neither confirmed nor rejected sexual abuse. When the issue arose at trial
through a voluntary disclosure made by J.P. during cross-examination, her
counsel readily conceded that his decision was an error. J.P. consented to
their immediate production. J.P. also candidly admitted that the HEAL Clinic
doctors told her the chances of finding physical evidence of sexual abuse was
low. I was satisfied with her explanation concerning the care that she and the
medical staff took to ensure a calm environment for the examinations. The
Province did not object to late production of the records nor asserted that it
was prejudiced by it. In fact, the Province sought their admission into the
record. Whether the examination itself can be said to have caused harm, as the
Province suggests, is not an issue for which evidence has been adduced.
[948] I am also
unable to agree with the Provinces submission that the contents of the HEAL Clinic
records would have affected Dr. Hervès opinion. I find there is nothing
about them to disrupt his opinion concerning coaching and fabrication or
untoward influence. Moreover, the results of the HEAL Clinic examination showing
no damage or alteration to P.G.s genital area does not rule out sexual abuse
caused from oral or other genital contact that did not result in penetration.
[949] I also do
not agree that an adverse inference should be drawn from J.P.s failure to call
Dr. Edamura to testify about his consultation with P.G. (in what appears
in his records to have been in August 2012) because it was he who made the
referral to the HEAL Clinic. His records are contained in the HEAL Clinics records,
which were admitted as business records at the insistence of the Province. The
plaintiffs did not attempt to rely on his records to prove the sexual abuse
claim. If the Province had wanted to rely on his records and his interaction
with J.P. and P.G. to prove any part of its defence, then it could have called
him. Otherwise, I find nothing on the plain reading of his records to support
the submission.
[950] I also
reject the Provinces submission, which it said was based on common sense, that
J.P.s evidence concerning her observations of P.G.s masturbatory behaviour
was not truthful because if she had been doing it as much as the witnesses say,
then HEAL Clinic should have found physical evidence of it. This submission is
not supported by any evidence and is entirely speculative. It is not an
appropriate application of judicial notice to find that rubbing a blanket on a
childs genital area, particularly when she was, as some of the evidence
showed, wearing underpants, can be detected on examination. That is a matter
for which evidence is required, and in particular, medical evidence.
[951] The
Provinces submission that some parents would not wish to subject their
children to any further examinations to investigate sexual abuse particularly
where the medical advice was that the likelihood of finding any physical
evidence was low at that time is well taken. Yet, it is also understandable
that parents who finds themselves in the circumstances of this case existing at
that time would want to determine the full extent of any sexual abuse in order
to determine an appropriate treatment regime, especially in circumstances when
that parents youngest child is engaged in regular and intense masturbatory
behaviour.
[952] I do agree
with the Provinces submission that the records and some of J.P.s testimony
about them demonstrates J.P.s fixation with the sexual abuse allegations and
her reluctance to accept that there is no physical evidence of sexual abuse. While
it bears on the reliability of her evidence it does not detract from the
independent evidence that proves on a balance of probabilities that P.G. was
sexually abused by B.G. while he enjoyed unsupervised access with the children.
C. Dr. Hervè
[953] Dr. Hervè
is a highly qualified forensic psychologist whose clinical work focuses
primarily on the assessment of minors. His expertise includes forensic assessments
to determine the risk or occurrence of sexual abuse. He was retained to
investigate whether P.G. had been sexually abused by her father. The Province
did not object to Dr. Hervè being tendered as an expert in the field of
forensic psychology with respect to allegations of sexual abuse concerning
children. His report was tendered into evidence and certain excerpts from it
are contained in this section. The various excerpts I have set out from his
trial testimony are from his evidence given during cross-examination.
[954]
Dr. Hervè approached his investigation with great care. He
considered multiple hypotheses. He was fully alive to the possibility that P.G.
may have been coached or influenced by her mother or siblings because children
are, as he put it, particularly susceptible to the effects of leading
questions and to suggestion. He also considered the possibility of an unintentional
false allegation. The interviewer, he said, must have knowledge of the memory,
language and expressive abilities of children of different ages:
Q The issue of contamination, can you elaborate on
that a little bit more?
A So contamination
refers to someone’s memory being influenced by external factors. What we know
about this is that one of the factors related to age is that if children are
interviewed in a leading or suggestive fashion, then theyre more susceptible
than adults to suggestion, which can contaminate, influence, distort their
memory. And this is – -this is – – the younger the child, the more this is
true.
And it’s only – – it doesn’t mean that their memory
it only means that
if a child is poorly interviewed or talked to, then the memory can be
contaminated. But a child whos interviewed properly, that doesn’t occur.
[955] Dr. Hervè
explained that government agencies and professional organizations have recently
developed standardized training procedures for child sexual abuse
investigations to be applied by those responsible to interview children. In
this case, he applied the Step-Wise Interview method (developed by his
mentor, Dr. John Yuille) which is adopted by professionals [including
police officers] in every province in Canada, and adopted as the interviewing
standard in England and Wales and in a number of states in the United States,
as well as the U.S. army. The Step-Wise interview standard was developed to
provide a consistent framework in which to obtain a childs evidence and to
avoid the dangers inherent in the interview process, which Dr. Hervè
described in his report dated October 31, 2012 as follows:
·
Interviewers too often use leading questions, to which children
are particularly susceptible;
·
Interviewers do not allow children to take their time and to
describe events in their own words;
·
Interviewers are usually not trained investigators and, as a consequence,
they do not obtain enough information to validate the childs account;
·
Interviewers often have only one hypothesis in the interview
setting and this hypothesis blinds the interviewer to obtaining all the
relevant information from the child;
·
Interviewers may use language, which is inappropriate for
children (particularly with preschool age children).
[956]
Dr. Hervè testified that the Step-Wise program required him to
establish rapport with P.G. and to develop a base line of her cognitive
behaviour and her memory for recent events:
The Step-Wise protocol is a
protocol that’s used with a variety of children including children with
developmental delays.
When you’re working with
children, either very young children or children with language such as in this
case, delays, what you want to try to do is assess what the issues are during
that rapport baseline. That’s why I, when I – – when we were looking at the
videos, I was talking about assessing the baseline and seeing what’s her
ability to recall something in the recent past and more distant past, how she
responds to different types of open-ended questions, her colours, her concepts.
And the protocol is designed to be able to be used with a wide variety of
different individuals.
[957] To prepare
for the interview, he sought appropriate timeline information about P.G.
including her preschool, recent birthday, cognitive development, and her
understanding of concept and language, body parts, and her nap and feeding
times, all in order to inform his approach. In obtaining pre-interview
information and during the interviews themselves, he followed his standard
practice of asking open-ended, as opposed to leading, questions.
[958]
In reading his report, in listening to his testimony, and from watching
the videotapes of his interactions with P.G., I am satisfied that Dr. Hervè
applied the Step-Wise protocol and that he specifically looked for evidence of
prompting, fabrication, and coaching throughout. He also considered the
possibility of false allegations due to a combination of specific suggestions
made to P.G., known as stereotype induction, which he described in his
testimony:
A Stereotype induction is some children who always hear
negative things about somebody may develop a particular view of that person
even though nothing – – even though they’ve had very limited interaction with
them.
And so in this
case, so if they hear that this person is always a bad individual they can create
a memory of something bad that that person did, right? And so if you mix that
with messages about sexuality and so on, then yes, there is a possibility of
this type of information leading to a suggestion that could contaminate memory.
[959] Once Dr. Hervè
obtained background information, he met with P.G. alone on two occasions. The
first interview took place on September 18, 2012 and the second approximately a
month later on October 11. In his report, he described the goal for each
interview, his approach, and the events that occurred during both.
[960]
The goal of the first interview was to provide P.G., through an indirect
approach, the opportunity to discuss abuse she may have experienced. Once
rapport was established and baseline information obtained, Dr. Hervè asked
P.G. who her father was, to which she said, spontaneously, that her father was
eating and biting her pee pee, and as she did, she turned sideways in her
chair and pointed to her buttock/genital area. Given the importance placed on
the interview by Dr. Hervè, especially P.G.s spontaneous association
between her genitalia and her father, I have set out Dr. Hervès report of
the first interview (which I found to be corroborated by the videotape of that
interview):
The goal of this interview was to provide [P.G.] an
opportunity to discuss any abuse that she may have experienced. After
establishing rapport and some baseline information, the issue of abuse was
probed indirectly. First, she was asked about good things and bad things that
may have happened to her. This did not trigger any abuse-related information.
Second, she was asked about people in her life, as well as people she likes and
does not like. These probes did not trigger any abuse-related information.
Finally, she was asked who her father was. At this time, she was sitting on a
chair and she spontaneously stated in succession that
my dad was eating my
pee pee like this, he was biting my pee pee like this, he eat my penis like
this.
When [P.G.] made the first statement (
my dad was eating my
pee pee like this), she turned sideways in the chair on her right side, and
pointed backwards with her left hand to her buttock/genital area. When she made
the second statement (he was biting my pee pee like this), she further turned
over (i.e., her body was slightly facing downward on the chair) and again used
her left hand to point to her bottom, grabbing her bottom in the process. When
she made the third statement (he eat my penis like this), she fully turned
around (i.e., was now lying face down on the chair), put her face/mouth against
the back of the chair and made an eating gesture and sound (as if mimicking her
father’s alleged behavior towards her when engaging in the act she was
describing). [P.G.] then got off the chair. When asked what else her father
does, she stated he does like this while mimicking the behaviour by eating
the back of the chair. When asked what she just did, she stated he was doing
like this and repeated the act (i.e., mimicked the behaviour by eating the back
of the chair), adding he do that. When asked if she could use her words to
describe what that is, she walked away. When subsequently asked what she said
her dad did, she again stated that he was eating my pee pee like this while
mimicking the eating behavior against the back of the chair.
[P.G.] did not provide any
further details when asked more specific open-ended questions (e.g., how she
was sitting when this happened, when this occurred, where this occurred). She
subsequently expressed and presented as tired and disinterested in continuing
with the interview. Before concluding the interview, she was asked if
anyone/someone else touched her pee pee, to which she responded in the
affirmative. When asked who, she stated daddy. When asked if someone else did
that, she talked about another unrelated topic.
[961] The
purpose of the second interview was to find out if P.G. could provide further
information about the alleged sexual abuse and to gain a better understanding
of her knowledge of body parts. Within a minute of the interview getting
underway, P.G. said, spontaneously, so, daddy eat my pee pee
and he kissed my
penis
and he eat my penis. She made these statements while sitting in a chair
and pointing to her genital area either with her left hand or both hands. When
asked what did daddy do, she again stated that he, he eat my penis. When
asked if her father did something else she responded in the affirmative but
gave no further details. When taken to body charts for boys and girls, she
labelled both female and male genitals and buttocks as penis, but was
otherwise accurate in her labelling of other body parts. Overall, Dr. Hervè
opined that while there was some lack of clari[t]y about the exact nature of
the alleged behaviour (i.e., whether the alleged perpetrator was using his
mouth on her vagina and/or buttocks), her statements were clear in terms of the
perpetrator using his mouth on her private parts.
[962] My review
of the videotapes of the interviews confirmed that during his two sessions with
P.G., Dr. Hervè engaged in various methods to test for coaching. Through
distraction and other techniques, it was clear that there was – in her
association with her father – definite consistency in P.G.s unambiguous spontaneous
statements and physical gestures concerning her genitalia. P.G. also made
clear, unambiguous statements linking her father to sexual references. In
watching the videotapes of her interviews with Dr. Hervè, I was struck by
how effortlessly and naturally her statements and gestures were made without
any demonstrable change in her demeanour. P.G. did not hesitate or otherwise
appear to try to recall something that she had been coached to do. I found her
demeanor and approach consistent with Mr. Colbys evidence that children
who disclose sexual abuse often do so in a nonchalant manner.
[963] Upon the
completion of his investigation, Dr. Hervè set out three potential
hypotheses to account for P.G.s statements, masturbatory conduct, and physical
gestures: (a) she was coached by a trusted adult; (b) she was unintentionally
making a false allegation due to a combination of specific suggestions made to
her; or (c) that P.G. was sexually abused. He ruled out the first two
hypotheses and concluded that it was more likely than not that P.G. experienced
something sexual in nature and that P.G. was sexually abused by her father
when he enjoyed unsupervised access between mid-2010 and mid-2012.
[964] Dr. Hervè
reached his conclusion through an analysis of the medical science concerning
childrens developmental memories and the use of certain analytical and
investigative tools employed by forensic investigators in sexual abuse
investigations in North America and other parts of the world, including the
United Kingdom and Australia.
[965] A
description of the various types of memory that people develop as they grow
older is necessary in order to better understand how Dr. Hervè was able to
determine the temporal aspect of the sexual abuse of P.G. and her disclosures.
[966] Narrative
memory refers to memory we use when recalling a past event; it is
reconstructive as opposed to reproductive in nature. It is affected by recall
context such as current events, emotional state, and leading questions and as
a result will vary from one retelling to the other. Memory of a specific event
is episodic memory. Important events are more likely to be recalled in detail
for longer periods than unimportant or mundane events. Script memory, which
refers to recall of the gist or central features of an event such as a
typical morning routine such as brushing teeth or the route to work. Script
memory can be engaged for repeated acts of sexual abuse. Episodic and script
memory are often distinguished from the language used to described incidents in
the past: episodic memory is expressed in past tense and in specific terms (he
did this, he did that) while script memory is usually expressed in conditional
language (such as he would do this or that or does this or that).
[967] Dr. Hervè
explained that generally speaking, episodic memory does not emerge until
sometime between 18 and 30 months of age, with the average put at 24 months. He
opined that emergence of episodic memory between 18 and 24 months is the
exception, not the rule. A child who lacks episodic memory is said to have infantile
amnesia. Development of episodic memory is multifaceted and reflects
neurocognitive developmental states associated with attention, cognitive
complexity, language and memory. For individuals such as P.G., who suffer from
developmental delays, the emergence of episodic memory is delayed. Script
memory usually first appears in children who are between 3 ½ to 4 years old. In
considering Dr. Hervès evidence and watching the videotapes of his
interview with P.G., I took Dr. Hervès evidence to mean that P.G.s
statements made in conjunction with her physical gestures reflect at various
times delayed episodic memory as well as script memory.
[968] Dr. Hervè
also said that regardless of age, once their memories are formed, children
provide the same level of accuracy as adults. He explained, If a child is
properly interviewed and is trying to tell the truth, he said, on the average
the accuracy of the childs recall will be above 80%, with the accuracy of
preschool children being slightly less.
[969]
Dr. Hervè considered P.G.s age (born September 4, 2008 and just
under two years old when placed at Ms. Castros foster home) and the
nature in which young children develop memory. He found P.G. showed signs of
delayed development, which in turn explained the delay in the development of
her episodic memory. His evidence concerning P.G.s delayed development is
supported by many witnesses. When he interviewed P.G., he found her to be
functioning at the level closer to a three year old and not her then age of
four. He described P.G.s developmental memory in his report in this way:
With regard to the timing of
this alleged abuse, [P.G.] was unable or unwilling to provide information that
could be used to determine when or where this alleged abused took place. As
detailed above, memory about previously experienced events (episodic memory)
emerges between 18 and 30 months of age, with episodic memories between 18 and 24
months of age being the exception, not the rule. Given the relationship between
language development and episodic memory and [P.G.s] apparent delays in
language, she is unlikely to have episodic memories prior to age 2 years. Since
[P.G.] was born on 2008-09-04, she would have been almost 16 months of age when
removed from the home on 2009-12-30. Accordingly, if [P.G.] was in fact
sexually abused, the abuse that she alleges/recalls could only have occurred at
the earliest two months after her placement in foster care, although it is more
likely that it occurred several months thereafter. Since she has had no
access to her father since being moved back to her mothers care in June 2012,
then if [P.G.] was in fact sexually abused by her father then the alleged abuse
is most likely to have occurred sometime between mid-2010 and mid-2012.
[Emphasis
added]
[970] When
considering the relationship between P.G.s memory and the timing of her
disclosures, Dr. Hervè was attuned to the possibility of external
influence. He also considered the possibility that P.G.s memory was enhanced
through substitute information provided by or gleaned from others, even
though the possibility of contamination from substitute memory increases as
children age and experience more events and gain increasing knowledge in the
world.
[971] Dr. Hervè
also employed methodology known as Statement Analysis (SA). It is an
analytical tool borne out of a procedure designed over 50 years ago, shortly
after World War II, and used by forensic investigators in North America,
Europe, the United Kingdom, Australia, and Israel in cases involving a childs
uncorroborated statement where sexual abuse has been alleged or is suspected.
In the analysis, forensic investigators speak of the credibility of the childs
impugned statement or disclosure when they engage in SA. In doing so in this
case, Dr. Hervè was not endeavouring to usurp the Courts role in
evaluating P.G.s credibility (which was the concern raised in a case cited by
the Province: R. v. S.C.H. (1995), 3 B.C.L.R. (3d) 300 (S.C.)). I found
there is probative value in his evidence because when carrying out the
analysis, the investigator considers the traits and other age appropriate
features (such as the childs behaviours and the spontaneity and coherency of
and detail provided in the statement) for the particular child as well as the
adequacy of the interview.
[972] Acknowledging
that a statement may appear to have all of the features of credibility and
still be untrue in the face of a competent interview, Dr. Hervè opined
that [v]ery few children have this ability, however, and the younger the child
the more this is so. From this evidence I am satisfied that from P.G.s age
and delayed development, she was not capable of deceiving Dr. Hervè in what
I have determined were the highly competent interviews and investigation that
he carried out.
[973]
As part of the background, Dr. Hervè was made aware of reports of
P.G.s masturbation since returning to J.P.s care. He was struck by the
emergence of that conduct with the onset of her disclosures about her father.
He ruled out the possibility that her behaviour was exploration engaged in by a
young child as opposed to sexualized behaviour. Dr. Hervè also addressed
and ruled out the prospect that P.G.s statements and conduct were modelled
after any of her siblings sexualized behaviours or as a result of their
influence:
Of particular concern is her masturbation since returning to
the care of her mother. Not only did this behaviour emerge in parallel with her
allegations, but from the evidence made available to me it also appears
to be age inappropriate and very ritualized (i.e., it is consistent from
one episode to the other). This suggests that this was learned behaviour from
one source rather than reflecting sexual development/exploration (i.e., a child
who has discovered masturbation on her own would engage in the behaviour in
different ways as she is exploring this new experience). The similarity between
her masturbation and her spontaneous gestures when describing her abuse in the
first instance is also of concern (i.e., in both cases she was face down/on her
stomach).
[Emphasis
added]
[974] Masturbatory
behaviour by children is not, on its own, diagnostic of sexual abuse. According
to Dr. Reeves unchallenged opinion evidence, masturbation is a factor
amongst a constellation of a number of factors to consider in assessing whether
or not sexual abuse occurred.
[975] Dr. Hervè
was clear that in this case, the compulsive nature of P.G.s masturbatory
behaviour, i.e., forcefully engaging in the behaviour and difficult to
distract, is atypical for a child P.G.s age. Paired with what he described as
authentic, persuasive, and repeated references to sexualized behaviour and to
her father, her masturbatory behaviour, he said, lends credibility to the
sexual abuse claim.
[976]
Dr. Hervè also identified similarities between the behaviour observed
by the nannies (as depicted in the videos) and P.G.s gestures he observed in
his interviews:
Q And in
[P.G.s] case, there there could be many other – – or other explanations for
the behaviour or causes of the behaviour
A Youre
– – I was waiting for you to get – – yes, in any children there could be – – we
have to consider the multiple hypotheses. In – – in this case, there was a
point – – a noteworthy point for me was that the — the behaviour that she
demonstrated on the videos, so the ones that I reviewed, were similar to the
behaviour she demonstrated to me in the interview – – thats spontaneously
demonstrated to me in that first interview when she made the allegation, in
terms of she turned around on the chair and started depicting the behaviour she
was describing. And so in both the videos of the masturbation at home and then
the – – the behaviour, its face down, hips up, and looking — looking in that
position. So thats another – – And so thats another piece of the – – another
analysis that I made.
Q Yes.
But you were saying that the – – that the – – the gestures that you observed
her engage in in the first time were – – were reflective, I guess, or – – or
behaviours that were similar to the – – to the masturbation.
A I should clarify, not gestures, just the body
position was the same.
Q But – –
I mean, thats – – thats quite a different thing, the body position, as
opposed to the actual behaviour; right? …
A Yeah,
and I – – and I should clarify. I dont want to – – I dont want to mislead
anybody. The – – the combination of her statement in that – – in the September
18th – –
Q Mm-hmm.
A – – interview and her
spontaneous behaviour in that – – in that interview are the – – are the two
variables together that I weigh the most. The masturbatory – – all the
stuff related to the masturbatory issues is just supporting that information,
but its – – its weighed less, right? That in itself – – sorry, that being the
masturbatory behaviour, with – – in itself says minimally, it just says potential
stress response. Its when taken into consideration with what I view as the
significance of the spontaneous behaviour in the interview, it just supports
that.
[Emphasis
added]
[977] Thus, P.G.s
masturbatory behaviour formed but was not the basis of Dr. Hervès opinion
that P.G. was sexually abused. In his testimony, he explained that it was the
spontaneous association of P.G.s statements about her father and the nature
and consistency of her sexualized gestures in front of him, triggered by the
words daddy or father, together with his analysis of P.G.s developmental
memory that are at the heart of his opinion. In his opinion, a young child such
as P.G. cannot be coached to act in this way. He said that while a young child
may be coached in a particular statement, it is unlikely that such a child
could also be coached into making spontaneous gestures. Preschool children, he
explained, are unlikely to fabricate allegations of sexual abuse. He found the
words used by P.G. to be unsophisticated. If she had been coached to make them
by an adult, then adult phrases or words would eventually be disclosed. He
found P.G.s words to be consistent with her delayed linguistic abilities,
pointing out the importance of her words being repeatedly accompanied by those
gestures.
[978]
Children who are coached by adults express themselves in adult language
or mannerisms. Here, P.G. related her gestures (upon which Dr. Hervè
placed great emphasis) and remarks as a three to four year old child would do.
In the following excerpt from his trial testimony, Dr. Hervè explained the
significance of the combination of the spontaneous gestures with P.G.s words:
A So a possible source of the statement that
was made to me, that Daddy eat my pee-pee and those related statements that
were made to me in those interviews. I want to make it clear that, in line, I
think, with your questioning, is that there are multiple hypotheses for this.
Even if I – – let’s say that
everybody told me that this happened spontaneously and that’s all that I had
and no one talked to the child about this, theres still very limited
statements here. So is it that she may have overheard somebody, is it that she
may have heard this being said by a sibling, is it that- – that she made it – –
that she made it up, and so on. It’s very hard to differentiate these different
hypotheses.
And if that’s all that I was
relying on, I – – that’s all that could have been said, is that [P.G.] would
have– I would have said something to the effect of, P.G. said X, and there’s
just too many competing hypotheses to be able to really make sense of this. And
for me, what was – – the significant part of the — of what was told to me
during that interview was not as much what she said but the consistency of what
she said with her behaviour, turning around, and– and eating at the chair. And
a child that is – – has limited verbal skills, behavioral manifestations of
what they’re trying to explain is not uncommon.
So behavioral explanations,
non-verbal, is a way for children to communicate. And that, to me, is – –
suggests against coaching.
Now, having said that – –
sorry, let me clarify. It suggests against coaching because it’s one thing to
coach a child to make a particular statement, or it’s one thing for a child to
overhear things and then to incorporate that into their memory, and it’s
another thing to teach a child the behavioral representation of what she’s
saying, so the – – the eating behaviour and — and the moving on the back of
the chair.
Q Okay. Thank you. And then – – so just to
continue that comment that you’re making, then, about the gestures, though, I
take it that the – – the reason why you are saying that the gestures are
further – -lend further support to your – – your opinion hypothesis is because
the gestures incorporated something to do with – – with eating. That’s – –
that’s the – – connection.
A Not just eating. So if the child would
have said something – – if [P.G.] would have done something like, Daddy was
eating my pee-pee and just sit down and go, Yeah, yeah, yeah, it would
suggest that she’s just potentially describing the – – what she means by
eating. It was the turning around, going onto the – – the chair and – – and
showing what was going on. And not only did she do it that time, but then when
she walked away and I came back and asked [her] to tell me more, she went back
to the chair and again did it, suggesting that’s how she’s describing her
experience. And so that – – the combination of what she said with that was more
telling to me.
[Emphasis
added]
[979] In
identifying B.G. as the likely perpetrator of the sexual abuse of P.G., Dr. Hervè
relied on P.G.s singular identification of her father as the perpetrator as
well as her ability to distinguish family members during the interviews. He
deliberately used the word father in place of daddy at times (to check for
coaching or external influence) and found that when the former word was used,
P.G. readily identified him as daddy. He knew of the Courts previous finding
that B.G. had sexually abused the older children, but he was careful to
distance himself from it when carrying out his investigation, instructing
himself that previous findings and allegations do not mean that B.G. did it
again.
[980] In
addition to considering the spontaneous nature of P.G.s gestures in their
interviews, Dr. Hervè also considered the nature and context of
information contained in P.G.s statements to him. He determined her use of
language was coherent and appropriate for her developmental level, but in spite
of this said that the content of the information provided by P.G. was not age
appropriate (i.e., the acts she described her father performing on her). According
to Dr. Hervè, P.G.s use of age inappropriate language, paired with the sexual
content of the conduct she attributed to her father indicated authenticity.
[981] Dr. Hervès
report was sent to the Province shortly after it was released. His opinion was
rejected. Yet, the Province did not tender any opinion or lay evidence to rebut
or respond to the evidence given by Dr. Hervè other than to call B.G. to
deny the allegation and to call his mother who denied that her son had
opportunities to be alone with his daughter. Instead, the Province sought to
dismantle Dr. Hervès opinion evidence through cross-examination and in
argument with submissions that were said to be grounded in common sense. For
example, the Province: (a) characterized Dr. Hervès evidence concerning
P.G.s physical gestures and the weight he put on them as a leap that defied
common sense; (b) argued that if P.G. had been masturbating with the degree of
frequency described by J.P. and the nannies, then as a matter of common sense,
there would have been physical evidence of it at or near her genitalia; and (c)
argued that if P.G. had been sexually abused by her father, then based on
common sense, she would not have been happy to see her father. The difficulty
for the Province is that none of its common sense submissions were premised on
evidence and some of them were in direct conflict with expert evidence adduced
as part of the plaintiffs case.
[982] For
instance, the Province submitted that P.G.s seeming lack of distress when
discussing her father or during supervised access visits showed that she was
not sexually abused. That submission overlooks the unchallenged evidence of Mr. Colby
and Dr. Reeves to the contrary (which I accept).
[983]
According to Mr. Colby, a childs emotional and dependency needs
can lead them to build and maintain a positive relationship with the abuser:
Q Now, is
it – – in your experience is it typical or normal
to show positive feelings
towards a parent who had violently – – apparently violently and sexually
assaulted them?
A Well, I think were onto a
bigger topic, and it has to do with the loyalty and the needs of a child. And I
have found in my professional experience that the emotional and dependency
needs of children will lead them at times to build and maintain a positive
verbal and interpersonal relationship, even with individuals who have been
found by the courts and have been accused of serious physical – –
Physical
and sexual abuse of children. So positive statements regarding a parent are not
– – do not mitigate against negative events having happened.
[984] Dr. Reeves
testified that young children are usually not able to understand that sexual
abuse is not normal or appropriate behaviour. Her opinion is borne out by Ms. Perrotas
testimony (which I accept) that P.G. did not understand that touching her
genital or private areas would be bad.
[985]
In my view, there is also no merit to the Provinces submission that
P.G.s ambivalence in her gestures and statements in front of Dr. Hervè
means that she was coached. Her ease of presentation is neutral. According to Dr. Reeves,
disclosure of sexual abuse is a process and not an event for a young child:
But I wanted that to be
understood by the court. And I say in here disclosing incest and child sexual
abuse by a very young child is a process and not an event. But its just so
absolutely true, and yet we expect our little children to go in and talk to,
you know, police officers and so on, and people they do not know, and we expect
them to just spill their little hearts out, but theyre not going to do that,
and that’s expecting an awful lot of a little child.
. And – – so I wanted to
bring out the child sexual abuse accommodation syndrome and why children don’t
just spill their guts out type thing, like we might as adults. But, you know,
when you think about it – – when I think of all the adult survivors, so many of
them, they have told me the very first time they told anybody, and they’ve been
holding this in like – – the oldest one being 84.
[986] The
Province also asked me to accept findings from other decisions, including
decisions of this Court, founded on fact specific evidence, in support of its
defence that no sexual abuse occurred. For example, they asked me to accept a
finding from another case – that a childs favourable relationship with her
father was an important fact leading to the determination that sexual abuse did
not occur – as a holding applicable in this case, and from there, to conclude
that P.G.s positive response to B.G. during access visits means she was not
sexually abused. I am unable to do so. Each case turns on its own facts and the
evidence adduced. There is no legal principle established in any of the cases
cited by the Province that a childs seemingly favourable relationship with the
alleged abuser means sexual abuse did not occur. Instead, the unchallenged
expert evidence in this case is to the contrary.
[987] Another
purported deficiency with Dr. Hervès evidence asserted by the Province is
that Dr. Hervè relied upon the findings of fact from the First Trial in
reaching his opinion. The Province asserts that had he taken a more fulsome
approach to his investigation, his opinion would have or was likely to have
been different. The Province says that he should have spoken with third parties
who had information about the sexual abuse issues raised in the First Trial and
in this action, and that he should have been provided with much more
documentation. The Province has not, however, proven the assertion. Instead,
the plaintiffs have proven the facts upon which Dr. Hervè based his
opinion evidence.
[988] The
Province says that Dr. Hervè inappropriately relied on the finding in the
First Trial that J.P. did not coach the older children to make their
disclosures as a factor in his assessment that J.P. did not coach P.G. to make
her statements about her genital area. The Province argues that had Dr. Hervè
carried out his own investigation, he would have reached a different opinion
because he would have determined that it was highly likely that J.P. coached
the older children to make their disclosures and coached P.G. to make her
remarks about her genitalia. The Province also argues that his approach was
unprofessional and disingenuous. I reject these submissions for several
reasons.
[989] First, Dr. Hervè
is entitled to rely on the findings of fact from the First Trial because they
were imported into this action upon consent of the plaintiffs and the Province.
Among those findings are that the three older children were sexually abused by
B.G. and that J.P. did not coach her children to make their disclosures.
Although the Province sought to resile from its consent towards the close of
the plaintiffs case, I determined that it could not do so in reasons indexed at
2013 BCSC 1403.
[990] Second,
the case relied upon by the Province – Sebastian v. Neufeld (1995), 41
C.P.C. (3d) 354 – has no application to the facts of this case. Sebastian
involved an expert who sought to rely on facts found and remarks made by a
judge in reasons for judgment in a related action that concerned different
parties and a different subject matter. In that case, Preston J. also found, at
paras. 11 and 14, that it was impossible to discern from the report the
extent to which [the expert] relied on matters not in evidence. Neither issue
arises in this case. The facts upon which Dr. Hervè based his opinion are
clear and have been proven in the evidence.
[991]
In Friebel v. Omelchenko, 2013 BCSC 948 at paras. 13, 25,
Ker J. distinguished the problems faced by Preston J. in Sebastian,
which as in this case, she found were not present:
13 Unlike
the facts in Sebastian, supra, Dr. Sobey clearly delineates
the factual assumptions upon which his report and opinions are based. His
reports identify any further facts assumed in preparing the reports and the
source of those facts. A review of Dr. Sobeys reports did not leave the
reader in doubt as to what factual assumptions underlie the opinions provided
in the report.
25 When read as a whole, Dr. Sobeys
reports leave no doubt as to the factual assumptions underlying his opinion.
[992]
Third, I reject the Provinces submission that Dr. Hervè was
obliged to carry out his own independent investigation of the findings of fact
imported from the Reasons upon which he relied in providing his opinion.
Contrary to the Provinces submission, that is not what Lamer J. (as he then
was) meant when he said in R. v. Howard, [1989] 1 S.C.R. 1337 at 10 that
an expert cannot take into an account facts that are not subject to his
professional expert assessment, as they are irrelevant to his assessment
. As
Preston J. pointed out in Sebastian at para. 15, experts are
entitled to rely upon a statement of facts that instructing counsel are
confident they can prove (which in this case includes the findings of fact
imported from the First Trial):
There has been a tendency, of concern to this Court, for
experts to combine the role of expert and advocate. This is encouraged where
experts approach their task with an unrestricted mandate and are given, by
instructing counsel, material which is inadmissible but calculated to bias the
expert in the formation of his or her opinion. Experts should be asked to
answer specific questions. They should conduct their own investigations,
except where they rely upon a statement of facts which the instructing counsel
is confident that he or she can prove at trial.
[Emphasis
added]
[993] Fourth,
the findings of fact from the First Trial are but one of a number of pieces of
information that Dr. Hervè considered in reaching his conclusion that J.P.
did not coach P.G. to make her statements or engage in masturbatory behaviour.
The fundamental basis of his opinion about coaching was based upon his
assessment of P.G.s gestures and statements that he observed in the
interviews. His unchallenged testimony was that a child of tender years, such
as P.G., could not be coached to make those gestures, let alone on a consistent
basis. Throughout his investigation, Dr. Hervè was alive to the
possibility of coaching and undue influence. He was careful not to assume or
conclude that J.P. did not coach P.G. simply because she had been found in the
First Trial not to have coached the other children. Nor did he conclude that
B.G. sexually abused P.G. because he had been found in the First Trial to have
abused the older children. From Dr. Hervès testimony, I am satisfied that
he did not engage in a propensity or similar fact type of analysis, but
instead, approached the issue with appropriate scrutiny and skepticism.
[994] The
Province has not demonstrated that had Dr. Hervè spoken with third
parties, looked at additional documents, or obtained and considered any other
general or specific information that he should have had, that it was likely or
even possible that he would have changed his opinion. Nor has it established that
Dr. Hervè was influenced or misled by J.P. in his analysis or in formulating
his opinions.
[995] I also
reject the Provinces submission that Dr. Hervè purposely refrained from
asking BT.G. questions about his younger sister in order to avoid obtaining
information that would be detrimental to P.G.s claim. I reject that submission
and others to the effect that Dr. Hervè was biased or conducted himself
with deliberate intention to advance a skewed opinion, as wholly baseless.
[996] I found Dr. Hervè
to have been an entirely forthright and highly credible witness who
demonstrated a high degree of professionalism and integrity. Dr. Hervè
explained all of the facts that he considered in applying his particular skill
and training in formulating his opinion and readily conceded those that he did
not. He clearly explained what weight he gave to different information and
factors in reaching his opinion. He readily conceded in his report and in his
testimony that there was insufficient evidence to state with absolute certainty
that B.G. sexually abused his daughter or that if she was the victim of sexual
abuse, that B.G. might not have been the perpetrator. Accordingly, in my
opinion, the Provinces accusation against Dr. Hervè was entirely without
foundation.
[997]
I do not agree with the Provinces criticism, raised for the first time
in argument, that the lack of a formal retainer letter setting out all of the
assumed facts is a deficiency that calls for Dr. Hervès evidence to be
rejected. Dr. Hervès approach was specific and focused and not, as the
Province alleges, superficial. Any reasonable reader of Dr. Hervès report
is not left in doubt about the facts that he relied upon in reaching his
opinions. In addition, the Province did not object to the admissibility of Dr. Hervès
report on the basis it did not strictly comply with the Supreme Court Civil Rules.
Dr. Hervè did not, as the Province maintains, violate the following
caution set out in Sebastian at para.15:
Counsel should not encourage
experts to undertake a broad review of voluminous material and make a vague
statement that the opinion is based on that material. It is simply an
unacceptable manner in which to present an expert opinion.
[998] In
conclusion, I found Dr. Hervès assessment of the allegation that P.G. was
sexually abused by her father to have been considered, objective, and sound. He
did not present as an advocate, lacking in objectivity, or biased as the
Province asserts. He was candid and forthright when giving his testimony, and
was not argumentative. I accept his opinion that P.G. was sexually abused by
B.G. and his evidence explaining the basis for her delayed disclosures and the
absence of coaching and external influence as the cause of her gestures and statements.
I am satisfied that J.P. did not coach or attempt to influence P.G. to make the
statements to the nannies and her preschool teacher, to engage in masturbatory
conduct, and to make the statements and gestures that she did to Dr. Hervè.
I am also satisfied that P.G.s conduct and statements were not the result of
external influence (such as from her siblings).
D. The
Provinces Submission concerning the Evidence of the Foster Parent, Martha
Castro
[999] I cannot
agree with the Provinces submission that P.G. must have been coached or unduly
influenced after she was returned to her mothers care because Ms. Castro
never observed her to engage in masturbatory behaviour. I found Ms. Castro
to have been unreliable when giving her testimony. She was highly defensive,
and at various times inconsistent on key matters when giving her evidence,
calling into question her credibility.
[1000] Ms. Castro demonstrated
her concern not to be blamed for any negative aspect of the childrens
behaviour while in her care. I found that she continually minimized all
negative behaviours of the children while they were in her care. From the
totality of her evidence, it became apparent to me that her defensive approach
resulted from her concern that if she were blamed it could impact upon her
contractual relationship with the Director (which resulted in earnings for her
of approximately $5,500 per month net of tax to look after the four children). Ms. Castro
ran a level one (of three) foster home, which was not designated to deal with
children who were sexually abused and sat at the lowest tier in terms of
supervision. If the children were suspected of having been sexually abused,
then, according to Ministry documents, the children would have to be moved to a
level 2 or 3 foster home and out of her care (resulting in the loss of
revenue). She rejected out of hand the complaints of school teachers and staff
that the children were undernourished and hungry. Ms. Castro blamed these
comments on the complaints of the older children who simply wanted the same
treats that their classmates enjoyed.
[1001]
Ms. Castro refused to accept any information critical of the
childrens conduct while they were in her care. She denied seeing the children
engage in any sexualized behaviours even though the reports prepared by the
supervised access workers are replete with reports of disturbing sexualized
behaviours. Ms. Castro refused to believe the report she received from the
Director that P.G. asked her sibling to blow on my pee pee, even though she
understood it was part of P.G.s vocabulary (she heard P.G. use the word pee
pee in relation to urination). Ms. Castros response was that Ms. Windholz
misheard P.G. use the word pee pee during the September supervised access
visit. Ms. Castro did not attribute any significance to those remarks and
conduct of P.G. to connect them to possible sexual abuse:
Q That’s what you were reporting to the social
worker, right? According to these notes.
A The kids never doing that.
Q No, no, no, you’re saying that they don’t
fight much, everything is good.
A But they never – –
Q No lift up clothes – –
A – – never was pulling they pants – –
Q Yes, I – – yes, that’s what these notes say.
That’s what you advised – –
A Yeah – –
Q – – the social worker, right?
A They never did it.
Q Right. And that’s what the social worker
writes down, right? Everything was really good.
A Yeah.
Q And were you asked about something that may
have happened where [P.G.] had made some statement – -like,Blow on my
pee-pee, or the term pee-pee. Was that brought up by the social worker?
A Yes. I – – they told me that happen, but I
don’t believe.
Q You don’t believe it. Right.
A You know
what, because how – – how — how she’s going to do that – – she never
she was doing that. Even – – she’s so little and how old she’s going to have
that idea in the head?
[Emphasis
added]
[1002]
When Ms. Castro was asked if she had heard P.G. use the word pee
pee to refer to her private parts, she identified her concern that she would
be blamed for P.G.s statement to the supervised access worker:
Q Youve heard her use the word pee-pee or —
to refer to her private parts, right?
A And you know can be too – – don’t – –
don’t be calling me too much because they’re going to do pee? Hmm? Or My
pee-pee going to come out, because you blowing too much and made me – – you
know, tickle me too much?
Q Okay.
A We [indiscernible] and judge a little one in
that way. Is only two years old. Or turning three.
Q Mrs. Castro, nobody’s judging [P.G.].
A But, what is – – that is on that book.
Q No, there’s a note here that says [as read
in]:
Martha thinks
supervisor misheard pee pee.
Okay. That’s what the note says.
So – –
A Yeah, but – – you know, the little one, you
know, she’s so innocent, you know.
Q Nobodys going to blame a two-year-old,
Ma’am, okay – –
A But you know in my – – in my hands.
THE COURT: Sorry, what did you say? In my?
A Until I take
care, Your Honour, the kids.
[Emphasis
added]
[1003]
In addition, Ms. Castro believes that it is acceptable for young
children to masturbate. She saw nothing inappropriate for BT.G., who was
approximately eight years old when he went to live with Ms. Castro in
2010, to masturbate on a regular basis so long as he did it in his room. In her
testimony, she explained that she led BT.G. to the washroom or to his bedroom
so that he could masturbate in private:
Q So what did you do with [BT.G.], how – – did
you work with him?
A Oh, yes, he so sweet little boy, you know
because he understand. I talk to him and I told [BT.G.] that is normal. I
take him by his self on his room, you know, and I explain, [BT.G.], that is
normal, you know, all the boys that happen, and but is not okay, you know, do
that in public or in the living room when your brothers and sister are around,
you know. When you feeling something like that, go to the washroom and Ill
tell that youre coming back or go to your room and youll feel that you coming
back, you know.
But it
take time because [indiscernible] and after that we go over and over and over,
you know, and then I told – – I told [BT.G.], look, [BT.G.] because he listen
to me like that, listen, and he says look, [BT.G.] what we going to do, okay.
Since [indiscernible] I dont going to be like you [indiscernible] but if I
pass to my office and I see you is scratching in public [indiscernible] you
going to go to your room, you going to count until 500. When you finish counting
500, you coming back and continue watching your show.
[Emphasis added]
[1004] Ms. Castro refused to
acknowledge concerns expressed to her by the older childrens school teachers
and administrative staff about their behaviour, including their fighting, and
the need for counselling. She denied the veracity of any of the adverse
comments passed along by the schools to the Director about the childrens
behaviour or nutrition if she thought they could impact on the perception of
the care she provided the children. She blamed bruising found on some of the
children on their activities at school.
[1005]
Her testimony about the childrens significant ongoing physical
altercations at school was inconsistent, and for much of it, Ms. Castro
tried to minimize their significant fighting at her foster home. At one point
she testified that she had no difficulty with the children fighting because it
meant they could release their anger.
[1006]
She also did not see any benefit in counselling, a recommendation that
had been made by professionals at the older childrens school because of their
conduct at school including aggressive physical behaviours. According to Ms. Castro,
counselling is wasting time, particularly when, she said, she provided
appropriate support for the children. By way of example, concerning the third
child, BN.G., she suggested that she could deal with his issues:
A [BN.G.] never need – – need to go to the
counsellor. Hes – –
Q But – –
A – – they says over there I – – I dont want
hes go – –
Q Right.
A – – is because he dont want to go. And I
dont want to go because that little boy is start to blowing up, adult have to
guide him. And when they go to the counsellors, what happen? They coming
worse, because they expose more stuff, and after that, the kids – – they are
smart, and they start to using all those information and doesnt work. In
my life, in my experience, you now, for all those years working, I telling you,
no. I dont like. Because – –
Q You dont like counsellors – –
A – – they – –
they do – – the education starts at home.
[Emphasis
added]
[1007] She also rejected concerns
expressed from school about the source of BT.Gs fantasies about a twin
brother, excusing it as simply all part of his imagination and nothing more.
She criticized BT.G.s school staff for overreacting to his behaviour at school
and to certain drawings he made that Mr. Colby and the school found highly
disturbing. According to Ms. Castro, those drawings were of no concern and
were the result of the imagination of a bright young boy.
[1008] Ms. Castro was also
clearly sympathetic to B.G. She was told by the Director (in her dealings with Ms. Pop)
that the children had not been sexually abused, information which Ms. Castro
considered to be important. She was also led to believe that J.P. could not be
around the children because of a missing firearm and the Pepper Spray Incident.
After the Director withdrew her protection concerns about J.P. but while the
children were still in her care, Ms. Castro sought to and became accepted
as one of B.G.s friends on his Facebook account. Ms. Castro admitted
that she contacted B.G. via Facebook even though she testified that she knew
that I had issued a strict no contact restraining order against B.G. in May
2012 prohibiting direct or indirect contact with the children. I found her
explanation that she did so as part of her hobby to find out information
about parents whose children were in her care to lack credibility. So was her
evidence that she woke up early one morning and felt that something was
pushing her to go to her computer which was near her bed, and when she did,
she saw B.G.s picture on the screen. She also thought that J.P. should go to
jail if she showed up at the foster home. She was defensive of B.G., admitting
in her testimony that when she was asked by plaintiffs counsels assistant why
she made the contact on Facebook, she had responded, Hes still a dad. She also
wanted to have a picture of B.G. Once she heard that he could not have any
contact with his children, she testified that she wanted to investigate to
see what I can find, which I have determined meant she wanted to find
information to assist him.
E. Opportunity to Commit Sexual Abuse
[1009] That B.G. had many
opportunities to abuse his daughter is confirmed by the evidence of his sister
and step-father that he bathed P.G., changed her diapers, and put her to bed
alone.
[1010] B.G. also confirmed in his
evidence given during the First Trial (which has been imported into the trial
of this action), that there have been instances where he has had the children
at his premises alone and taken them places on his own. I found it noteworthy
that he gave that evidence in order to demonstrate the positive aspects of his
relationship and contact with his children in order to justify his claim for
sole custody without knowing the implications that his evidence might have in
this action where the spectre of the sexual abuse of P.G. has been alleged. As
well, that evidence is also inconsistent with his testimony during the trial of
this action where he flatly denied changing his youngest daughters diaper. On
the whole, I found his testimony at the trial of this action to be nothing more
than denials that lacked credibility.
[1011] I also found his mothers
testimony to have been given in a manner designed to convey an initial
impression that B.G. had little or no opportunities to commit sexual abuse.
[1012] In summary, I find that B.G.
had opportunities at home and elsewhere to engage in genital contact with P.G.
F. Concluding Remarks Concerning Sexual Abuse
[1013] There is an overwhelming
body of credible and reliable evidence to conclude that P.G. was sexually
abused by B.G. while he enjoyed unsupervised access. Proof of the claim comes
from: (a) Dr. Hervès opinion evidence; (b) P.G.s sexualized behaviours
and her spontaneous statements to her nannies and preschool teacher and in
front of J.P. and Ms. Windholz at the September 21 supervised access visit;
and (c) the opinion evidence of Dr. Reeves and Mr. Colby.
[1014] I reject the Provinces submission
that the claim is linked to and based upon a number of vague, inarticulate,
and for the most part, gibberish-like statements made by P.G.
F. Liability of the Province
[1015] I will start with my
determination of the plaintiffs claim that the Province is liable for the
sexual abuse of P.G. by her father while he enjoyed unsupervised access.
[1016] I have found that P.G. was
sexually abused by B.G. while the Director allowed him to have substantial
amounts of unsupervised access when the children were in her care. When the
Director allowed unsupervised access, J.P. put her on notice that B.G. would
sexually abuse the children. The Director did not believe J.P., but her belief
was grounded in the negligence of the Intake team in failing to assess and
investigate the sexual abuse allegations and in the misconduct of Mr. Strickland.
[1017] Some of the social workers who
chose to ignore the Supervised Access Order, such as Mr. Blandford, Ms. Pop,
and Ms. Lejko, honestly held the belief that it did not apply to the
Director. They nonetheless understood by June 2, 2010, that I required B.G.s
access to be supervised. By August 2011, they were not under any
misapprehension of the Courts expectation that B.G. was bound by the
Supervised Access Order and that the Director was at risk of sanctions if she
continued to allow him unsupervised access. In exercising her discretion to continue
to allow unsupervised access throughout, the Director took the risk that the
children could be sexually abused. The Province is liable for the damage caused
by the Directors failure to protect P.G. from sexual abuse while she was in
her care.
[1018] The plaintiffs also allege
that the Director failed to properly investigate the report, made on behalf of
J.P. to the Director by her lawyer after the September 2011 supervised
access visit, that P.G. may have been sexually abused by her father.
[1019] No criticism can be levelled
at Ms. Windholz in respect of the September 2011 incident in which
P.G. made remarks concerning her genitalia. Ms. Windholz reported the
September 2011 incident to the Director.
[1020] Mr. Blandford directed
that P.G. be interviewed but the interview never took place. Arrangements could
not be made for a social worker working out of the Ministrys Maple Ridge
office (which is close to where P.G. was residing with Ms. Castro) due to
personnel constraints. Ms. Allen was then tasked with the interview but it
never occurred. I found Mr. Blandfords original decision to have P.G.
interviewed was made for a tactical purpose in the litigation because he was
concerned about the optics of not doing so when the matter was to be addressed
by J.P.s counsel at an upcoming case conference. Following the court appearance
(where nothing further arose in respect of the incident), Mr. Blandford
decided not to pursue the interview. I found his explanation for his decision
not to pursue the interview – because P.G.s comments were nothing more than
childs play – lacking in credibility.
[1021] From observing Mr. Blandford
at trial, I was left with the impression that he made that determination based
only on a momentary reflection. He failed to consider the ramifications of the
statement in the context of the sexual abuse allegations. He failed to properly
assess the information and did not investigate, let alone consult with anyone
with any level of expertise in sexual abuse of children or sexualized
behaviours. In cross-examination, Mr. Blandford said that he had heard
children say things that are sexualized in some way, and that investigating
every statement made would amount to a witch hunt. He admitted that little,
if any, investigation of the report of P.G.s statement and conduct was carried
out and that no one from the Ministry ever considered whether P.G. could have
made the statement as a result of being exposed to other sexualized material or
behaviours. I found his mind was closed to the possibility of the statement
being related to possible sexual abuse. His attempt at trial to blame
communication problems with J.P. for lack of an investigation lacks credibility
because he and other social workers involved in the case placed little or no
stock in J.P.s credibility in any event.
[1022] I agree with the submission
of the plaintiffs that the motivating factor for the Directors purported
interview of P.G. was to ward off any undue criticism of the Director from J.P.
and her counsel before the Court. When none arose, the notion of an interview
was dropped. The entire matter was dropped. The Director took the position in
the First Trial that there was absolutely no significance to be attached to the
incident. In acting in this manner, the Director engaged in tactical conduct
designed to promote her position in the litigation as opposed to engaging in a
proper assessment of the report as required by the standard of care. She put
her interests ahead of P.G. and in doing so, breached her fiduciary duty to
P.G. The Director also did not meet the standard of care required of a careful
parent.
[1023] In all, the Directors
approach to reports of sexualized behaviours was deficient. As a result, in
failing to investigate these reports from supervised access workers, the
Director breached her statutory obligation and the standard of care to
investigate whether the children were at risk of harm of sexual abuse if B.G.
was allowed unsupervised access to them.
[1024] Finally, I wish to say that
the Province also received particulars of the claim and there is no merit to
its submission in closing argument that it did not.
XVIII. CAUSATION
[1025] This trial concerns
liability only.
[1026] It is trite law to say that
even where proof of the constituent elements of fault for a claim in tort are
proven, causation of damages must still be proven in order to establish
liability.
[1027] An issue regarding causation
arose during the trial. According to the plaintiffs, they were not required to
prove causation in order to establish liability. The plaintiffs say that the
Province agreed prior to trial that if the plaintiffs proved the elements of
fault for misfeasance in public office, breach of a duty of care, or breach of
fiduciary duty, then causation was presumed at least insofar as nominal damages
were concerned. Liability would thus be established. At the same time, the
plaintiffs would have to prove the Province was liable for damages beyond
nominal damages at a subsequent trial.
[1028] However, to the plaintiffs
surprise, the Province submitted in June 2014, part way through its closing
argument, that the plaintiffs case should be dismissed because they failed to
prove causation and failed, as well, to deal with the doctrine of divisibility
of damages. The plaintiffs objected to that submission, asserting that the
Provinces position was contrary to their agreement. The plaintiffs position
is that the Province ought not to be able to resile from its prior agreement
because they would be prejudiced, as they would have led further and detailed
evidence to establish causation in respect of each of their claims.
[1029] The dispute was put over for
argument when closing submissions in the trial resumed in October 2014. At that
time, the dispute appeared to have been resolved. The Province advised that if
the plaintiffs proved each of the constituent elements of fault for the torts
pleaded, then causation was presumed insofar as nominal damages were concerned.
An example of the Provinces position is seen in the following submissions of
its counsel:
MR. JOHNSTON: My Lord, I want to – – Ill begin, I
had a brief discussion with my friend this morning regarding the issue of
causation, which was raised yesterday.
And Ill just make a brief comment on
that which is – – and there was some question as to the extent to which
causation had to be proven and injuries that would flow from that, et cetera.
And our position is that if the cause of action is proven, there would be – –
we accept there would be nominal damages, at least. So thats not in issue. If
the constituent elements of the torts are proven, then we accept that there
would be at least nominal damages that would flow.
So in terms of the causation
analysis, were not going to take issue with the fact that – –
THE COURT: So then – – so by constituent elements,
you meant that if Mr. – – if the claimants prove theres been a breach of
the standard of care of if theyve — and/or if theyve proved there has been
misfeasance or a breach of fiduciary duty then causation is presumed in the
sense of nominal damages.
MR. JOHNSTON: Yes.
THE COURT: All right.
MR. JOHNSTON: Yes.
THE COURT: Thank you. There was a different position
taken in Mr. Weintraubs brief that led to the objection.
MR. JOHNSTON: Well, I – – I dont recall precisely
how that argument played out in the brief, but our point is, I think, that
obviously theres going to be – – there will have to be a damages – –
THE COURT: Right.
MR. JOHNSTON: — trial and the question then will
arise what — how that damages — what damage was suffered and how it can be
attributed and how it should be attributed to the injuries that have been
proven in the liability phase and an assessment of original positions versus
injured position and all of that analysis.
THE COURT: Including the doctrine of indivisibility – –
MR. JOHNSTON: Yes.
THE COURT: –or divisibility of damages.
MR. JOHNSTON: Yes.
THE COURT: What youve
just told me now is what I had though the position was.
[Emphasis
added]
[1030] The Province confirmed its
position again at subsequent appearances when the parties returned to address
other issues. At one point, I asked counsel if the Provinces pleadings should
be amended to reflect the agreement about causation. Both the Province and the
plaintiffs said that an amendment was not necessary.
[1031] Thereafter, the Province
took different positions in subsequent court appearances, stating that it
conceded causation might be presumed in respect of certain of the tort claims
and then later still, said that it agreed that causation was presumed in respect
of certain, but not all, of the tort claims proven by the plaintiffs. For
example, the Province stated that it agreed that if the plaintiffs proved the
constituent elements (other than causation) of misfeasance, breach of fiduciary
duty, and some of the alleged delicts founding the negligence claims,
that causation of nominal damages would be presumed.
[1032] The plaintiffs then applied
for a declaration that the Province was estopped from taking any position
contrary to its unequivocal acceptance that causation was presumed insofar as
nominal damages were concerned. In support of their application, the plaintiffs
pointed to the clear and unambiguous statements made by the Provinces counsel
during the trial and the conduct of Provinces counsel in objecting to evidence
being led in the plaintiffs case concerning damages. The plaintiffs also
submitted that there is enough evidence in the trial record to prove nominal
damages for each of the delicts alleged.
[1033] Although the Province said
that it did not oppose the application, when its position was articulated in
oral submissions, it was clear that the Provinces position was that there
never was any agreement reached and, further, that any statements its counsel
may have made suggesting an agreement were not fully considered and perhaps
went too far.
[1034] When argument on the
application concluded, the Provinces final position was:
(a) No
argument had been reached concerning causation.
(b) Nonetheless,
the Province agreed that if the plaintiffs prove misfeasance and breach of
fiduciary duty then nominal damages are presumed to have been caused.
(c) The
Province also agreed that if, amongst the claims framed in negligence, the
plaintiffs prove that the Apprehension was wrongful, that the Director
wrongfully allowed B.G. unsupervised access, that he sexually assaulted P.G.
during such access, and that the Director was negligent in failing to provide
counselling to the children for sexual abuse and/or their sexualized
behaviours, then nominal damages are presumed to have been caused.
(d) The
Province agreed that if the plaintiffs prove any other allegations of
negligence, then the plaintiffs are not prejudiced because they may proceed to
prove causation at the next trial.
[1035] In this section, I set out
my decision concerning the dispute surrounding the requirement that the
plaintiffs prove causation.
[1036] In their submissions,
counsel for the plaintiffs and the Province provided different accounts about
whether an agreement was reached prior to trial. The only evidence provided in respect
of a pre-trial agreement consists of some of the transcripts of pre-trial
proceedings and some of the communications between counsel. I am not able to
determine from the limited evidence whether an agreement was reached.
[1037] What I have determined is that
although the pre-trial discussions between counsel for the plaintiffs and the
Province evolved, by the time the trial began, and then during the course of
the trial itself, the Province led the plaintiffs to believe that there was an
agreement in place that if they proved the constituent elements of the tort
claims (other than causation) they need not prove causation to establish
liability because nominal damages would be presumed.
[1038] The plaintiffs
understanding of the scope of the agreement was in fact confirmed by the
Provinces counsel in court on several occasions to be:
(a) If the
plaintiffs proved the constituent elements of any of the torts apart from
causation, then nominal damages would be presumed.
(b) The
Province retained all of its rights to defend against claims that damages
beyond nominal were caused by the delicts of the Director and her
agents.
(c) The
Province retained its right to defend the claims for damages beyond nominal
based on the principles of material contribution described in the Supreme Court
of Canadas decision in Athey v. Leonati, [1996] 3 S.C.R. 458 and to
argue, based on the doctrine of divisibility of damages, that any damages
suffered by the plaintiffs were caused by B.G.
[1039] I accept the plaintiffs
submission that they would have taken a different approach to their case and
led greater and more detailed evidence of damages to prove the nexus with each
of the tort claims.
[1040] I have also determined that
the plaintiffs have proven nominal damages for all but four aspects of the
claims framed in negligence.
[1041] By way of example, the
children were wrongfully apprehended as a result of the negligence of the
Director in failing to assess and investigate the reports of sexual abuse. The
children were unreasonably kept in foster care because of the prior and ongoing
delicts of the Director and her agents, including (but not limited to)
their: conduct surrounding the Form A; ongoing support of B.G.; failure to
act in a timely manner; and improperly maintaining jurisdiction over the children
per a temporary custody order.
[1042] Many of the social workers
who testified agreed that apprehending children from a parent(s) and placing
them into foster care causes emotional distress. There is evidence that the
children suffered ongoing emotional distress as a result of being taken from
their mothers care. The conduct of the Director and her agents also caused the
children to be placed in the custody of the person who sexually and physically
abused the older children. P.G. was sexually abused during the period of
unsupervised access. At a minimum, the children suffered emotional distress as
a result of being in such close unsupervised proximity with their father. Also,
at a minimum, failing to provide counselling for the childrens sexualized
behaviours allowed the childrens significant emotional distress to continue in
circumstances where experts such as Dr. Kot and Mr. Colby said it
needed to be addressed. Holding back funds to provide counselling for the
children, that Mr. Colby said was essential for K.G. and BT.G., would as
well.
[1043] For ease of reference, I set
out below a summary of the various claims framed in negligence that I have
found have been proven by the plaintiffs. I have also set out those claims for
which the Province concedes damages are presumed and those for which I have
determined causation of nominal damages, and therefore, for which liability in
negligence is proven:
(a) Wrongful Apprehension –
Causation of nominal damages is
conceded by the Province to be presumed.
(b) Failing to assess and investigate reports of sexual abuse,
including failing to treat the childrens disclosures as prima facie evidence
of sexual abuse, and failing to assess and investigate further reports,
information, and evidence concerning the sexual abuse allegations provided to
the Director over time –
These delicts led to the
wrongful Apprehension and unnecessarily kept the children in foster care. The
plaintiffs have proven that apprehending the children and removing them from
the care of their mother and then keeping them in foster care caused
significant emotional distress. I am satisfied that some of the childrens
aggressive behaviours and violent conduct towards each other was the result of
the Apprehension and being kept in foster care for some two and one-half years.
Those delicts also
contributed to the Directors decision to permit B.G. to have unsupervised
access, which in turn put the children in regular, close, and unsupervised
proximity with the person who had sexually abused them, which in turn caused
emotional distress. The plaintiffs have proven causation of nominal damages of
emotional distress. P.G. also suffered injury because she was sexually abused
by her father during periods of unsupervised access.
(c) Misleading Report to Court (Form A) –
Negligent conduct on the part of Mr. Tymkow
and Ms. Caffrey in failing to provide a factually accurate report to court
and their failure to remedy the errors and omissions caused the children to
inappropriately remain in foster care. The plaintiffs have proven causation of
nominal damages for the reasons set out in para. (b).
The plaintiffs argue that the
report to court also caused others reading it to have an inaccurate
understanding the true circumstances leading up to the Apprehension and whether
J.P. posed protection concerns to her children. They allege that it caused or
contributed to other tortious conduct. This is the first aspect of the
plaintiffs negligence for which causation has not been proven. Whether this
caused or contributed to damages suffered by the plaintiffs is a matter that
requires the principles in Clements v. Clements, 2012 SCC 32 to be
considered at the next trial.
(d) Failing
to pursue a timely protection hearing and instead, applying for extensions of
the Temporary Custody Order to keep the children in her care when the Director
knew there was no basis to bring the applications –
The children were inappropriately
kept in foster care. The plaintiffs have proven nominal damages were caused for
the reasons set out in para. (b).
(e) Providing unsupervised access to B.G. –
The children were placed in
regular, close, and unsupervised proximity of the person who sexual abused
them. The Directors decision in August 2011 to continue to allow unsupervised
access in light of the Courts direction to the contrary and warning of the
risk of sanctions, her counsels advice to the contrary, and knowing that B.G.
was prepared to breach a court order to obtain access, perpetuated the harm to
the children. The plaintiffs have proven that nominal damages for emotional
distress were caused. P.G. was sexually abused by her father during
unsupervised access. The Province admits that causation of nominal damages is
presumed.
(f) Interference with the assessment of Mr. Colby –
My determination that damages were
caused by the conduct of the Director and her agent is set out at para. 798
of these reasons.
(g) Failing to provide counselling for sexualized behaviours
–
The Province concedes that
causation of nominal damages is presumed.
(h) Failing to consider J.P.s request to pay for extra-curricular
activities for the children –
The plaintiffs have proven nominal
damages were caused where the Director denied the children access to their
pre-Apprehension extra-curricular activities in circumstances where they were
wrongfully apprehended from their mothers care and then placed in prolonged
foster care.
(i) Holding back funds and documents to permit counselling for
the children –
Both Dr. Kot and Mr. Colby
opined that the children required counselling. Mr. Colby opined that the
two older children required it urgently. Mena Perrota testified that the
children required greater counselling but was restricted due to inadequate
financial resources. The children were denied counselling they required.
Nominal damages are proven by the delay in providing counselling recommended by
the medical professionals.
(j) Ms. Allens decision to treat the First Trial as an
assessment process even after she had considered it was possible the children
may have been sexually abused by their father –
Her failure to report her views to
her superior and to let the trial carry on caused the children to continue to
remain in foster care. The plaintiffs have proven causation of damages for the
reasons set out in para. (b).
[1044] Apart from the aspect of the
claim in negligence that I noted in para. 1043(c), there are three other
aspects of the plaintiffs claims for which I am not satisfied the plaintiffs
have proven damages, even nominal damages.
[1045] The first of those three
concerns my determination that the Director breached the standard of care in
respect of the decision to clear B.G. of allegations of physical abuse, which
includes the decision to write the letter dated November 23, 2009 for his use
in the family law action. I have determined that those delicts
contributed to the series of tortious events that led up to the wrongful
Apprehension, the Apprehension itself, and the inappropriately favourable view
of B.G. taken by the Director and social workers both before and after the
Apprehension (that in turn contributed to the Directors decision to support
B.G. throughout and to grant him unsupervised access). Whether that
contribution is sufficient to establish causation, even nominal damages, as
per Athey, was not addressed in submissions. Nor was the application of Clements.
[1046] The second concerns Ms. Allens
failure to investigate a report that Ms. Castro was using corporal
punishment. The plaintiffs submit that had the Director carried out an
investigation, other abuses and inappropriate treatment and care suffered by the
children while in foster care would have been discovered, such that the
children would have been moved to a new foster home with better conditions.
This claim has not been proven. There is no evidence from which I am able to
make those findings or draw those inferences.
[1047] The final aspect concerns
the failure of social workers to take notes and properly record key events in
MIS. I am satisfied that these delicts were manifestations of the
Directors predetermined adverse view of the veracity of the reports of sexual
abuse and the misfeasance of Mr. Strickland. They are emblematic of the
Directors approach towards the standard of care to assess and investigate
reports of sexual abuse. The absence of notes and records in MIS contributed to
an inaccurate understanding by those tasked with considering the sexual abuse
allegations, which in turn contributed to the children remaining in foster
care. This requires the principles in Athey and Clements to be
addressed at the next trial.
[1048] The absence of proof of damages
for these four claims is not fatal to the plaintiffs because the Province has
agreed that they may seek to prove causation at the next trial. Accordingly,
any prejudice arising to the plaintiffs from what they understood their
agreement with the Province to be is ameliorated.
[1049] Otherwise, liability for the
negligence claims has been established. Further, as a result of the agreement
of the Province concerning causation of nominal damages for the misfeasance and
breach of fiduciary duty claims, the plaintiffs have proven the liability of
the Province for those torts.
[1050] In conclusion, with the
exception of four aspects of their negligence claims, the plaintiffs have
established liability against the Province for nominal damages. The Province
retains all of its rights to defend against claims for damages beyond that
amount.
XIX. THE
PLAINTIFFS PLEADINGS
[1051] The plaintiffs pleadings
are overbroad and do not segregate with sufficient particularity the three tort
claims. Nevertheless, written particulars of the claims were delivered by the
plaintiffs and were also provided in the plaintiffs opening and further
detailed in a document delivered by plaintiffs counsel in closing argument
entitled Liability Analysis (which provides a detailed template of the
plaintiffs claims and particulars).
[1052] The Province challenged the
adequacy of the plaintiffs pleadings in its written closing submissions,
suggesting that their deficiencies were fatal to the plaintiffs case such that
those claims should be struck. Its focus was on the misfeasance and breach of
fiduciary duty claims. However, the Province ultimately backed away from that
position insofar as the misfeasance claim was concerned. It agreed that the
claim should not be struck. The Province also said that it should have sought
particulars at a much earlier stage in the litigation in respect of its
concerns. In any event, the Province said that at the end of the day, the
plaintiffs had failed to prove the misfeasance claim. It did not oppose
amendments to the notice of civil claim sought by the plaintiffs in the latter
stages of closing argument to resolve the concerns of the Province, although
the Province characterized them as technical and inadequate.
[1053]
The Provinces final position was stated by its counsel in the latter
stages of closing argument during the following exchange:
MR. JOHNSTON: My Lord, my friend and I did have a
discussion late last night, and I indicated to him, and I will indicate here
this morning, that the Crown is not opposed to an amendment in principle. I had
not seen the proposed amendment at the time that I had that discussion with Mr. Hittrich.
What I did indicate to him last night, and what I maintain this morning, is
that – – that a simple technical amendment, I submit, is not – – is not
adequate.
And it might be adequate in
some instances, it might be adequate with respect to some causes of action, but
my concern here is with respect to misfeasance and the nature of that
intentional tort, the requirements, the ingredients of it, and more particularly,
My Lord, again, the focus of our concern here is to identify the individuals
who are alleged to have engaged in misfeasance.
And I appreciate that – – and I
dont disagree with my friend that – – that normally this would come at a much
earlier stage. There perhaps should have been a strike application, or at least
some form of pre-trial application to identify this issue and to help focus
things
.
THE COURT: But have it – – hasnt there really been a
delivery of the particulars by way of your friends detailed arguments? I mean,
hes – – in his argument, which lasted many days, he went – – I asked him to
identify who the complaints were against, what their alleged misconduct was.
MR. JOHNSTON: Yes.
THE COURT: What was the breach of fiduciary duty, what
was – –
MR. JOHNSTON: Yes.
THE COURT: – – the breach of standard of care. So hes
got the liability map. Isnt it its either there or its not there, and
theres been argument – –
MR. JOHNSTON: Yes.
THE COURT: – -back and forth on what it is?
MR. JOHNSTON: Well, I think thats true, My Lord.
THE COURT: You see, my concern when I expressed it in
the memorandum [to counsel] was I read in the written submissions [of the
Province], going through them all, that the pleadings did not indicate the
tort, misfeasance of public office, and therefore it was fatal, and – – and the
claim should be struck, and I thought I had never heard that argument being put
forward before, at any time, so what do I do.
MR. JOHNSTON: Yes. And – – and I think – – I
think Your Lordship is correct in that, and I think the particulars of the
misfeasance probably should have been demanded earlier. Instead, weve
essentially learned the story as weve worked our way through it, such as it
is.
THE COURT: So what – – what do we do now? Your
friend – – your friend says, well, look, no one was surprised. Thats why I
asked to see the transcript references. No one was surprised. Everyone
acknowledged before the trial started that it was a misfeasance in public
office claim.
So then does the Crown still stand by that submission or not?
Because if they do, your friend says, well, I should be able to have these
amendments that I want to make this morning.
MR. JOHNSTON: Well, My Lord, my colleague has
reminded me that there is were of course particulars, some particulars
delivered with respect to paragraph 14, although I dont think that the – – my
recollection is that the particulars themselves – – and Im not even sure that
Ive got them here — Im not sure that they spoke to this particular point.
THE COURT: Well, as I say again, the origin of my
memorandum was the Crown submission in written form, that the pleadings failed
to mention misfeasance in public office as a basis of the claim, and it was
fatal.
MR. JOHNSTON: Well, I would – – I would modify
that to some extent, My Lord. I dont think the intention was to essentially
bring a strike motion at the end of the day.
THE COURT: Okay.
MR. JOHNSTON: It was a question really of the
evidence does not support. At the end of the day, the evidence doesnt support
a finding of misfeasance because the necessary ingredients have not in fact
been proven.
THE COURT:
So right now Im at – – at the crossroads
of saying, all right, well, were all at the crossroads; whats the Crowns
position? Because I have to – – if theres going to be – – if the position is
maintained, then we have to deal with it. But if the – – if the point is, look,
no, disregard that submission, the essence is they didnt prove misfeasance,
then isnt – – then I dont have to have any regard to that written
submission, and we just move forward.
So where do we go from here?
Because the last think I want to do is issue a set of reasons for judgment and
have the parties complain later that theres defects in the pleadings. I mean,
you said quite rightly this should have been dealt with a – – raised a long time
ago – –
MR. JOHNSTON: Yes.
THE COURT: – – if there were concerns. What do you say
should happen now?
MR. JOHNSTON: Well, I think what I would like to
do, My Lord, is Id like to stand down and get some instructions.
MR. JOHNSTON: My Lord, Ive had a chance to get
instructions and our position is that well – – or the Province will not oppose
the amendment. Our position is that the pleadings are still deficient and, in
essence, that this amendment is inconsequential.
THE COURT: And what do you say about the question I
put to you earlier of the liability map or analysis providing those
particulars?
MR. JOHNSTON: Well, the liability map assists
and will assist Your Lordship and you will have to work your way through the
evidence of that. Our – – our position, as you will recall, in argument was and
remains that plaintiff has not made out its case for misfeasance.
THE COURT: All right. But youre not saying that the
state of the pleadings are deficient so that the claim should be struck?
MR. JOHNSTON: No.
THE COURT: All right. The essence – – the essence of the
point is they havent – – the plaintiffs havent proven it and I should be
careful about drawing inferences – –
MR. JOHNSTON: Thats correct.
THE COURT: – – And weigh the evidence very carefully?
MR. JOHNSTON: Yes.
[Emphasis
added]
[1054] The Province did not,
however, resile from its objection in its written submissions concerning the
sufficiency of the pleadings with respect to the breach of fiduciary duty
claim, which I have said in these reasons is a position that I do not accept.
XX. PROTECTION
FROM LIABILITY
[1055]
The CFCSA provides, in s. 101, immunity from liability for
acts or omissions carried out by any person in actual or intended performance
of a power, duty, or function under the statute (or at the direction of someone
on whom the power to carry them out is conferred) when done in good faith:
s. 101 No person is personally liable for anything done or
omitted in good faith in the exercise or performance or intended exercise or
performance of
(a) a power, duty or function
conferred under this Act, or
(b) a power, duty or function on
behalf of or under the direction of a person on whom the power, duty or
function is conferred under this Act.
[1056] Does the immunity extend to
the Director and the social workers involved in this case? I have determined
that it does not.
[1057] There are limits on the
immunity provided in s. 101. To start with, immunity does not extend to
decisions or actions not made in good faith. Thus, it does not protect against the
finding of liability that I have made in respect of the misfeasance claim. Nor
does it extend to my determination that the Director acted in breach of
fiduciary duty in supporting B.G.s claim for custody despite her acknowledgement
that it was possible he sexually abused the children because in preferring his
interests over the childrens, the Director acted with a closed mind.
[1058] As for the claims involving
a breach of the standard of care, the statutory immunity does not extend to
decisions or actions that do not require the exercise of discretion. These
include the obligations to assess reports of harm to children or the risk of
it, including reports of sexual and physical abuse; to consider and to treat
childrens disclosures of sexual abuse as prima facie evidence of abuse;
to submit factually accurate and contextually appropriate reports to court; to carry
out risk assessments when changing access from supervised to unsupervised; and to
monitor children in foster care: (see, e.g., Brooks at para. 170; C.H.
at para. 40).
[1059] Even where the conduct
involves the exercise of discretion, the Director and social workers do not
enjoy the protection of good faith immunity where they fail to properly inform
themselves. In C.H., Rowles J.A. held at para. 48 that the Director
could not enjoy the good faith defence where her representative did not
sufficiently inform herself to properly exercise her discretion. In that
case, the Director could not rely on the defence because she did not take
adequate investigative steps despite being put on notice of potential problems
and dangers concerning the childs safety. The same analysis and result applies
to my findings concerning the negligent conduct of the social workers
throughout. Therefore, even though the decision whether to conduct an
investigation following an assessment involves discretion, the immunity is not
engaged in this case.
XXI. COSTS
FROM THE FIRST TRIAL
[1060] The plaintiffs seek an order
for special costs against the Province and B.G and assert that the order should
be made on a joint and several basis because the Director effectively led the
case against J.P. on behalf of B.G. They concede that the Director is not
responsible to pay special costs for all of the First Trial since some of it
concerned determination of financial disputes and support between J.P. and B.G.
In their submission, 10% of the First Trial should be allocated to those
financial issues.
[1061] The plaintiffs also claim
that prior to this trial, the Province offered to pay on behalf of the Director
some portion of special costs flowing from the First Trial. On its face, the
Directors offer was not restricted to Mr. Colbys involvement. The plaintiffs
accepted the offer. Subsequently, the Province characterized the offer as limited
to the costs in respect of the Directors involvement with Mr. Colby.
[1062] The Provinces position is
that the plaintiffs have misconstrued the offer and in any event, the Director
is only responsible to pay special costs that relate to evidence in the First
Trial involving Mr. Colby and his disbursements for his retainer in
preparation of the section 15 report. Otherwise, it submits in what I took to
be an alternative submission, the determination of special costs should be
postponed until my reasons are issued.
[1063] In looking at the exchange
of correspondence between the parties, I find that the parties were ad idem
in respect of the Directors obligation to pay special costs but not as to an
amount or any other identifiable basis other than a portion of the trial. Consequently,
there is no basis upon which I can determine an agreement between the
plaintiffs and the Province concerning scope, let alone quantum, and I would,
instead, prefer to determine the Directors obligation based on the application
of legal principles governing awards of special costs.
[1064] Special costs are awarded
where there is, in the circumstances giving rise to the litigation (such as
bringing it for an improper motive or pre-litigation misconduct) or in respect
of a partys conduct in the litigation, reprehensible, scandalous or
outrageous conduct: Garcia v. Crestbrook Forest Industries Ltd. (1994),
119 D.L.R. (4th) 740 (C.A.); Gichuru v. Smith, 2014 BCCA 414; Dockside
Brewing Co. v. Strata Plan LMS 3837, 2007 BCCA 183. The term
reprehensible includes milder forms of misconduct that may fall short of
scandalous or outrageous and can be conduct which is deserving of reproof or
rebuke: Leung v. Leung (1993), 77 B.C.L.R. (2d) 314 (S.C.).
[1065] Special costs have been
found to justify an award of special costs where a party:
(a) knowingly
gives false evidence: Chudy v. Merchant Law Group, 2009 BCCA 93;
(b) is in
contempt of court or in other egregious circumstances fails to comply with a
court order: Law Society of British Columbia v. Yehia, 2008 BCSC 1172; G.W.L.
Properties Ltd. v. W.R. Grace & Co. of Canada, (1993), 14 C.P.C.
(3d) 91 (B.C.S.C.); M.P. v. N.M., 2009 BCSC 40; Edwards v. Bell,
2004 BCSC 399;
(c) deliberately
attempts to mislead the court through contrived, concocted, or fabricated
evidence: Jogia v. Aetna Life Insurance Co. of Canada, [1999] B.C.J. No. 1502
(S.C.); Smith v. Garbutt, [1998] B.C.J. No. 2460 (C.A.);
(d) fails
to provide full and timely disclosure of critical documents: Laface v.
McWilliams, 2005 BCSC 1766;
(e) relies
on wholly unsatisfactory affidavit evidence even where the evidence in it is
not demonstrably dishonest: Edwards; or
(f) knowingly
relies on the evidence of advocates presented in the guise of expert evidence:
Coulter v. Ball, 2003 BCSC 1186 at paras. 82 – 87.
[1066] The Province, as a litigant,
has a higher standard of conduct than that of a private litigant: Soo
Logging Co. Ltd. v. HMTQ, 2005 BCSC 588. Child protection authorities are
not immune from an award of special costs: D.J.; Childrens Aid
Society of London and Middlesex v. C.D.B., 2013 ONSC 5556 and 2014 ONSC
1414; Childrens Aid Society of Haldimand-Norfolk v. G.M., [2001] O.J. No. 2221
(C.J.); Childrens Aid Society of Hamilton-Wentworth v. A.F., [2001]
O.J. No. 119 (S.C.J.)
[1067] I do not agree with the
Provinces submission that it is only responsible for special costs for the
Directors conduct in respect of Mr. Colbys investigation. There are
other instances of the Directors conduct in the Apprehension Proceeding that
warrant an award of special costs, including the Directors:
(a) continued
reliance on false and misleading information in the Form A;
(b) failure
to correct the information in the Form A that she knew to be false and
misleading;
(c) continued
reliance upon and failure to rectify the incorrect evidence in the Blandford
Affidavits;
(d) failure
to disclose the fact of Ms. Feenies communication with Mr. Colby
until well after he testified and only as a result of production of Ms. Feenies
file pursuant to a court order made in December 2011;
(e) failure
to disclose highly relevant and critical documents until this action, such as:
the After Hours memo recording J.P.s calls on December 17, 2009; the Provincial
Court documents left by J.P. at her brothers home that were given over to the
Director by S.P. and a note that Ms. Feenie attached to them; Ms. Le
Beaus communication with social workers concerning the Form A; and Ms. Le
Beaus communications with Mr. Strickland concerning a possible s. 17
application;
(f) failure
to disclose her knowledge that the hard drive had been destroyed by the VPD;
(g) disregard
of her obligation to abide by court orders and directions and her willingness
to take the risk of sanctions;
(h) paying
for the fees of Dr. Eirikson and John Day to testify as part of B.G.s
case;
(i) decision
to withdraw the Apprehension Proceeding based on extraneous factors and not in
accordance with the requirements of the CFCSA; and
(j) failing
to properly transfer the Ministrys file to another Ministry office in
accordance with the commitment made to the court.
[1068] Another reason that the
Director should pay special costs is that J.P. was forced to carry the burden
of enforcing the Directors statutory mandate to protect the infant plaintiffs
from harm, and in the course of doing so, J.P. had to battle against the
significant resources available to and employed by the Director.
[1069] The submissions made on
behalf of the plaintiffs and the Province concerning the extent of the
Directors responsibility to pay special costs were predicated to a significant
extent on their own assessments of findings about the Directors conduct that I
should or might make. In other words, the submissions were premised on
hypotheticals. In the circumstances, it is my opinion that it would be inappropriate
to determine the quantum of the special costs award based on those submissions.
I agree with the Province that the scope of the Directors obligation,
including the plaintiffs claim of joint and several liability and proposed
allocation, should be determined following further submissions now that these
reasons (and my findings) are in hand for the parties to review.
[1070] The plaintiffs and the
Province also mentioned that should the plaintiffs succeed with any of their claims,
they anticipate providing submissions concerning entitlement to and scope of
punitive damages for determination in advance of the damages trial. For
example, relying on Dhillon v. Dhillon, 2006 BCCA 524, the plaintiffs submission
is that punitive damages and special damages are not mutually exclusive. The
Province takes an opposite approach. Thus, the potential intersection between
claims for special costs and punitive damages is another reason to defer
determination of the plaintiffs entitlement to special costs. Accordingly, the
parties should arrange to provide further submissions concerning special costs,
including whether costs should be addressed when they argue punitive damages.
XXII. CONCLUSION
[1071] The Province is liable for
misfeasance, breach of the standard of care, and breach of fiduciary duty on
the part of the Director and her agents.
[1072] The misfeasance of Mr. Strickland
set in motion a series of events, including the Apprehension, which caused
various social workers and Ministry employees involved in the file to view J.P.
as manipulative and malicious. . The Director failed to assess and investigate
reports of sexual abuse as required by the CFCSA and the standard of
care. The Director had no reasonable basis to apprehend the children. The Apprehension
was wrongful.
[1073] The Director unreasonably
and with a closed mind rejected at the outset the veracity of the sexual abuse
allegations and took the view they were fabricated by J.P. before the VPD
completed its investigation and before the children were interviewed. The
Director did not consider whether the children were at risk of harm as a result
of the childrens sexual abuse disclosures and other evidence. The Director
concluded that the children needed protection from J.P. and not B.G. without conducting
any assessment and investigation of her own.
[1074] As J.P. continued to
complain about the sexual abuse of her children and to protest the Directors
conduct, social workers antipathy towards her increased, and as it did, the
Directors focus turned away from the best interests of the children to J.P. As
early as February 2010, the Director encouraged B.G. to apply for custody in
order to return the children to him, regardless of information adverse to B.G.
and even though she acknowledged the possibility that B.G. had sexually abused
his children. In that latter respect, the Director acted in breach of her
fiduciary duty to the children while they were in her care.
[1075] The children remained in
foster care while the Director provided her ongoing support of B.G., until
March 29, 2012 (when the Director withdrew her protection concerns about J.P.).
The children could not be immediately returned to their mothers care because
of the need for appropriate reintegration having been kept in foster care for
so long.
[1076] The Director rebuffed J.P.s
efforts to ameliorate the Directors protection concerns and always, and
unreasonably, assumed the worst of J.P.s motives and conduct. In addition to Mr. Stricklands
misfeasance, for which the Director is responsible, social workers, for whom
the Director is also responsible, engaged in a wholesale disregard of their
statutory mandate and the requisite standard of care expected of them to
protect the children from harm.
[1077] Social workers who became
involved in the case for the Director sought to further the plan to support
B.G. in a manner that overlooked the childrens best interests. The Directors
antipathy towards J.P. diverted her attention from the childrens needs for
medical intervention in spite of Mr. Colbys opinion evidence and reports
of the childrens highly disturbing sexualized and aggressive behaviours
provided by supervised access workers. That antipathy, coupled with the plan to
support B.G., led social workers to rebuff J.P. personally as well as the information
she tried to provide in support of her case and to provide services for the
children. Based on the evidence available to the Director by mid to late
December 2009, it should have been apparent to the Director that the risk of
harm to the children from B.G. was very high.
[1078] The Director was put on
notice that B.G. had sexually abused the children and would do it again, and
she cannot say now that she did not know it was possible or could occur while
he was given unsupervised access to his children.
[1079] The Directors decision to
provide B.G. with unsupervised access led to P.G. being sexually abused by her
father. Her decision also placed the children in close, regular, and
unsupervised proximity with the person who had abused them
[1080] In the course of pursuing
custody of the children in favour of B.G., the Director decided that she did
not have to abide by orders and directions of this Court about B.G.s
supervised access to the children. No credence can be given to the Directors
current advice to this Court, communicated through counsel, that she will abide
by orders of this Court. Her advice is inconsistent with the position she
recently took before another judge of this Court.
[1081] The Director provided false
and misleading information (in the Form A) to the Provincial Court to support
the Apprehension and failed to correct or amend even though its social workers
(depending on whom and at what point in time), knew or ought to have known it
contained false and misleading information. She also relied on the Form A and
other incorrect affidavit evidence when supporting B.G.s custody application
in this Court, when pursuing her application for an extension of the temporary
custody order in the First Trial, and seeking the restraining order against
J.P. in the Provincial Court. The Director improperly interfered with Mr. Colbys
investigation because she did not agree with an order made by this Court.
[1082] The Director delayed in
delivering documents requested by another branch of government in order to
process the plaintiffs claims for compensation. Her conduct was either
deliberate or the result of gross neglect but in either case the conduct was
callously indifferent to the childrens needs.
[1083] In all, I found that the
Ministry employees who gave evidence, who were involved with the plaintiffs,
lost sight of their duties, professionalism, and their objectivity.
[1084] Even today, many of the
social workers involved in the case doggedly stick to their adverse view of
J.P., despite the Directors decision to withdraw her protection concerns, the
lack of any expert opinion evidence that J.P. suffers from a mental illness and
the findings from the First Trial that the children were sexually and
physically abused by their father. Many Ministry employees are unable to
comprehend, let alone accept, any reason for the Director to have reversed her
position, as she did, during the First Trial.
[1085] Some Ministry witnesses were
openly hostile towards J.P. when giving their testimony. Many of them refuse to
accept the findings of fact made during the First Trial despite the claim made
by some of them that what they wanted all along was to have an independent
third party examine all of the evidence and determine if sexual abuse had
occurred.
[1086] Immunity afforded by the CFCSA
to good faith discretionary decisions is not afforded to the Director and
social workers in this case.
[1087] The Director is also
required to pay for special costs of the First Trial in an amount that will be
determined from further submissions.
[1088]
In conclusion, I wish to add that J.P. assumed and carried out the
Directors statutory mandate to protect her children. If it were not for the
Herculean efforts of J.P., the children would now, through the fault of the
Director, be in the custody of their father who sexually and physically abused
them.
Walker J.
_______________________________________
The Honourable Mr. Justice Walker