IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101119

Docket: 46592

Registry:
Vernon

Between:

The Director of
Child, Family and Community Service

Appellant

And

R.M. and M.M.

Respondents

Before:
The Honourable Mr. Justice Sigurdson

On appeal/judicial review from: Order of the
Provincial Court of B.C. made on June 16, 2010 (In the Matter of
the Child, Family and Community Service
Act and the Child, M.K.M., born May 14, 2009,
Vernon Provincial Court File No. 5685)

Reasons for Judgment

INTRODUCTION

[1]          
This is an appeal pursuant to s. 81 of the Child, Family and
Community Service Act, R.S.B.C. 1996, c. 46, from the decision of Judge
R.R. Smith of the Provincial Court of British Columbia of June 16, 2010.  In
his decision, Judge Smith denied the Director’s application for a declaration
that the child, M.K.M., was in need of protection pursuant to s. 40 of the
Child, Family and Community Service Act.

[2]          
The Director appeals on the basis that the trial judge made an error of
mixed law and fact in concluding that the child was under no risk of future
harm or not in need of protection.

[3]          
Counsel for the respondent parents argues that the appellant has not
raised a proper ground for appellate intervention and that the trial judge’s
decision was correct in any event.

BACKGROUND

[4]          
M.M. is the biological mother of the child, M.K.M., born May 14, 2009. 
R.M. is M.M.’s partner and the biological father of M.K.M.  R.M. has two children
from an earlier relationship.

[5]          
For three days from June 14-16, 2010, Judge Smith heard the trial of the
Director’s application that the child, M.K.M., was in need of protection.

[6]          
The basis of the Director’s application was entirely historical.  That
history was as follows.  After a ten day trial in 2001, the same judge, Judge
Smith, made a finding that K.R., the first child born to the respondent M.M.,
was in need of protection, and that it was “probable” that her partner, the
respondent R.M., who lived with M.M., had intentionally injured the child K.R. 
Those injuries included three black eyes and seven fractured ribs from three
different events, which the judge found had all occurred in the presence of
R.M., with the more serious injuries (rib fractures and later black eyes) all
occurring when R.M. was the only adult present.  The child also suffered a
broken elbow.  Ultimately, after a series of hearings, the child K.R. was
removed and since then has remained in the care of her biological father, P.R.

[7]          
The couple R.M. and M.M. stayed together and on May 29, 2009, had a
child, M.K.M.  The Director learned of the birth of M.K.M. when M.M. was seen
in Quesnel with the child.  The sole ground advanced by the Director for the
removal of M.K.M. was the historic ground based on the earlier physical harm to
K.R. by R.M., which resulted in her removal.

[8]          
The Director’s principal concerns were the judge’s prior finding that
M.M. was unwilling or unable to protect the child K.R. from harm from R.M.,
that M.M. continued to deny that R.M. caused the injuries to K.R., and that R.M.,
on an ongoing basis including in the trial in 2010, denied that he caused the
injuries to K.R.

[9]          
At trial, the Director called team leader David Hentschel and social
worker Brian Bingham.  The respondents called as witnesses the father, R.M.;
the mother, M.M.; a psychologist, Dr. Gary Lea; a family doctor, Dr. Tanja
Redelinghuys; an obstetrician, Dr. Laura Fellenz; the child’s paternal
grandmother, G.M.; and the child’s paternal aunt, T.B.

[10]       
After the three day hearing, Judge Smith gave extensive oral reasons in
which he dismissed the Director’s application.  For the first and a substantial
part of his judgment, he reiterated the history of and the reasons for the
removals involving K.R., in part because R.M. and M.M. denied reading his
earlier lengthy reasons that were handed down when he removed K.R. almost 9
years earlier.  The judge said, at para. 43 of his reasons that “[t]hey do
not want to take the time to read my judgment … they want to be revisionists
with what happened historically”.

[11]       
Judge Smith made it very clear, notwithstanding the apparent denials of
R.M. and M.M., that the serious injuries to K.R. had occurred while she was in
the care of R.M.

[12]       
He concluded that, in his view, there were five reasons the circumstances
in connection with M.K.M. were different from the events with K.R.  In summary,
they were as follows.

[13]       
First, Judge Smith pointed out the passage of time as a changed or
different circumstance.  M.M. was 23 years of age at the time of K.R.’s removal;
she was now 35 and a successful businessperson working her way up to be high in
management at a grocery chain.  Judge Smith pointed out that less has changed
with respect to R.M., as he was already 32 at the time of K.R.’s removal and
continues in the business he had at that time.  Judge Smith noted M.M.’s
comment that if she got wind of R.M. harming M.K.M. in any way she would leave
him, although M.M. maintained she believes that he never harmed K.R.  However, as
pointed out by Judge Smith, M.M. had commented to a girlfriend that R.M. had
“grabbed [K.R.] by the arm and threw her across the room” and that K.R. had either
hit the wall or the doorjamb.

[14]       
The second difference was that M.K.M. is the biological child of R.M.,
and not a step-child, as K.R. was.  Dr. Lea, a clinical psychologist,
described the so-called Cinderella effect, relying on multiple studies that
indicated stepchildren were between seven and forty times (depending on the
research) more likely to be abused than biological children.  Judge Smith also mentioned
that counsel for the Director, Ms. Christiansen, had asked Dr. Lea on
cross-examination about step-parents who have a known history of abusing once,
and the likelihood of that step-parent abusing not only another step-child, but
a biological child.

[15]       
Based on Dr. Lea’s response, Judge Smith noted in his reasons that
the Cinderella effect would be “less of an issue in cases where there was known
past physical abuse”.  He said that it was common sense that the past is a good
indicator of the future, but to quantify the extent of the risk to a child of
abuse, one needed some empirical evidence.  However, the judge said the general
concept, that a past abuser was at greater risk to abuse any child again, was
understandable.  In this respect, the judge pointed out that it was significant
that R.M. had two biological children who were young children a decade ago. 
The judge observed that R.M. has seen those children every weekend plus
mid-week quite often, and the Ministry interviewed the mother and was satisfied
that there was no cause for concern with respect to R.M.’s care of those
children.

[16]       
The third factor in Judge Smith’s view was the clinical assessment of Dr. Lea,
a clinical psychologist.  Dr. Lea assessed R.M., testified, and said that
he did not think that M.K.M., now aged one, was in any need of protection from
R.M.

[17]       
The fourth factor was the fact that there have been no new complaints of
harm to any child in either R.M.’s or M.M.’s care over the last decade.  The
judge did, however, note that Dr. Lea, in testing R.M., said that it was
not above R.M. to “fake good” when doing some of his testing.

[18]       
The fifth factor that Judge Smith pointed to was the safety plan in
which the parties have participated since the Ministry became involved with
M.K.M.  The paternal and maternal grandparents of M.K.M. had taken shifts coming
to Vernon to supervise the parents when M.K.M. has been in their care.  As part
of the safety plan pending the hearing, R.M. and M.M. took the child to a
doctor on a nearly weekly basis.

[19]       
Judge Smith in his reasons referred to the leading decision of Lambert
J.A. in B.S. v. British Columbia (Director of Child, Family and Community
Services) (1998), 48 B.C.L.R. (3d) 106 (C.A.).  Judge Smith said, at paras. 81-82
and 84 of his reasons:

[81]      All of those earlier findings still apply to what I
have to be deciding here today. Is the ten year period, with the Cinderella
effect, with Dr. Lee’s report, with no new complaints and one year of
watching the safety plan in place, sufficient that it could now be said,
following the test in the decision of B.S., that there is no need of
protection?

[82]      That case made it clear that what one needs to look
at is the balance of probabilities of risk, not the balance of probabilities of
actual harm, but risk of harm.  So I do not lose sight of that.

[84]      … it is clear in the
end that what the law is, is that I have to be satisfied, on the balance of
probabilities, that there is a real possibility that [M.K.M.] will be injured
if I allow a finding of fact that there is or is not a need of protection.  So
that is the test I have to be addressing and I am not losing sight of that.

SCOPE OF REVIEW

[20]       
There is no dispute on the scope of review; it was neatly summarized by
Madam Justice Russell in D.M.G. v. British Columbia (Director of Family and
Child Services), 2007 BCSC 461 at paras. 6-7:

…The appropriate standard of review of the B.C. Supreme
Court on an appeal pursuant to section 81 of the CFCSA is well set out
by MacKenzie J. in A.S. v. British Columbia (Director of Child, Family and
Community Service), 2006 BCSC 133 at paras. 19-21:

The scope of appellate review,
pursuant to s. 81 of the Act is narrow.  This Court does not re-hear the
matter and substitute its own findings.  The parties agree that this Court can
intervene only if the trial judge made an error of law or seriously
misapprehended the evidence.  There must be an error in principle, a failure to
consider all relevant factors, a consideration of an irrelevant factor or a
lack of factual support for the judgment: New Brunswick (Minister of Health
and Community Services) v. L.(M.), [1998] 2 S.C.R. 534, 165 D.L.R. (4th)
58, at paragraph 35; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001
SCC 60, at paragraph 13.  Errors in findings of fact are not to be overturned
unless the appellant can point to some palpable error.  The appellant must be
able to point to an error that is "plain to see:" Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paragraph 5.

In Re S.(P.J.), [2000]
B.C.J. No. 787, 2000 BCSC 582 at paragraph 6, Blair J. confirmed the
standard of review on an appeal from the provincial court on a child protection
proceeding, described by Lord Simmonds in McKee v. McKee, [1951] A.C.
352, 2 W.W.R. (N.S.) 181, (Canada P.C.) at p. 360, as follows:

[T]he question of custody of an
infant is a matter which peculiarly lies within the discretion of the judge who
hears the case and has the opportunity generally denied to an appellate
tribunal of seeing the parties and investigating the infant’s circumstances,
and that his decision should not be disturbed unless he has clearly acted on
some wrong principle or disregarded material evidence.

The deferential standard of review
in child custody cases is based upon the trial judge’s unique role in observing
the witnesses and in society’s interest in promoting finality and stability in
those types of hearings: Van de Perre, at paragraph 11-12.

To these comments, I add that the
same standard of palpable and overriding error applies to inferences of fact (Housen
v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paras. 19-25), and
to questions of mixed fact and law where the issue on appeal involves the trial
judge’s interpretation of the evidence as a whole (Housen v. Nikolaisen,
supra, at para. 36).  I also agree with the Director’s submission
that the appropriate standard of review will be correctness on a pure question
of law: Housen v. Nikolaisen, supra, at paras. 8-9.

GROUNDS OF APPEAL

[21]       
The grounds of appeal were stated in a number of ways in the appellant’s
submission.  Ms. Christiansen, I should say, was candid that the appeal
was not in the nature of a rehearing and the scope of review was narrow.  In
the course of her submissions, she recast her argument this way in terms of
errors that she asserted were reviewable.

[22]       
Ms. Christiansen argues that the judge, in failing to find that
M.K.M., in light of the history involving K.R., was at a real risk of harm and
in need of protection such that an order for intervention should be made,
committed the following errors of law or principle:

1.         failing
to make a finding or assessment of credibility of R.M. and M.M. in light of the
parents’ continual denial of R.M.’s past abuse;

2.         considering
the mere passage of time was significant in light of the serious injury to K.R.;

3.         ignoring
the seriousness of the potential injury to K.R. in assessing the risk to
M.K.M.;

4.         considering
the so-called Cinderella effect described by Dr. Lea without proper assessment,
including the studies that described that phenomenon, and not requiring presentation
of the evidence by the expert that showed the risk of harm by a parent who had
abused in the past.

[23]       
Ms. Christiansen in her written outline fleshed out these points in
the following way.  She submitted that the report of the psychologist called by
the parents, Dr. Gary Lea, was flawed by his failure to interview any collaterals
(including M.M.), the limited documentation he reviewed, the fact that he
permitted R.M. to retake a Child Abuse Potential Inventory after R.M.
invalidated the results of the first test, and the failure to refer to studies
directly assessing the increased risk of abuse to the biological child of a
parent who has previously abused a step-child.  Ms. Christiansen argued
that the judge placed too much weight on the assessment of Dr. Lea,
especially in light of what she called the flawed nature of his assessment. 
She argued that the trial judge failed to give sufficient consideration to
under-reporting and ongoing denial by R.M. of past harm, and that he placed too
much weight on the ability of M.M. to protect the child when she had failed to
do so with K.R. in 2001.  She further argued that the judge erred by
considering that the mere passage of time, without any acknowledgement of responsibility
or subsequent treatment or counselling, was sufficient to ameliorate the risk
of future harm.

DECISION

[24]       
The Director, given the history of this matter, was obviously concerned
about the safety of M.K.M. and disagreed with the correctness of the trial
judge’s decision.

[25]       
Although counsel for the Director took me to numerous passages in the
trial transcript in support of her submissions, none of the points she raised amount
to errors of principle or law or demonstrate a finding of fact that could be
said to be palpably wrong.  The Director is, in essence, simply seeking a
rehearing in the absence of demonstrating an error of principle or law, or a
palpable error in fact.

[26]       
Ms. Christiansen acknowledges, as I understand her submission, that
Judge Smith’s summary in para. 84 of his reasons is an accurate summary of
the law from B.S..  At paras. 26-31 in that case Lambert J.A. said:

[26] I do not have any doubt that the burden of proof in
child protection cases rests on the person who asserts the need for protection. 
Nor do I have any doubt that the standard of proof is the standard in civil
cases, namely, the standard usually called "the balance of
probability". Sometimes, in applying that standard, the seriousness of the
allegation being made is thought to require a higher and more particularized
measure of confidence on the part of the decision maker that the balance of
probability test has been met.  But the test remains the same.  The
weight of the evidence must show that it is more probable than not that the
assertion being made is correct.

[27] When the assertion being made is about a past event then
the actual occurrence of that event must be shown by the weight of the evidence
to have been more probable than not.  That is the case with past abuse, neglect,
or harm to a child.

[28] But where the assertion being made is that there is a
risk that an event will occur in the future, then it is the risk of the
future event and not the future event itself that must be shown by the
weight of the evidence to be more probable than not.  That is the case
with consideration of a threat of future harm.

[29] The result is that in considering past abuse the degree
of certainty that it has occurred will be more than is required in considering
whether abuse will occur in the future.  A ten percent risk of future
abuse may meet the test of the risk being shown to exist on the balance
of probabilities, whereas a ten percent assignment of the probability that the
abuse had occurred in the past would not meet the balance of probability test.

[30] In assessing the risk of future harm, (which is
called the threat of future harm in s.2), there is room for a variable
assessment depending on the nature of the threatened harm which is in
contemplation.  A threat of harm through neglect of the child’s hygiene
might well have to be much more probable in order to meet the balance of
probability test than a threat of serious permanent injury through physical or
sexual abuse.  Generally speaking, a risk sufficient to meet the test
might well be described as a risk that constitutes "a real
possibility".

[31] I have received a good deal of stimulation on this
subject from the decision of the House of Lords in In Re H. and Others,
[1996] A.C. 563.  In that case five law lords reached considerable
agreement with each other on some of the issues of proof under the English
legislation but split 3-2 on one point about the balance of probability and
split 3-2 in the result.  I would be disinclined to adopt any particular
approach that was presented in that case because the English legislation is
markedly different in some important respects from our legislation. 
However, I wish to say that I would adopt the views expressed by all five law
lords that the word "likely" has a primary meaning of "more
probable than not", but a recognized secondary meaning of "a real
possibility", and that the secondary meaning captures the intent of
Parliament in the use of the word "likely" in relation to the possibility
of a child suffering harm in the future.

[Emphasis
in original.]

[27]       
Although there were discussions between the judge and counsel during the
trial as to the meaning of the appropriate test for intervention by the Court,
I find that Judge Smith was aware of the proper test and purported to apply it. 
The question is whether he made a reviewable error in doing so.

[28]       
The appellant’s first allegation of error is the failure of the judge to
make a finding of credibility in light of the continued denial of past abuse by
R.M. and and continued denial of knowledge of that abuse by M.M.

[29]       
Judge Smith, I find, was well aware of the continued denial by the
parents and assessed that in considering the possibility of risk to the child. 
The judge was aware that the parents failed to recognize their responsibility
in connection with K.R., and he took this into consideration.  The Director’s
counsel suggests that a more complete credibility assessment was required, but
I disagree.  I think it was a matter for the trial judge to consider in
weighing all of the evidence and deciding whether the test for intervention by
the Court was satisfied.

[30]       
The second alleged error in principle was that the judge placed too much
weight on the mere passage of time.  I do not think it is fair to say that it
was simply the mere passage of time that Judge Smith relied on.  He relied on
the fact that the mother was older and, as well, the fact that there were a
lack of complaints in the relevant period, including, perhaps most importantly,
any arising from the regular contact that R.M. had with his biological children
during that lengthy period.  The judge observed that this regular contact, to
the knowledge of the Director, was without incident.

[31]       
The third alleged error appears to be that the Judge ignored, in
applying the test from B.S., the potential of serious harm to M.K.M.,
given the past serious harm to K.R.  Put another way, the argument was that the
evidence sufficient to meet the test is less when the risk of harm is
potentially so great.  However, the trial judge was well aware of the harm to
K.R. ten years earlier, the seriousness of the injuries that she suffered, and
the significance of the issue that he had to decide. I think that was a matter
for the trial judge to weigh and no error has been shown.

[32]       
The most significant error that the Director asserts is the reliance by Dr. Lea
on the so-called Cinderella effect.  This arose from a letter dated May 14,
2010, that followed the initial report of Dr. Lea, which responded to the earlier
findings of Judge Smith that the serious injuries to K.R. occurred in July 2000
when R.M. was present and that the more serious injuries occurred when he was
the only adult present.  The letter by Dr. Lea described that for 40 years
studies have recognized that stepchildren were in a greatly elevated risk of
abuse.  He said, as was quoted at para. 63 of the trial judgment:

statistically speaking, then [R.M.] along with all parents,
represents a far less likely risk of physical harm to his biological offspring
than to any of his stepchildren, on the order of seven to 40 times depending on
their research cited.

He referred to studies done two decades ago, by the same
researchers in 2001 and by other researchers in 2005.

[33]       
Counsel for the Director appears to disagree with this concept, but, if
so, the Director was at liberty at trial to introduce expert evidence to the
contrary.  Ms. Christiansen cross-examined Dr. Lea, and demonstrated
that even if the risk of abuse for the biological child is significantly less
than for the step-child, there is still a greater risk that a past abuser will
abuse again.

[34]       
Ms. Christiansen’s argument appears to be that the judge failed to
require that the Cinderella effect be completely explained in the context of a
biological parent who has been abusive as a step-parent, that the empirical
evidence ‑ the studies Dr. Lea referred to that show the full extent
of the increased risk ‑ be produced in evidence at trial.  The Director
argues that Dr. Lea failed to produce the studies that showed because a
parent had abused a step-child in the past he was at a higher risk to abuse a
biological child.   She submitted that the report of Dr. Lea was flawed as
he only interviewed R.M. and allowed him to be retested.

[35]       
I am not persuaded that the manner in which Judge Smith considered the
evidence of Dr. Lea and the so-called Cinderella effect was in error.  Significantly,
Judge Smith was aware of the increased risk to a child at the hands of a person
who has abused in the past, and took that into consideration in reaching his
decision.  The Director’s counsel cross-examined Dr. Lea and was entitled
to lead evidence to the contrary if she disagreed with it.

[36]       
While the Director disagrees with the judge’s conclusion, and the weight
that he put on the evidence of Dr. Lea, no reviewable error has been
demonstrated.

[37]       
In this case, the trial judge was particularly well-suited to the task
at hand.  He had conducted the trial in the past that resulted in the removal
of K.R., had heard these parents on numerous days of trial between 1999 and
2001, and was thoroughly familiar with their circumstances.  He gave full
reasons for his decision.  He applied the correct test for determining whether
to intervene and find a child in need of protection.  No error of law or
principle was identified.  No error in his findings of fact was asserted.  I
think that the Director is simply asking this court to retry the case, and
reach a different conclusion.

[38]       
The judge considered expert evidence that a step-parent is more likely
to abuse a step-child than a biological child.  However, the judge was well aware
that a past abuser is more likely than a non-abuser to abuse another child. 
The Director’s argument appears to be that the judge failed to require more
information to demonstrate the extent of that identified risk and the extent
that a past abuser of any child was likely to reoffend.  That is not a proper
basis for me to intervene.

[39]       
As I am unable to find any error committed by the judge, the appeal must
be dismissed.

“J.S. Sigurdson J.”

The
Honourable Mr. Justice J.S. Sigurdson