Citation: ☼British Columbia (Director of Child, Family and Community Services) v.

L.M.K. and D.K.

2023 BCPC 148
Date: ☼20230629
File No: F19377
Registry: Port Coquitlam

2023 BCPC 148 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF
THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46
AND THE CHILDREN:

C.E.M.K., A.E.M.K. and A.Y.K.

BETWEEN:

DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE

APPLICANT

AND:
L.M.K.
PARENT
AND:
D.K.
PARENT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE K. CRONIN

Counsel for the Director: S. Sim

Counsel for the Parent L.M.K.: L. Pippard
Counsel for the Parent D.K.: Self Represented
Place of Hearing: Port Coquitlam, B.C.
Dates of Hearing: January 16, 17, February 23, March 29,
31, 2023, May 24, and June 16 2023
Date of Judgment: June 29, 2023
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 1

Introduction

[1] L.M.K and D.K. (collectively the Parents) have three children: C. and A., who are
twins born [redacted for publication] and A.K., born [redacted for publication]. C. and A.
are now 17 years old, turning 18 in [redacted for publication], and A.K. is 15 years old

2023 BCPC 148 (CanLII)

(collectively the Children). A.K. now goes by the name K., and I will refer to them as K.
in my Reasons.

[2] This matter comes before the Court for a Protection Hearing, stemming from
allegations C. made on November 10, 2020, when she was 15 years old, that her father
sexually abused her over several years, starting at about age five. As a result of those
allegations, the Director is seeking a finding that the Children are in need of protection
pursuant to s. 40 of the Child, Family and Community Service Act (CFCSA), and an
order pursuant to s. 41(2.1) that the Children remain in the custody of the Parents under
the supervision of the Director for a period of six months with certain conditions. Those
conditions include a requirement that, unless the Director gives permission, the mother
is not to allow the father to have any access to the Children or to reside with them.

[3] The Parents oppose these orders and argue C. imagined the abuse and was
unable at the time of reporting to distinguish between reality and imagination. D.K.
denies the allegations occurred and L.M.K. does not believe the abuse took place.

[4] The Director called as witnesses social workers Megan Halper-Norfolk and
Amanda Ollson, and Corporal Dhaliwal, the lead investigator on the criminal matter. The
evidence included video and audio statements made by C. as part of the criminal
investigation, the criminal file prepared by Ridge Meadows RCMP, records prepared by
the Ministry of Children and Family Development (MCFD), poems and drawings made
by C., photos found on D.K.’s phone, and an Assessment Report. Both L.M.K. and D.K.
testified.

[5] I heard five days of evidence, and then following the conclusion of the evidence, I
invited counsel to make submissions on an issue involving jurisdiction. I have
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 2

considered all the evidence presented and submissions of counsel in coming to my

decision.

Background Facts

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[6] On November 10, 2020, C. told a friend that her father had been sexually
abusing her for a number of years. The two girls then told the friend’s mother about the
abuse, and she immediately took C. to the school counsellor. The school counsellor
notified the Ridge Meadows RCMP who attended the school to commence their
investigation.

[7] C. provided a videotaped statement to Cst. Gregory-Stephen that evening,

wherein she provided details of sexual abuse at the hands of D.K. over several years.
This statement was played in court as part of the Director’s case. L.M.K., and the
children A. and K. also provided statements to the police. None had knowledge of any
sexual abuse C. may have suffered, and none alleged any sexual abuse by D.K.

[8] On November 11, 2020, the police obtained and executed a warrant at the family
home where they seized a number of electronic devices. D.K. was arrested, and a
phone in his possession was seized as evidence. D.K. was subsequently charged with
sexual assault, sexual interference and incest involving C. He was advised he was
under investigation for possession of child pornography. D.K. was released from
custody on bail conditions that included he not attend at the family home and that he not
have contact with the Children.

[9] MCFD were alerted and requested L.M.K. sign a written safety plan. She
refused, and from evidence presented by the Director, became less engaged with
MCFD and the RCMP by December 2020.

[10] On January 8, 2021, C. sought the assistance of a lawyer, Robert Larmer. She
and L.M.K. attended at his office, where C. swore an affidavit recanting the allegations
against D.K. In her affidavit, C. explained, “I believed the contents of the (first)
statement were truthful, but after thinking about it further I realized that I had imagined
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 3

any scenario involving my father and I being sexual.” That affidavit was provided to
Crown Counsel.

[11] On January 9, 2021, the police discovered photos on D.K.’s phone that had been
seized at the time of the arrest. An extraction report for the phone was prepared and

2023 BCPC 148 (CanLII)

confirmed the phone contained images of young women or girls with objects, including
hairbrushes, inserted into their vaginas and rectums, and one innocuous photo of C.
sleeping. L.M.K. testified she took the photo of C. sleeping. The RCMP conducted an
investigation for possession of child pornography but found the age of the persons
whose images were captured could not be determined and no additional charges arose
from the discovery of the photos.

[12] In July 2021, the Crown stayed the criminal charges against D.K.

[13] The images on D.K.’s phone continued to cause concern for MCFD and in
particular whether any of the images were of C. Ms. Halper-Norfolk and Ms. Ollson
testified these photos were distressing, particularly because in C.’s first statement to the
police she described D.K. taking nude photos of her, and D.K. penetrating her with a
hairbrush.

[14] The Director conceded the images of the young women or girls appeared to have
been downloaded from the internet, based on the extraction report that showed the
configuration of those images was WebView. By comparison, the image of C. taken by
L.M.K. showed the photo was from a photo cache. The Parents denied having any
knowledge as to how the concerning images made it onto the phone, and testified the
phone was available for the Children to use.

[15] Based upon the evidence, I find there is no basis to conclude these photos were
images of C.

[16] On January 11, 2021, Cst. Gillin met with C. at her school and recorded an audio
statement, which was played in court. In that statement, C. confirmed she no longer
believed the sexual abuse she previously described had occurred. She said at the time
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 4

she made the allegations, she had trouble separating reality from what she described as
her brain making up a fake reality.

[17] The Parents testified C. has always had a very vivid imagination from childhood
and had imaginary friends. One piece of evidence was a song/poem written by C.,

2023 BCPC 148 (CanLII)

which included the lines “a million people stuck in one body, can’t figure out what’s
wrong with me, I’m a mess and I can’t speak,” and “acting for too long now I don’t know
what’s real and what’s a lie.”

[18] The Parents also said C. received treatment from a psychiatrist for anxiety
starting at age 11. A number of reports were put into evidence detailing that treatment.
The Director noted C. never received any diagnosis at that time related to auditory or
visual hallucinations.

[19] L.M.K. testified that several members of her immediate family suffer from
psychosis. She has concerns C. also has hallucinations. L.M.K. testified that when C.
was younger, she told L.M.K. about events that appeared not to be real. C. was
paranoid about people and feared bad things happening. C. heard footsteps when no
one was present, she saw a trench coat and hat in her room that no one else saw. She
heard a growl under her bed that was not heard by A. L.M.K. said these hallucinations
and auditory events started when C. was a toddler, and became worse as C. got older.

[20] L.M.K. testified that on November 25, 2020, C. showed her a drawing that
depicted people in C.’s head, each with a short description about their personalities. C.
said some of the people were toxic, that she sometimes becomes them, and they tell
her to do things she would not normally do. This drawing is before the Court as an
exhibit.

[21] C. has accessed a number of mental health resources, some organized by

MCFD and some organized by L.M.K. By all accounts, C. has significant mental health
challenges.

[22] D.K. has not resided in the family home since November 10, 2020, but does
spend time with the Children at the home, as agreed to by the Director.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 5

Court History

[23] On July 22, 2021, the Director applied for an interim supervision order. At this
time, the criminal charges against D.K. were stayed and he was no longer bound by bail
conditions. L.M.K. had also refused to sign a written safety plan.

2023 BCPC 148 (CanLII)

[24] The first appearance in court for that application was July 29, 2021. After a
contested Presentation Hearing, with evidence heard on November 24, 2021 and April
27, 2022, the Court granted an Order on May 17, 2022 directing that pursuant to s.
33.2(2) of the CFCSA, the Children remain in the care of the Parents under an interim
supervision order of the Director, pursuant to s. 41.1 of the Act. The order included
conditions preventing D.K. from having contact with the Children or residing with them
except with permission of the Director.

[25] On June 15, 2022 the Director filed an application for a three month supervision
order under s. 41(1)(a). A further application for a three month supervision order was
filed on June 28, 2022 under s. 41(1)(a). The next day, on June 29, 2022, the Director
filed an amended application for a three month supervision order under s. 41(2.1). On
January 10, 2023, the Director filed another amended application (further amending the
application filed June 29) for a supervision order under s. 41(2.1) for a period of six
months.

[26] The Director now applies for a six-month supervision order, with restrictive terms
that prevent D.K. from having contact with the Children or residing with them except
with the Director’s permission under s. 41(2.1).

Issues

[27] The following issues are before me:

1. Do I have jurisdiction to make the Order sought by the Director given

more than 12 months has passed since the interim supervision Order
was made on May 17, 2022?
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 6

2. If yes, are the Children in need of protection pursuant to s. 40 of the

CFCSA?
3. If yes, what period of supervision and conditions are appropriate?

Do I have jurisdiction to make the Order Sought?

2023 BCPC 148 (CanLII)

[28] The extension of supervision orders is governed by s. 44 of the CFCSA. Section
44(3.1) sets out a maximum period of time for a child to be supervised by the Director,
and reads as follows:

The total period during which a child is under a director’s supervision must
not exceed 12 months, including the periods, if any, during which the child
was under a director’s supervision before being removed under section
42(1).

[29] By contrast, s. 45(1) of the Act sets out the time frames for children to be in
temporary custody of the Director, or a person other than the child’s parent. The
calculation of time starts from the date of the ‘initial order’. Section 45(1.1) then allows
the Court to extend a time limit if the Court considers it in the child’s best interests.
Subsection (2) defines the ‘initial order’ as a temporary order made under ss. 41(1)(b) or
(c), or 42.2(4)(b) or (c). In simple terms, the start date for the time a child can be in the
temporary custody of the Director or a person other than a parent is the date of a
temporary custody order made at the Protection Hearing.

[30] The provisions under s. 45 do not apply to supervision orders. This includes
subsection (1.1) which allows the Court to extend the timeframe a child might be in the
care of the Director. There is no other similar provision setting out the timeframe for
supervision orders, other than s. 44(3.1). This provision sets out the total period during
which a child can be under the Director’s supervision, namely 12 months.

[31] Following a Presentation hearing, ss. 33.2(2) and 35(2)(b) allow for an interim
order for the Director’s supervision of a parent’s care of a child. The length of an interim
order made under these sections is not specified.

[32] Section 37 requires that a Protection Hearing be set for a date not more than 45
days after the Presentation Hearing. This time limit applies to interim supervision orders.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 7

[33] Section 42.2 deals with the enforcement of a supervision order. Section 42.2(5)
says the total of the following periods must not exceed 12 months: (1) the time the child
was under a supervision order before removal and (2) the time under any new
supervision order after removal.

2023 BCPC 148 (CanLII)

[34] If the Court at a Protection Hearing finds the child is in need of protection, the
Court can order that the parent’s care of a child be supervised by the Director for a
period of up to six months under s. 41(1)(a). Section 41(1) is subject to s. 41(2.1) which
says the Court must make a supervision order of up to six months in the following
circumstances:

a) There is an order made under s. 33.2(2), being an interim supervision

order,
b) There has been no removal under the interim supervision order, and
c) The child still requires protection.

[35] This brings us back to a 12-month maximum that seems to be contemplated by

s. 44(3.1) when the child is with a parent supervised by the Director, and the order is
extended. Where an extension of a supervision order is made under s. 44(3.1), the total
duration of supervision is a maximum of 12 months.

[36] An exception appears if the child is placed with a person other than a parent
under the Director’s supervision. Section 41(1)(b) says that in such a case, the
maximum term of the supervision order is for the period set out at s. 43. Section 43 sets
out times based on the age of the child. If the child is 12 years or older, s. 43(c) allows
for an order of up to 12 months, or a shorter period of time for younger children.

[37] The Act clearly sets out various timeframes for children to be temporarily in the
care of the Director or under the Director’s supervision. Upon review of the sections
under Division 4 of the Act, other than the various periods of care set out in s. 45, the
maximum period of time is 12 months.

[38] The Act is silent on the length of an interim supervision order, other than setting
out the Protection Hearing must be commenced within 45 days.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 8

[39] Section 44 addresses the extension of supervision orders and temporary orders.
While I acknowledge that an extension of an interim supervision order is unnecessary
because the Act does not specify how long an order can remain in place, I cannot
accede to the Director’s position that s. 44(3.1) only applies to supervision orders made

2023 BCPC 148 (CanLII)

after a Protection Hearing. There is no caveat within the language in s. 44(3.1) to
indicate this. This section clearly sets out a 12-month maximum for supervision by the
Director. On a plain reading of the section, supervision by the Director must not exceed
12 months, whether the order is interim or not.

[40] The Court of Appeal in T.L. v. British Columbia (Attorney General), 2023 BCCA
167 recently commented upon the statutory interpretation of the Act and made the
following comments at paras 117-121:

[117] To interpret s. 96(1) of the CFCSA, we are bound by the modern

principle (or approach) to statutory interpretation adopted in Re Rizzo &
Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 (S.C.C.) at
para. 21:
… the words of an Act are to be read in their entire context and in
their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of
Parliament.
[Citing Elmer Driedger in Construction of Statutes (2nd ed. 1983) at
87, emphasis added.]
See also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at
para. 26.
[118] The “entire context” of s. 96(1) includes the significant public interest
in protecting children from harm.
[119] The Supreme Court of Canada has held that in the child protection
context, the best interests of the child take priority over parental
rights. See Syl Apps at paras. 44–45 and the cases cited
therein; K.L.W. at para. 80.
[120] It has also described the child protection context as one that requires
“highly particularized decisions in difficult circumstances for everyone
involved”: K.L.W. at para. 46. Social workers “are inevitably called upon to
make highly time-sensitive decisions in situations in which it is often
difficult, if not impossible, to determine whether a child is at risk of
imminent harm, or at risk of non-imminent but serious harm, while the
child remains in the parents’ care”: at para. 100. To properly fulfill their
role, social workers must be able to act quickly and “take preventive action
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 9

to protect children”: K.L.W. at paras. 102–103; R. v. R.M.J.T., 2014 MBCA

36 at paras. 96–98 [R.M.J.T.].
[121] These contextual features properly inform the interpretation of
s. 96(1).

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[41] In arriving at my conclusion, I have considered the entire context of the Act, the
grammatical and ordinary sense of the wording in s. 44(3.1), and the time limitations set
out in Division 4. The object of the Act is to protect children from harm, and the best
interests of the child take priority over parental rights. Decisions about a child’s care and
supervision, and their need for protection must be determined in a timely manner.
Twelve months for a child is a significant length of time for the Director to supervise their
care. This is recognized consistently within the sections set out in Division 4 of the Act.

[42] The order for an interim supervision order was made on May 17, 2022 pursuant
to s. 33.2(2).

[43] The Director’s application for a temporary supervision order is made pursuant to
s. 41(2.1). That section reads as follows:

If an order was made under section 33.2(2), the child has not been
removed since that order was made and the court finds that the child
needs protection, the court must order that the director supervise the
child’s care for a specified period of up to 6 months.

[44] On a plain reading of s. 41(2.1), if the Court made an interim supervision order
under s. 33.2(2), the child has not been removed since that order was made, and the
child still needs protection, then the Court may only make a supervision order for a
period of no more than six months. However, the total period during which a child may
be under the Director’s supervision must not exceed 12 months (s. 44(3.1)).

[45] I am not aware of any case law that supports any other interpretation. British
Columbia (Director of Family and Child Services) v. (W.)M., 2001 BCPC 313 came to
the same determination, concluding s. 44(3.1) only allows for supervision for up to 12
months. I note (W.)M. may be distinguishable because it is not clear what section of the
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 10

Act the supervision order was issued under. However, I agree with Judge Smith who
stated the following at para 10:

“If there is a child protection concern, the Director of course can always
remove, or they can make a new, a fresh application for a supervision

2023 BCPC 148 (CanLII)

order. All of those are options that are open. But what is not open is to
extend the existing one beyond the 1st of June, 2001.”

[46] The Director submitted it would be improper to apply under s. 29.1 for another
supervision order after 12 months have lapsed if they continue to have safety concerns
about a child. The Director argues this would circumvent the 12-month maximum term
of supervision under s. 44(3.1). They submit instead the Director could only apply for
more intrusive options to protect a child such as a protective intervention order, placing
the child with someone else under a s. 8 agreement or removing the child under s. 30.
On a plain reading of the Act, s. 29.1 does not bar a subsequent application for another
supervision order. The 12-month maximum term of a supervision order simply ensures
the Director continues to have protection concerns and is able to present those
concerns to the Court in a subsequent application under s. 29.1.

[47] In this case, the interim supervision order was made on May 17, 2022. The
Children were never removed from the Parent’s care. As such, I find I have no
jurisdiction to make a further order of supervision as sought by the Director because
more than 12 months have passed since the making of that order.

Are the Children in Need of Protection?

[48] In the alternative, and to address the substantive issues that arise in this case, I
will determine whether the Children are in need of protection pursuant to s. 40 of the
CFCSA.

The Law

[49] Protection Hearings are governed by s. 40 as set out below:

40(1) At the protection hearing the court must determine whether the child
needs protection.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 11

(2) If the court finds that the child does not need protection, it must
(a) if the child was removed, order the director to return the
child as soon as possible to the parent apparently entitled to
custody unless the child has already been returned, and
(b) terminate any interim order made under section 33.2(2),

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35(2) and 36(3)
(3) If the court finds that the child needs protection, it
(a) must consider the plan of care presented by the director,
and
(b) may hear any more evidence the court considers
necessary to help it determine which order should be made
under section 41.

[50] I acknowledge this hearing is civil in nature and may be informal, that I may admit
any reliable hearsay evidence, including that of the child, and any oral or written reports
(ss. 66, 67 and 68). I acknowledge the guiding principles as set out in s. 2 of the Act and
that under s. 13(1)(b), if a child has been or is likely to be sexually abused by their
parent, the child will be in need of protection.

[51] B.S. v. British Columbia (Director of Child, Family and Community Service), 1998
BCJ No. 1085 (BCCA) is the leading case on this issue. Justice Lambert confirmed the
burden of proof rests with the party asserting the need for protection - the Director - on a
balance of probabilities. If the assertion being made is about a past event, as in this
case, then the Director must present evidence to show the events are more probable to
have occurred than not.

Analysis

[52] While I accept the Director’s submission that C.’s first statement to the police was
detailed and alleged very serious sexual abuse by her father over a number of years, I
must balance that against her recantation, and the reason she says the abuse did not
occur.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 12

[53] C. told Cst. Gillin in her statement on January 11, 2021, the following:

…but upon sort of thinking about it more I realized, um, that a lot of it, or
probably all of it, like all of, all was like ah, made up sort of stuff in my
head. Not purposely made up by myself, it’s, I have a lot going on in my
head that we are trying to figure out currently with like psychologists and,

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and therapists and stuff, um, where I have these sort of like, made up
realities that I don’t con-, consciously create, they’re sort of created
without me realizing . And I can sort of like, ah, I’ll, I’ll accidentally like
zone out into this like, made up reality and it’s very hard for me to currently
decipher what is real and what is not. [Ex. 3, P. 534 of 604]

[54] In assessing the reliability of C.’s evidence, I recognize her language in this
statement is different than in her previous statements in that there are many references
to ‘we’ and ‘us’. Additionally, the affidavit she swore recanting the allegations about her
father clearly contains formal language that is not expected of a 15-year-old. I do have
some concerns about the language in the affidavit, and I expect it may well be language
drafted by Mr. Larmer, the lawyer who prepared it. I still must, however, consider the
content of these utterances.

[55] The Director submits I ought to find the abuse occurred by relying upon C.’s first
statement to the police. While that statement standing alone is compelling, when placed
in the context of all the other evidence presented at this hearing, I am unable to find on
a balance of probabilities that the abuse took place. Quite simply, I am unsure what took
place in the family home, even on a balance of probabilities.

[56] I find that C.’s decision to seek help from her mother is consistent with C.
determining that the abuse had not occurred, but was instead a fake reality. Who else
could she have turned to for assistance setting the record straight regarding the criminal
charges? I accept L.M.K’s evidence she tried to assist C. in accessing mental health
supports and legal advice given the natural concerns about the initial complaint of
sexual abuse. I am not concerned about C.’s reference to ‘we’ and ‘us’ in her statement
to Cst. Gillin because I accept C. came to understand that the abuse had not occurred,
and she turned to her mother for assistance.
BC (Director of Child, Family and Community Services) v. L.M.K. and D.K. Page 13

[57] The difficulty I have, when I consider all of the evidence presented, is that I
cannot find on a balance of probabilities whether or not the alleged sexual abuse
occurred. I am left unable to determine if it is more probable than not that this abuse
took place.

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[58] C. is now 17 years old, turning 18 in [redacted for publication]. Her vulnerability
has decreased significantly since she made these allegations, particularly when I
consider the mental health supports she has received, and the information and supports
MCFD have provided her including tools to keep her safe.

[59] The Director does not allege the other children were sexually abused, and there
is no evidence to support such a finding. Thus, the need for protection of A. and K. only
follows if I find the abuse described by C. at the hands of D.K. took place, and I have
not made such a finding.

[60] I conclude that the Children are not in need of protection.

[61] Decision

[62] I find that I do not have jurisdiction to make the order sought. Even if I did have
the jurisdiction, I find the Children are not in need of protection. Accordingly, I dismiss
the Director’s application.

_____________________________
The Honourable Judge K. Cronin
Provincial Court of British Columbia