On July 6, 2020, Adrian Crook won his battle for parents rights at the BC Court of Appeals, who slammed BC Child and Family Services for their bureaucratic overreach.

“It’s a big relief, but also discouraging that it took so long,” he said.

“For over 3 years now I’ve lived with the threat, often literally a written or verbal threat from a social worker or Ministry Director, that the MCFD will take “more intrusive action” if I failed to comply with their order. Because I’ve had to abide by the MCFD’s decision, my family life has been significantly negatively affected, seemingly with no recourse but to wait out the clock until my youngest turns 10 in 2022.

“But it’s not my personal circumstance that matters most here. Since going public with this case in the Fall of 2017, I’ve heard from dozens of families similarly affected by MCFD overreach. Many much worse off than my own. And in most cases, those families lack the resources or privilege I have to be able to take this fight on.”

Adrian Crook is divorced. His five children live half of the time with him, and half with his ex-wife. The children go to school near his ex-wife’s home, so it’s necessary for them to travel by public transit to school during the time they’re living with their father.

Like all good parents, Adrian Crook wants his children to be responsible, self-sufficient people capable of making good decisions for themselves.

As part of his parental training in this regard, he spent two years teaching his four eldest children how to travel safely on public transit to and from school. He travelled with them throughout this process, with the ultimate goal being his children would be responsible to safely travel without him or another adult accompanying them.

The children gradually progressed to being on their own for the entire trip.

In February 2017, the Ministry caught wind of this diabolical parenting practice and intervened to “protect the children.”

When the Ministry got involved in 2017, Mr. Crook’s children were 10, 9, 8, 7 and 5 years of age.

Over the course of the next two years, they issued a series of orders that effectively removed his parental decision-making ability.

Fortunately for Adrian Crook, The Honourable Madam Justice Fisher and the BC Court of Appeals sided with him and all BC parents when she ruled “the order made by the Director was unauthorized and of no force and effect.”

“I would allow the appeal, set aside the order of the chambers judge dismissing the petition, and replace it with a declaration that the order requiring the appellant to supervise his children on the bus, as expressed in both the June 23, 2017 and May 9, 2018 letters, was unauthorized and of no force and effect.”

Justice Fisher declined to order the Director of Child and Family Services to pay Adrian Crook’s court costs, however, so even in victory, the process is the punishment.

While this process wound its way through the courts, Adrian Crook, founder of 5 Kids, 1 Condo and Abundant Housing Vancouver, launched his campaign for a seat on Vancouver City Council. For more information, please visit VoteAdrianCrook.com.

Table of Contents

There’s a lot of ground to cover in this case, so I’ve broken it down into the following sections:

• Bureaucrat’s “Family Development Response”
• No “Decision” to Review
• The Appeal

Bureaucrat’s “Family Development Response”

The situation was so dire it took Angela Mann, the assigned social worker, almost two months to contact Adrian Cook to discuss the issue with him.

Ms. Mann’s safety assessment included the following:

Adrian has taught his four older children how to use transit in the city. He has spent the last two school years taking the bus with them and slowly stepping back so that they have taken transit to school on their own for the past few months.

Adrian ensures there is a cell phone with the children at all times and remains in contact with them while they are on the bus. He has also put location trackers on the cell phone. The children going on the bus are 10 years, nine years, eight years and seven years old.

Adrian has agreed to ensure a responsible adult with [sic] with the children at all times until further direction from the social worker while the assessment is taking place.

1)   Mr. Crook has the cognitive physical and emotional capacity to participate in safety interventions;

2)   Mr. Crook has the ability to access resources to provide necessary safety interventions;

3)   There is evidence of a healthy relationship between Mr. Crook and the children;

4)   Mr. Crook wanted the children to be honest with the social workers and to work collaboratively;

5)   Mr. Crook is interactive and engaging with the children and the children’s disclosures about him were all positive; and

6)   Mr. Crook has taken many safety precautions and teaching the children how to take transit on their own.

Ms. Mann’s testimony is she relied on the Canada Safety Council recommendation that no child below the age of 10 be left home alone.

Yolanda Drost, a child protection social worker and a team leader and Angela Mann’s boss, explained to Mr. Crook he had gone “above and beyond” what a parent should have to do to train their kids to be responsible transit riders. She and Ms. Mann said they understood this was not a case of Mr. Crook being negligent.

Ms. Drost told Adrian Crook she checked with lawyers at the Ministry of the Attorney General, and they said children under 10 years of age could not be unsupervised in or outside the home for any amount of time.

On June 16, 2017, Angela Mann sent Adrian Crook an email which stated in part:

I have consulted with Yolanda [Drost] and we feel that in our meeting our response was clear and non-negotiable. As stated in our meeting we put a lot of research into our response and stand behind it… Children must be supervised by an adult or responsible person 12 years or older at all times until they are at least 10 years old.

 

No “Decision” to Review

When Adrian Crook filed his application for a judicial review of the decision made by the Director of Child and Family Services, the Director claimed there was no “decision” to review – and demanded the court dismiss Mr. Crook’s application.

The Honourable Mr. Justice Kelleher, in his written decision in the original judicial review, disagreed.

[47]        The first issue is whether judicial review is available. The director argues there has been no “decision” to challenge. Counsel argues that the position of the Director vis-à-vis Mr. Crook has been to make recommendations.

[48]        I respectfully disagree. The only recommendations in the Director’s correspondence is the recommendation in the May 9, 2018 letter that Mr. Crook ensure that the children’s mother agrees with his plans ensure that professionals agree, and that he consider the Canada Safety Council Guidelines.

[49]        The email of June 16, 2017, quoted above certainly not recommendatory. The email described the Ministry’s position as “clear and non-negotiable”:

Children must be supervised by an adult or responsible person 12 years or older at all times until they are least 10 years old.

[50]        The Director relies on the fact that the Ministry closed its file so there is nothing to review. When the circumstances are considered carefully it becomes clear that this is a little more than a technical response.

[51]        The Ministry closed its file because, the letter of June 23, 2017, states:

You… have agreed that you will ensure your children are appropriately supervised at all times.

[52]        That is not what Mr. Crook agreed to. Rather, this was an interim agreement. As Ms. Mann said in the safety assessment Mr. Crook agreed that the children would be accompanied at all times “until further direction from social worker while the assessment is taking place”.

[53]        The assessment ended. There was no further agreement for Mr. Crook. But there was a “further direction” that is contained in the letter of June 2017 although the reasons for the conclusion in the letter of June 2017 were revised in May 2018. On June 23, 2017, in the letter quoted above, the director stated in the third paragraph:

I would like to take the opportunity to remind you that until the children are 10 years old they cannot be unsupervised in the community, at home, or on transit.

[54]        On May 9, 2018, the Ministry said it was writing the letter to clarify the reasons behind the decision [emphasis added.]

[55]        Any doubt about whether there was a decision from the Ministry is resolved by having regard to subsequent 2019 events.

[68]        Mr. Crook’s position is described in his affidavit quoted above at paragraphs 17 and 18. He is afraid to parent his children the way he wishes to. He feels he has no choice but to follow the MCFD’s direction. He feels it has impinged on his freedom as a parent and has caused him significant personal emotional stress as well as a strain on his relationship with his family. I am satisfied that a decision that is reviewable has been made.

Justice Kelleher then ruled Mr. Crook’s Charter rights to parent his children as he sees fit were not infringed by the State and dismissed his petition.

[76]        The petitioner acknowledges that the state has a legitimate objective of protecting children but says that his own rights as a parent must be given sufficient consideration.

[79]        I am not persuaded that the petitioner’s s. 7 right to liberty was engaged. In B. (R.) the court discussed the right to make decisions for a child in “fundamental matters” such as medical care. I am not persuaded that public transit decisions or supervision decisions are of a fundamental nature that the court was considering in B. (R.).

[80]        I respect that Mr. Crook is committed to these issues and feels strongly that his right to parent without interference is fundamental to him.

[81]        Even if this matter does engage the Charter by May 2018, the director engaged in the kind of balancing required by Doré.

[82]        I agree with the respondent that there is no Charter-related error justifying the intervention of the court.

[83]        I dismiss the petition for these reasons.

 

The Appeal

Crook v. British Columbia (Director of Child, Family and Community Service), 2020 BCCA 192

[1]           This appeal concerns the scope of the authority of the Director appointed under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA] to conduct an assessment of a child’s safety under s. 16(2)(b.1) of the CFCSA.

[2]           The appellant, Adrian Crook, contends that the respondent Director, through her delegates, purported to exercise a statutory power to make an order requiring him to supervise his children while taking public transit and that such an order is not authorized under s. 16(2)(b.1). The Director concedes that there is no authority to make orders under that provision but contends that no order was made in this case, only a recommendation, which is not subject to review.

[3]           On judicial review, the chambers judge found that the Director’s delegates had made a reviewable “decision” but concluded it was both reasonable and correct, and dismissed the petition.

[4]           The appellant seeks as primary relief a declaration that the “decision” of the Director exceeded her authority and jurisdiction. He also seeks other relief in the alternative, including relief under the Canadian Charter of Rights and Freedoms [Charter].

Held: Appeal allowed and declaratory relief granted.

[64]        I agree with the Director that social workers carrying out this mandate may give advice and make recommendations to parents. However, any such recommendations are not binding.

If a parent does not agree, the Director must then determine whether further steps are necessary. If the Director decides to take no action, her delegates can do nothing more than attempt to encourage parents to follow their recommendations. I would expect that in most situations, parents would be receptive to any advice or recommendation offered, but they are entitled to disagree.

[65]        In this case, it appears that the Director assumed that the appellant had agreed to supervise his children on the bus as the social workers had “recommended”.

However, the record shows that the appellant’s agreement was only given on an interim, not an ongoing basis. Despite that, the Director closed the file.

Given that the Director did not consider the appellant’s children to be in need of protection and took no further steps, her delegates had no authority to require the appellant to supervise his children on the bus (or elsewhere). It follows that this purported exercise of statutory power was unreasonable.

[66]        I consider the most appropriate remedy to be a declaration under s. 2(2)(b) of the Judicial Review Procedure Act that the order made by the Director was unauthorized and of no force and effect, as such a declaration will have practical utility in confirming the scope of the Director’s authority in conducting safety assessments under s. 16(2)(b.1) of the CFCSA.