February 20, 2026

On January 29, 2026, the Honourable Judge R. McQuillan of the BC Provincial Court released his Reasons for Judgment in this matter. The hearing had consumed two and a half days of court time over a month and a half — notably, Judge McQuillan observed that this was far from the summary proceeding the legislation contemplates.

First, some context on what kind of hearing this was

This was a presentation hearing under section 35 of the Child, Family and Community Service Act — not a full protection trial. The judge was not deciding whether Bennett is in need of protection. He was deciding two narrower questions: did the Director have reasonable grounds to remove him on August 28, 2025, and what should happen on an interim basis while the matter awaits a full protection hearing?

The legal threshold at this stage is deliberately low. As the judge noted, the Director’s burden is simply to establish that there is admissible evidence which, if accepted, could lead to a finding that the child is in need of protection. Factual disputes are generally resolved in favour of the Director. Credibility findings are left for the full protection hearing.

That context matters enormously when reading this decision.

Background: How this family came to be involved with MCFD

Bennett was born December 19, 2018. He has autism, ADHD, is partially fed via a G-Tube, and has other diagnoses. His mother, Darian Thomas, has had sole custody and sole guardianship of Bennett since a BC Supreme Court order made May 12, 2020, in which his father consented to relinquish those rights.

The family’s involvement with MCFD began not through child protection but through the Children and Youth with Special Needs division (CYSN), in a voluntary and supportive capacity starting in 2021. It was Darian who initiated that involvement, seeking help for Bennett.

By May 2025, Darian had escalated her requests, seeking 24-hour two-to-one Behaviour Interventionist (BI) support — a request backed by letters from Bennett’s own paediatricians. MCFD was unable to provide that level of support and instead began discussing a Special Needs Agreement, under which Bennett would live outside the family home while Darian retained guardianship. As a shorter-term measure, CYSN agreed in August 2025 to fund 12 hours per day of BI support, explicitly described as temporary, until Bennett comes into care.

On July 26, 2025, Darian was admitted to Hospital with gallbladder complications. Because she had no alternative caregiver in place, and after consulting MCFD’s centralized screening line, Bennett was admitted to Hospital on what is called a “social admission” — meaning there was no medical reason for him to be there; he was admitted solely because his caregiver was unavailable.

He remained there for over a month. He was formally removed by the Director on August 28, 2025, and has been residing at THE House, a 24-hour staffed resource, since September 5, 2025.

What didn’t hold up in court

The Director relied on three grounds for protection under section 13(1) of the CFCSA. Two of them failed entirely.

Ground 1 — Alleged threats and harm (s. 13(1)(a))

On August 27, 2025 — the day before the removal — MCFD received a child protection report allegedly showing Darian making threats toward Bennett, failing to bathe him, and withholding food from him.

At paragraph 95, Judge McQuillan was direct: the video was never entered into evidence. It was not provided to the mother. Under those circumstances, the court said it was unable to place any weight on this evidence. The ground failed.

Ground 2 — Neglect: food deprivation and soiled diapers (s. 13(1)(d))

The neglect allegations rested primarily on notes from a conversation between a social worker and BI, which recorded that the BI had observed the mother withholding food from Bennett and leaving him in soiled diapers for extended periods.

When the BI testified, he denied making those statements. He said the opposite under oath: that he had never observed the mother deny Bennett food or leave him in soiled diapers. He testified that the mother actively encouraged Bennett to eat orally and always provided him with food. He also testified that while in hospital, the mother regularly sent food packages for him to give to Bennett.

Supervising Behaviour Analyst — who had been involved with the family since December 2021 — testified that she had never observed the mother withhold food from Bennett, that he was always offered food, and that she and the BI team worked regularly with the mother on strategies around eating, diapering and toilet training. She said the mother’s physical health had been taking a toll before her hospitalization, but that she was still able to adequately care for Bennett with supports. She had no concerns about the mother’s mental health, and described her as consistently proactive in seeking resources.

The mother herself denied the allegations.

Judge McQuillan acknowledged the general principle that conflicts in evidence are resolved in favour of the Director at the presentation stage — but noted that this particular allegation rested almost entirely on the BI’s earlier statement, which he had now fully retracted, and which was contradicted by the Behaviour Analyst’s direct testimony. The judge was not inclined to place significant weight on that earlier statement. This ground was not supported.

The “improvement after removal” argument

The Director also pointed to Bennett’s progress since being placed at THE House — improved eating, partial toilet training, attending school, reduced aggression — as evidence that something had been wrong before.

Judge McQuillan rejected this reasoning. Attaching causation between the improvements and the removal, he wrote, is speculative. Bennett’s history showed that improvements are sometimes followed by regressions. More fundamentally, the judge questioned whether the Director can even rely on post-removal circumstances to justify the removal itself — which must be evaluated based on what was known at the time.

The one ground that did hold up

The court relied on section 13(1)(h): a parent is unable or unwilling to care for a child and has not made adequate provision for the child’s care.

The judge’s reasoning was narrow and situational:

Darian had been hospitalized without first securing an approved, funded care plan for Bennett. This resulted in Bennett being admitted to Hospital on a social basis — with no medical justification — for over a month. The plan she proposed involved Bennett residing at her home under 24/7 care by the BI team, overseen periodically by her brother Dylan (the Uncle). But she acknowledged she did not have funding for 24-hour BI support, and that she owed the BI team for work already completed. CYSN had made clear that full 24-hour funding would not be approved. The Uncle’s plan depended on that same unfunded support. The microboard concept the mother had begun exploring was, in the judge’s words, just an idea with no real structure behind it.

On those facts, the judge concluded at paragraph 107 that the Director had established evidence supporting s. 13(1)(h) protection concerns.

Importantly, the judge also found that the mother has consistently been an active and engaged parent. She sought out resources. She explored a Special Needs Agreement. She stayed connected with Bennett throughout both hospitalizations, arranged BI coverage, sent food and gifts, participated in meetings with social workers and medical professionals, and advocated for her son at every turn. The court did not describe her as abusive, neglectful, or malicious. It acknowledged directly that the funding situation may well be unfair — but stated it he has no authority to compel the Director to provide the level of support the mother needs.

What the judge said about the cut-off of contact

One detail in the judgment deserves separate attention. Judge McQuillan noted that he has “some concerns about the manner in which all contact between Bennett and his family and support team were cut off at the time of his removal.” He did not elaborate further, stating it was not a consideration at the presentation hearing stage. But the concern was recorded.

The record also shows that following the removal, Darian was not permitted any contact with Bennett for two weeks, and was not told where he was being taken, though she expected it would be THE House given prior discussions. Bennett’s long-standing behaviour analyst who had been with him on the day of removal, had helped calm him during a distressing medical procedure, and had explicitly told the social worker that cutting off the BI team was not in Bennett’s best interests — she has not been permitted any further involvement since.

What this decision is not

To be clear about what this judgment does and does not say:

It is not a finding that Bennett was abused. It is not a finding that he was starved, or left in soiled diapers. It is not a finding that his mother made threats toward him. It is not a finding that she is an unfit parent, or that she harmed him.

The abuse and neglect allegations were specifically examined and found not to be supported by the evidence. The video was excluded entirely. The food and diaper allegations rested on a statement the person who allegedly made it denied under oath.

What the judgment is, is a finding that during an acute medical crisis — with both mother and child separately hospitalized — there was no funded, approved, viable care plan in place that satisfied the Director. The court found that on those specific facts, the threshold for a s. 13(1)(h) concern was met.

That is a systems failure being framed as a protection issue.

What comes next

The next court date is March 12, 2026, when a commencement date under section 37 will be set for the full protection hearing.

At that stage, the evidentiary landscape changes significantly. The deference to the Director’s position that applies at the presentation stage does not carry forward in the same way. The Director would need to prove actual protection concerns on the evidence. Credibility will be at issue. The full context of this family’s history — including the years of voluntary engagement with CYSN, the documented advocacy, the medical complexity, and the structural funding failures — will all be part of that hearing.

The real question going forward is not whether Darian Thomas failed her son. The real question is whether the system failed both of them — and whether a mother being unable to secure funding for the care her child’s own doctors said he needed should be treated as a child protection matter at all.

That question deserves a serious answer.

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