DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2022 BCPC 193

Citation: British Columbia (Child, Family and Community Service) v. T.J.T. 2022 BCPC 193 Date: 20220923 File No: F19246 Registry: Abbotsford 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: M.V.F. , born [omitted for publication] M.G.F., born [omitted for publication] G.C.F., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: T.J.T. PARENT M.G.I.F. PARENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. DUNN Counsel for the Director: R.

Caldwell Counsel for the Parent, T.J.T. A. Florescu Counsel for the Parent, M.G.I.F. D. Maser Place of Hearing: Abbotsford, B.C. Date of Hearing: June 10, 2022 Date of Judgment: September 23, 2022

Introduction [ 1 ] At the conclusion of a Family Case Conference pursuant to Rule 2 of the Provincial Court (CFCSA) Rules, the matter regarding the children, M.V.F., born [omitted for publication], M.G.F., born [omitted for publication] and G.C.F., born [omitted for publication] was referred to a hearing on a jurisdictional issue. In this decision, I will use the term “the Children” when referring collectively to M.V.F., M.G.F. and G.C.F., and to the children’s mother, T.J.T., as “the Mother”, and the children’s father, M.G.I.F., as “the Father”. [ 2 ] The Director of Child, Family and Community Service, hereinafter “the Director”, has an outstanding application for an order under s. 44(3) (

b) of the Child, Family and Community Service Act , RSBC 1996, c 46 (“the Act ”). [ 3 ] The jurisdictional issue arises as follows. [ 4 ] The order sought by the Director is a six month extension to the temporary custody order placing the Children in the custody of C.M.W. and J.W. under the supervision of the Director. The Father and the caregivers, C.M.W. and J.W., are consenting to the Director’s application. The Mother is opposed. The Mother’s opposition relates to the current caregivers.

The Mother no longer consents to the Children being placed in the custody of caregivers, C.M.W. and J.W., and is proposing alternate caregivers. She is not seeking that the Children be returned to her at this time.

At the time of the hearing of this jurisdictional issue on June 10, 2022, both parents were under a Criminal Code order restricting their contact to the Children due to very serious allegations including the manslaughter of a child in their care. [ 5 ] The Director takes the position that it is not open to the Court to consider the Mother’s alternate caregivers on an application for an order under s. 44.

The Father is in support of the Director’s position on this issue, and as mentioned, has consented to the application for an extension. [ 6 ] The Director argued that the remedy for the Mother exists under s. 57 of the Act . Under that section, she can apply to cancel the order placing the Children with the current caregiver in favour of an order placing the Children with her proposed caregivers. The Mother argued that a change of caregiver is an option open to the Court at the s. 44 stage and not at the s. 57 stage as a plain reading of the

section indicates that a protection hearing must be completed prior to an application under s. 57 . [ 7 ] This matter came before me for hearing on June 10, 2022 and on that date, I found that an application for an order under s. 57 may proceed prior to a full protection hearing taking place. Once an order is made under s. 41, it is open to the parties to file an application under s. 57 . I note that subsequent to my ruling, the Mother filed an application on June 20, 2022 in the prescribed form pursuant to s. 57(2). [ 8 ] The outstanding issue that I was asked to determine is whether this Court has jurisdiction to consider an alternative caregiver at a hearing under s. 44(3) (

b) of the Act . Procedural History [ 9 ] The Children were removed from the Mother and the Father’s care on March 4, 2021. On April 13, 2021, an order was made placing the Children in the interim custody of the Director. On June 1, 2021, an order was made placing the Children in the temporary custody of C.M.W. and J.W. under the supervision of the Director for a period of three months pursuant to s. 41(1) (

b) and s. 60 of the Act . This was a consent order. This June 1, 2021 order was extended on October 26, 2021 for three months pursuant to s. 44(3) (b). [ 10 ] On January 25, 2022, the Director filed a further application for an extension under s. 44(3) (

b) first for three months and then on May 26, 2022, amended the period of time sought for the extension to six months. This application remains outstanding. Law and Analysis [ 11 ] Section 44(3) (

b) of the Act states as follows: If satisfied that the circumstances that caused the child to need protection are likely to improve within a reasonable time, the court may, in the child's best interests, . . . (

b) extend the term of the temporary custody order, but not beyond the period permitted under

section 45. [ 12 ] Section 1(1) defines “temporary custody order”: "temporary custody order" means an order made under section 41 (1) (

b) or (c), 42.2 (4) (

b) or (c), 49 (7) (

b) or (

c) or 54.01 (9) (

b) or (

c) placing a child for a specified period in the custody of a director or another person, and includes any extension of or change to that order; [ 13 ] When I look to interpret s. 44, I am guided by the directions from the Supreme Court in British Columbia (Director of Child, Family and Community Service) v. D.O.S., 2022 BCSC 168 a decision of Mr. Justice Crerar, who states starting at paragraph 41: [41] As a statutory court, the Provincial Court is limited to the powers bestowed upon it by the Act : R(

R) v. British Columbia (Director of Child, Family & Community Services) , 2006 BCCA 19 at para. 16 . That said, the Court also holds, by necessary implication, the power to control its own processes: R. v. 974649 Ontario Inc., 2001 SCC 81 at paras. 70-71 ; R. v. Barry , 2021 BCPC 59 at para. 28 .

[42]

Part 3 of the Act seeks to provide a clear and practical code governing child protection, setting out what the Director and the court may do at each stage, based on different conditions and outcomes.

Section 16 , for example, sets out a step-by-step procedural instruction manual of sorts for the Director to follow in investigating and evaluating whether a child needs protection. The

section is drafted in clear and definitive statutory language, with a pattern of “if A, the Director may do X” or “if B, then the Director must do Y” or “if C, the Director must not do Z,” in most of the 13 subsections. As stated in Hein at para. 20 , with respect to the court, “…the Act itself codifies the procedures to be taken by the court upon finding certain facts.” [43] Divisions 3 and 4 similarly set out a sequence of steps and options where protection is needed. The various sections delineate expressly the duties imposed upon the Director and the court.

They set out the options available to each of those entities. With respect to the court’s obligation, the Act expressly states whether the court must or may make an order upon certain specific conditions being met; it is precise on the court’s powers, and the preconditions for exercising those powers. [ 14 ] Section 44(3)(

b) precisely states at the conclusion of the hearing of an application filed under s. 44(1), if the circumstances that caused the child to need protection are likely to improve within a reasonable time, the court may, in the child’s best interest, extend the term of the temporary custody order. In this case, the temporary custody order is an order placing the Children in the custody of a person other than a parent with the consent of the other person and under the Director’s supervision. The discretionary power indicated by the used of the term “may” is with respect to the decision to extend the existing order.

There are two options available to the hearing judge, extend the order or not extend the order.

Section 44 does not allow for a third option of making a new order under s. 41(1) (b). [ 15 ] I find that the remedy the Mother seeks is not available under s. 44(3) (b). I previously found that the remedy is available under s. 57 . Section 57(3) states as follows: If the court finds that circumstances have changed significantly since the order was made, the court, in the child's best interests, may cancel the order and make no other order or may cancel the order and do one of the following: (

a) if the order was made under

section 42.2, 44, 46 or 54.01(9)(

b) or (

c) or (10), make an order under

section 41; (

b) in any other case, make any order provided for at the hearing where the order was made. [ 16 ] The order the Mother seeks is available through s. 57 , and there is therefore no legislative gap. It would be procedurally unfair to the other parties to a proceeding to raise an alternate caregiver at the s. 44(3) (

b) hearing. An application made pursuant to s. 57 allows the other parties to the proceeding to have statutory notice of the intended order sought and be able to take an informed position at the hearing. [ 17 ] As this was not the substantive hearing of the Director’s application for an extension of the existing temporary custody order, I was not asked to rule on the merits of same nor the application of the Act respecting First Nations, Inuit, and Métis children, youth and families , SC 2019, c 24 . If the Director’s application proceeds to hearing, these issues will be before the hearing judge. ____________________________ The Honourable Judge D. Dunn Provincial Court of British Columbia