C.A.C. v. British Columbia, 2017 BCSC 634

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.A.C. v. British Columbia , 2017 BCSC 634 Date: 20170317 Docket: 16-3811 Registry: Victoria Between: C.A.C.

Petitioner And Her Majesty the Queen in Right of the Province of British Columbia, the Government of the Province of British Columbia, and the British Columbia Ministry for Children and Family Development Respondents Corrected Judgment: The text of the judgment was corrected on the front page on December 12, 2017 Before: The Honourable Madam Justice Murray On judicial review from: The Decision of the Director of the Adoption Branch of the Ministry of Children and Family Development dated December 11, 2014. Oral Reasons for Judgment In Chambers The Petitioner: In Person Counsel for the Respondents: V.

Ryan Place and Date of Trial/Hearing: Victoria, B.C. January 13, 2017 Place and Date of Judgment: Victoria, B.C. March 17, 2017 [ 1 ] THE COURT: The petitioner applies for judicial review of the decision of the Ministry for Children and Family Development (MCFD) rejecting his application to adopt an unspecified child. He is seeking an order in the nature of mandamus compelling MCFD to approve his adoption application.

He also seeks general damages and special costs. [ 2 ] The facts are as follows, on June 17, 2013, the petitioner submitted an application to the Adoption Branch of the MCFD to adopt an unspecified child in MCFD care. The first step of the adoption process is an initial review to determine whether the application should proceed to a home study.

During the initial review adoptions staff discovered two issues that caused them concern: (1) that the petitioner had a recent charge for impaired driving, and (2) that the petitioner had been prohibited from having contact with children by an organization that he had volunteered with for many years. [ 3 ] The organization’s prohibition was imposed after the petitioner contravened, on more than one occasion, a rule that there must be at least two adults present when minor children are involved during programming. Clearly this rule is in place to protect both the volunteers and the children.

No other accusations of misconduct were brought against the petitioner. [ 4 ] The petitioner had appealed the sanction to the organization’s national office with no success. The prohibition was upheld. He was thereafter permitted to volunteer in an administrative capacity, but not have contact with children. [ 5 ] Based on this information the petitioner's adoption application was rejected. [ 6 ] The petitioner challenged this decision through the adoption agency's complaint resolution process, which involves an adoption team leader reviewing the decision.

During this process the petitioner was given the opportunity to challenge the decision of the organization, as well as to provide additional references. These positive references were taken into consideration on review, as was additional information from the organization. In the end the reviewer upheld the decision to reject the petitioner's application, stating:

The decision of the [organization] who observed your behaviour with children over a number of years and who after having reviewed your file at a national level still will not allow you to have contact with [children] is a significant collateral for the adoption application. This cannot be ignored or militated by character references of friends and colleagues. [ 7 ] The petitioner then launched an unsuccessful administrative review.

In the written decision the reviewer set out her reasons for upholding the decision to reject the petitioner's application as follows: According to the Adoption Act , during the requirements of a pre-placement assessment of the prospective adoptive parents any factors that are relevant to the best interests of the child must be considered and provided for. The [organization] is a national organization with clear guidelines regarding conduct of its members.

The organization had opportunity to observe the petitioner's interactions with children, over a lengthy period, and concluded that the petitioner was not able, after repeat warnings, to abide by policy created to ensure the safety of the children; namely, that two adults must be present when working with children. The information provided by the organization raises concern regarding the petitioner's ability to take direction and act in the best interests of potential children in his care.

Furthermore, the feedback regarding spatial awareness issues with children raises concerns in terms of the petitioner's awareness of the boundaries when interacting with children and youth. The children and youth available for adoption through the Ministry are particularly vulnerable due to histories of disrupted attachment, trauma, and neglect. The need for adoptive parents to model strong and clear boundaries is paramount for children's experience of emotional safety, and consequently the standards we apply to potential adoptive parents are higher than for the general population.

The information provided by the organization gives reason to believe that the petitioner does not possess a level of awareness in regards to the boundaries required for the special needs of our children. The references provided, though positive, were not considered adequate to mitigate the collateral provided by the organization.

The decision reached by the Ministry to not proceed with the petitioner's application to adopt was consistent with the legislation in considering the best interests of the child. [ 8 ] Having exhausted the adoption appeal process, the petitioner now appeals to this Court to have that decision overturned. Analysis [ 9 ] The primary issue to be determined is whether this Court has jurisdiction to review the decision of the Director. [ 10 ] Counsel for the respondent argues that it does not. He relies upon the decision of N.K. v.

British Columbia (Director CFCSA) , 2008 BCSC 1321 in which Madam Justice Loo held that the decision to discontinue the adoption process is not a statutory power of decision that is reviewable under the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241. The facts of the N.K. case are very close to the case at bar. In that case the petitioner's application to adopt a foster child was rejected based on information received by adoption employees. [ 11 ] In K. v. HMTQ (BC) & Others , 2003 BCSC 1248 , Mr.

Justice Parrett extensively considered B.C.'s adoption jurisprudence in the context of an application for an adoption order following the Director's refusal to grant an adoption. With respect to whether judicial review of an adoption decision was available, Parrett , J. cited W.A.M. v. British Columbia (Superintendant of Family and Child Service) , [1985] B.C.J. No. 2060 and stated the following at paragraph 38: The court found that the appellants did have a right to a limited judicial review for evidence of bad faith, capriciousness or arbitrariness with respect to the decision made. [ 12 ] Mr.

Justice Parrett's comment at paragraph 110 is pertinent to the issues in this application: The court over the years has recognized that the best interests of children is often better determined by those who are in regular and long- term contact than by a court with limited time and resources to explore the matter. The Director has been given discretion to consent to adoptions for a reason. It has a legitimate and important purpose. All of the decisions are quick to assert that where there is an indication of bad faith or capricious conduct, the court will not stand by and let a miscarriage of justice occur.

However, such an allegation must be made, evidenced, and determined before the court can then determine whether it should utilize its parens patriae jurisdiction. [ 13 ] While this comment is made in the context of parens patriae jurisdiction which does not apply here, the recognition of the Director's expertise in the realm of adoption is extremely relevant to the scope of reasonableness that their decision should be afforded. [ 14 ] From these authorities I conclude the following: 1) The decision to grant an adoption application is best determined by the Director of Adoptions and his or her staff. 2) The best interests of children is of paramount concern. 3) The Director must have unfettered discretion in the use of his or her statutory powers. 4) As a result of the above, the decision to reject an adoption application is not reviewable under the Judicial Review Procedure Act . [ 15 ] That does not end the analysis, however, as it does appear that where there is demonstrated bad faith or capriciousness on the part of the Director, the courts may review the decision to ensure the reasonableness and fairness of the process and its outcomes.

[ 16 ] I emphasize that this is simply a review of the conduct of the Director and adoptions staff to ascertain whether there is evidence of bad faith or capriciousness. It is not an exercise in which the court substitutes its view of what the decision should have been. [ 17 ] The petitioner argues that adoptions staff acted in bad faith by relying on gossip and hearsay. He took the court through emails sent to adoptions staff by two members of the organization and pointed out how the information in them was unreliable.

Though I can understand why the petitioner is concerned about some of the information passed on by people involved with the organization, it is clear from the evidence that adoptions staff focused on the prohibition and the reasons for it. The fact that the prohibition decision was reviewed and upheld by the national board of the organization takes it beyond gossip or conjecture. [ 18 ] Additionally throughout the complaint resolution process adoptions staff communicated and met with the petitioner and gave him a thorough opportunity to present other references.

They also gave him the chance to appeal to the organization to reverse their prohibition. [ 19 ] The petitioner contends that adoptions staff did not take into consideration the positive references. I am satisfied that they did but they concluded that those references did not alleviate the concerns raised by the organization prohibition. In my view, adoptions staff based their decision on concerns directly related to the well-being of children.

They were justly concerned by the decision of the organization to prohibit the petitioner to have contact with children. [ 20 ] Having carefully reviewed the evidence, I am unable to find that the Director or her staff acted with bad faith or capriciousness. As a result, it is not open to this Court to review the decision of the Director. [ 21 ] The petition is dismissed. Costs will be borne by each party. [ 22 ] In the event this decision is ordered, I reserve the right to make editorial changes. The decision will not change.

Also, in the event that this decision is ordered, I order that the petitioner’s identity not be published. He will be referred to by initials or as the petitioner. The Honourable Madam Justice Murray