C.A.B. v. M.S.B. Date:, 2015 BCPC 12

Citation: C.A.B. v. M.S.B. Date: 20150121 2015 BCPC 0012 File No: 13258 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.A.B. APPLICANT AND: M.S.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Appearing in person: C.A.B.

Counsel for the Respondent: Mr. Carman Kane Place of Hearing: Kamloops , B.C. Date of Hearing: November 21, 2014 Date of Judgment: January 21, 2015 INTRODUCTION [ 1 ] C.A.B. and M.S.B. were married on April 29, 2000, separated on December 12, 2002 and divorced on April 5, 2004. They have one child, L.B., who was born on [omitted for posting] and is now [omitted for posting] years old. Supreme Court orders have been made granting C.A.B. sole guardianship and sole custody of L.B. and access to M.S.B. [ 2 ] The Ministry of Children and Family Development (the “Ministry”) has been involved with the B.

On February 26, 2014, the Ministry was granted interim custody of L.B. pending the completion of a protection hearing. M.S.B. was granted access to L.B. to be supervised at the discretion of the Director which was to include but not be limited to specified days according to M.S.B.’s work schedule.

The interim order also directed M.S.B. to attend counselling and contemplated M.S.B.’s time with L.B. being either increased or decreased and supervised or not supervised according to the counsellor’s recommendations. [ 3 ] I do not have the details but it is common ground that the Ministry has placed L.B. with C.A.B. [ 4 ] On September 18, 2014, the Honourable Judge Frame granted C.A.B. an ex parte protection order under s. 183(3) (

a) of the Family Law Act , SBC 2011, c. 25 (the “ FLA ”) which prohibited M.S.B. from having direct or indirect contact or communication with and from being within one kilometre of L.B.’s school or residence. Judge Frame ordered that the protection order be reviewed on October 15, 2014. [ 5 ] The protection hearing came before me on October 14, 2014. By consent, the B.’s FLA file was brought into the courtroom and a Family Case Conference (“FCC”) was held to deal with issues arising out of the proceedings under both the FLA and the Child, Family and Community Service Act , RSBC 1996, c. 46 (the “ CFCSA ”).

As a result of the FCC, the term of the protection order prohibiting direct or indirect contact or communication between M.S.B. and L.B. was set aside, though the geographical restriction remained. Some changes were also made, by consent, to the interim order under the CFCSA and the protection hearing was adjourned to the Judicial Case Manager to reschedule. [ 6 ] M.S.B. has applied to set aside the balance of the FLA protection order made by Judge Frame.

There was insufficient court time available on November 21, 2014 for me to hear the merits of M.S.B.’s application but the parties asked me to rule on a “legal threshold” issue raised by M.S.B. [ 7 ] M.S.B. argues that Judge Frame “should not have made” the protection order because: 1. there is a conflict between the court’s power to grant a protection order under the FLA and the court’s power to grant a restraining order under the CFCSA and no protection order should be granted under the FLA when a CFCSA proceeding is already underway; 2. it is contrary to the public interest to allow a parent to seek a protection order under the FLA when the Ministry is involved as this creates a multiplicity of proceedings in a system that is already overburdened; and 3. granting a protection order under the FLA circumvents the rights of children in care to participate in the hearing of an application for a restraining order under the CFCSA .

ANALYSIS [ 8 ] Though M.S.B. did not use the word “jurisdiction” during submissions, that is the only basis on which he can raise a purely legal question as to whether Judge Frame ought to have made her order. If she had the jurisdiction to do so, then her order must stand pending a hearing on the merits. [ 9 ] I will deal with each of M.S.B.’s arguments in turn. Legislative Conflict [ 10 ] Family law proceedings in British Columbia are governed by the FLA while child protection proceedings are governed by the CFCSA .

It is quite common for families experiencing conflict or other difficulties to be involved in concurrent proceedings under both pieces of legislation. In cases where the family law legislation is in conflict with the child protection legislation, the law is well settled that the child protection legislation is paramount. (See W.N. v. C.G. , 2012 BCCA 149 at paragraphs 67 to 85 .) [ 11 ] The issue for me to determine is whether there is a conflict between the provisions in the FLA and CFCSA dealing with the court’s power to make protective orders. [ 12 ] Broadly speaking,

Part 9 of the FLA empowers the court to make “protection orders” to protect “at-risk” family members from “family violence” whereas s. 98 of the CFCSA empowers the court to make “restraining orders” to protect certain children or youth who are engaged with the Ministry as well as certain adults employed by, involved with or providing services through the Ministry. [ 13 ] I have reviewed both

Part 9 of the FLA and s. 98 of the CFCSA carefully. There are a number of similarities as well as a number of differences between the two legislative schemes.

[ 14 ] Importantly, both schemes are directed to protecting vulnerable people and both schemes employ similar tools to achieve their laudable goals. For example, both schemes allow the court to prohibit a person from contacting the person requiring protection or entering a place where the person requiring protection is likely to be. Both schemes empower the court to include terms necessary to implement any protective orders made.

Orders under both schemes also have significant “bite” in the sense that breaches of orders under either piece of legislation are enforceable under s. 127 of the Criminal Code of Canada , RSC 1985, c. C-46. [ 15 ] There are also some procedural similarities. Applications under both schemes may be made by any person and generally require that notice be given to interested parties. Both schemes, however, allow the court to make orders without notice to others in appropriate circumstances. The power to make an ex parte protection order under the FLA is found within

Part 9 of the FLA at s. 186 and to make an ex parte restraining order under the CFCSA is found at s. 69(2) of the CFCSA . Both schemes allow the court, on application, to shorten, extend, change or terminate a protective order. [ 16 ] Amongst the important differences between the protective schemes is the breadth of circumstances covered by the two schemes. [ 17 ] The FLA aims to protect any “at-risk family member” which is defined at s. 182 to mean “a person whose safety or security is or is likely at risk from family violence carried out by a family member”.

Section 1 of the FLA defines “family violence” to include physical, sexual, psychological and emotional abuse, attempts to physically or sexually abuse a family member and, in the case of a child, “direct or indirect exposure to family violence”. The terms “physical”, “psychological” and “emotional” abuse are given broad meaning within the definition of “family violence” in s. 1 . Clearly, the FLA is intended to provide protection to a very broad range of vulnerable people. [ 18 ] The CFCSA , on the other hand, has narrower application.

It is focused on protecting children in care, children in the custody of a person under a temporary custody order (“TCO”) or youth who have entered an assistance agreement with the Director from being involved in prostitution or from otherwise being “exploited, abused or intimidated”.

The CFCSA also aims to protect caregivers, persons who have custody of children under TCOs, the Director, delegates of the Director or other persons providing specified support services to children or youth from being “molested, harassed or annoyed”. [ 19 ] Another important difference is that s. 184 of the FLA provides the court with guidance on when to make a protective order by setting out specific risk factors that the court “must” consider and other considerations which do not preclude the court from making a protective order.

The CFCSA provides no similarly explicit guidance. [ 20 ] There are differences in the enforcement of orders under the two schemes. For example, FLA protection orders “may” direct a police officer to take specified steps to give effect to a protection order. Section 188(2) also provides that a police officer having reasonable and probable grounds to believe that a person has contravened an FLA protection order “may” take action to enforce the order. Section 98(7) of the CFCSA , on the other hand, provides that, at the request of the Director, a police officer “must assist” in enforcing a CFCSA restraining order.

Another example is that the CFCSA , but not the FLA , extends a power to the court to make a person enter a recognizance to govern the person’s conduct. [ 21 ] In terms of duration, FLA protection orders can be in force for any length of time (though they expire in one year if not otherwise specified) while CFCSA restraining orders can only last up to six months. [ 22 ] Procedurally, Rule 2(3) of the Provincial Court (Family) Rules , BC Reg. 417/98, ordinarily requires service of an application for an FLA protection order on the respondent.

On the other hand, s. 98(6) of the CFCSA ordinarily requires service of an application for a CFCS A restraining order on the person against whom the order is sought, an affected child who is over 12 years old and the Director. (Of course, as mentioned above, the court may hear applications for protective orders under either the FLA or CFCSA without notice to others.) [ 23 ] There are other differences and similarities between the two schemes. I do not consider it necessary to articulate all of them with greater precision.

Suffice to say that after carefully reviewing all of the provisions, I can see no direct conflict between the protective schemes under the FLA and CFCSA . There is no provision in one scheme which cannot be followed because of a provision in the other. Neither the court nor any other person is compelled by one scheme to do something that is at irreconcilable odds with something they are compelled to do by the other. [ 24 ] It is true that the CFCSA focuses on protecting children whereas the FLA has broader application. This, however, does not create a conflict.

There is nothing in either the CFCSA or the FLA which precludes the court from exercising its jurisdiction under the FLA to protect children who are the subject of a CFCSA proceeding. [ 25 ] In argument, M.S.B. did not point to any specific legislative conflict. My conclusion is that he was unable to do so because there is none. Policy Argument [ 26 ] M.S.B.’s policy argument has some merit. [ 27 ] The Director has interim custody of L.B.

Section 1 of the CFCSA defines custody to include “guardianship”. The Director is, therefore, L.B.’s guardian. M.S.B. submits that it is the Director who should be making decisions about what actions to take to ensure that L.B. is safe and that C.A.B.’s application for an FLA protection order essentially takes away the Director’s authority as L.B.’s guardian.

M.S.B. notes that a CFCSA restraining order can prohibit the same conduct as an FLA protection order in circumstances such as L.B.’s and submits that it is contrary to the public interest to allow a parent to engage the FLA protection scheme when the CFCSA is already engaged because doing so creates a multiplicity of proceedings in an already overburdened system. [ 28 ] Though not articulated by C.A.B., there is at least one countervailing policy argument which favours allowing a parent to apply for an FLA protection order even when CFCSA proceedings have been commenced and the Director is the child’s guardian.

[ 29 ] One of the “Guiding Principles” of the CFCSA is that “a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents”. (See s. 2(

b) of the CFCSA .) [ 30 ] When a child is taken into care by the Ministry, the hope is that the Ministry’s involvement will be remedial and temporary. When a child in care no longer requires protection, the Ministry steps out. One measure that a parent whose child is in care can take to satisfy the Ministry and/or court that her or his child no longer needs the protection of the Ministry is to obtain an FLA protection order to keep the child safe.

An FLA protection order can provide protection that lasts longer than a CFCSA restraining order and can remain in place after the Ministry is no longer involved. [ 31 ] As between precluding a multiplicity of proceedings and allowing a parent to have her or his child safely returned by the Ministry and remain safe after the Ministry is no longer involved, in my view, the scale must tip in favour of allowing a child to be safely returned to and remain in the care of a parent.

Simply stated, sometimes it will be better for a child to have an FLA protection order in place rather than a CFCSA restraining order. [ 32 ] There may be other policy arguments in favour of granting FLA protection orders even when CFCSA proceedings are underway and the Director is the child’s guardian. I find it unnecessary to identify and consider any such further arguments in the circumstances of this case.

Impairment of L.B.’s Rights [ 33 ] M.S.B.’s final argument is that C.A.B.’s application for an FLA protection order circumvented L.B.’s rights as a child in care to be consulted and to express his views about the need for a protective order regarding M.S.B. [ 34 ]

Section 2 of the CFCSA sets out the “Guiding Principles” for the

interpretation and administration of the Act . The importance of hearing from a child in care is underscored by s. 2(

d) of the CFCSA which provides that “the child's views should be taken into account when decisions relating to a child are made.” [ 35 ] The CFCSA also grants certain “rights” to children in care. Section 70(1)(

c) provides that children in care have the “right… to be consulted and to express their views, according to their abilities, about significant decisions affecting them.” Perhaps to give effect to this “right” in the context of children of a certain age who may be the subject of an application for a CFCSA restraining order, s. 98(6) (

b) provides that “(a)t least 2 days before the date set for hearing an application for a restraining order, notice of the time, date and place of the hearing must be served on... the child, if the child is 12 years of age or over.” [ 36 ] M.S.B.’s argument about L.B.’s rights also has some merit. [ 37 ] Courts make the best decisions when they hear from all interested parties. In the case of a child who is 12 years of age or over, the CFCSA generally mandates that notice be given to the child before the court will consider an application for a restraining order. I note that s. 98(6) (

c) of the CFCSA also generally mandates that notice of an application for a restraining order be given to the Director. [ 38 ] In an application for a CFCSA restraining order, the child who is the subject of the proceedings and/or the Director will almost always have information that will be relevant, material and helpful. [ 39 ] Despite the obvious importance of the court receiving the most comprehensive evidence available prior to making a CFCSA restraining order, the Act permits the court to hear an application for a restraining order without notice to others.

The court has a wide discretion to determine when it is appropriate to do so. [ 40 ] The reality is that no right is absolute and the CFCSA does not guarantee that a child in care (or the Director for that matter) will be consulted or heard before a restraining order is made under the Act . Conversely, when a person applies for an ex parte restraining order, the court has a wide discretion to refuse to entertain the application or grant an order without hearing from a child in care or the Director. [ 41 ] Under the FLA , the circumstances are similar.

The court has a wide discretion to grant or refuse to make an ex parte protection order. In some cases the court may want to hear from the child involved before making an order. In cases where the court is aware of Ministry involvement, the court may also want to hear from the Director. [ 42 ] Judges are generally leery of granting ex parte orders of any kind. Fortunately, there are many ways that a judge can manage the risks associated with granting an order without notice to and before hearing from all parties with relevant and material information.

Judge Frame utilized one such tool in this case when she required that her FLA protection order be reviewed by the court four weeks after the order was made. Another safety mechanism is that the affected party is always at liberty to apply to set aside an ex parte order. [ 43 ] Whether C.A.B. applied for a protective order under the FLA or CFCSA or the Director took the initiative and applied for a restraining order under the CFCSA , L.B. would have been in the same position.

Judge Frame would have been free to make a protective order without notice to or hearing from L.B. - if she thought that was the appropriate thing to do. [ 44 ] The paramount objective of both

Part 9 of the FLA and s. 98 of the CFCSA is the protection of vulnerable people. In appropriate circumstances, the protective objective outweighs the objective of making decisions only after hearing the best evidence from all parties with relevant and material information, including a child in care such as L.B. So, while I do not minimize the importance of giving notice to and/or hearing from children in care, in cases such as the present, in my view the court must be free to make a protection order under the FLA when the circumstances call for that step to be taken.

CONCLUSION [ 45 ] M.S.B. has raised a number of points that judges hearing applications for FLA protection orders should keep in mind when aware of concurrent proceedings under the CFCSA . These are, however, matters of judgment not jurisdiction.

[ 46 ] In the result, I dismiss M.S.B.’s jurisdictional arguments and direct M.S.B.’s application to set aside Judge Frame’s ex parte protection order to the Judicial Case Manager to

schedule for a one half day hearing on the merits. Subject to the parties’ wishes, this may be heard at the same time as the protection hearing. [ 47 ] Counsel for M.S.B. will prepare the order and I dispense with the need for C.A.B. to sign the order. __________________________ L.S. Marchand Provincial Court Judge