Director v. S. Date:, 2012 BCPC 168

Citation: Director v. S. Date: 20120529 2012 BCPC 0168 File No: 14036 Registry: Kamloops 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 CHILD: B.A.S. , born (DOB) 2011 BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L.A.S. PARENT AND: J.E.B. PARENT AND: C.D. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Counsel for the Director: Mr. T. Weiss

Counsel for the Parent, Ms. L.S.: Mr. M. Armstrong Counsel for the Parent, Mr. J.B.: Mr. S. Soll Counsel for the Parent, Mr. C.D.: Mr. C. Kane Place of Hearing: Kamloops , B.C. Date of Hearing: May 2, 2012 Date of Judgment: May 29, 2012 [ 1 ] This is an application by Mr. D. He seeks directions as to whether he is a “parent apparently entitled to custody” to whom the director may return a child after a presentation hearing, pursuant to s. 48 (1) of the Child, Family and Community Service Act (“ CFCSA ”).

The statutory provisions referred to appear at the end of these Reasons. [ 2 ] If the applicant is correct, and provided that there were no other protection concerns, it would be open for the Director to return the child to Mr. D. and withdraw from the proceedings. Ms. S. and Mr. B. oppose that

interpretation. The Director takes no position, though Mr. Weiss, counsel for the Director, assisted in the discussion of the law concerned. The Background: [ 3 ] The facts are not in dispute. The child, B.A.S., was born (DOB) 2011 to Ms. S., a Kamloops resident. B.A.S. was removed at birth. On November 2, 2011 a consent order found the child to be in need of protection and granted three month’s temporary custody of the child to the Director. There is a pending application to extend that order. [ 4 ] Ms. S.’s current partner, Mr. B., was recorded as the father on B.A.S.’s birth registration.

However, DNA analysis has since established that Ms. S.’s former partner, the applicant Mr. D., is the biological father. [ 5 ] Mr. D. has commenced an action under the Family Relations Act (“ FRA ”) and has applied for custody of B.A.S. That application is contested and is expected to be heard in January, 2013. [ 6 ] Mr. D. and Ms. S. have four other children. Mr. D. has custody of these children. They reside in Chilliwack. The Ministry has been involved recently in the supervision of these children. [ 7 ] There are no other orders or agreements with respect to the custody or guardianship of B.A.S.

The Position of Mr. D.: [ 8 ] Mr. Kane, counsel for Mr. D., submits that under the provisions of the CFCSA and the FRA , Mr. D. is in a position no better or worse than that of Ms. S. regarding his entitlement to exercise custody of B.A.S. He argues that both are parents “apparently entitled to custody” to whom B.A.S. could be returned as contemplated by s. 48 (1) of the CFCSA . [ 9 ] The phrase “the parent apparently entitled to custody” is a phrase not expressly defined in the CFCSA , although it appears frequently in

Part 3 of the Act , amongst the provisions for child protection. It appears that the phrase has not received much judicial consideration. [ 10 ] Mr. Kane relied upon the decision in British Columbia (Director of Family and Child Services) v. G.W. 2002 BCPC 231 . In that case there was an application by the Director for a continuing custody order. The child was born drug addicted and was removed at birth. The name of the father had not been disclosed by the mother and his identity was unknown until he appeared at the hospital.

The parents were not cohabiting. [ 11 ] At paragraph 8 of her decision, the learned trial judge briefly referred to both the father and mother as parents apparently entitled to custody: At the moment (the baby) was born, there were two people who were apparently entitled to custody. It was equally obvious that there was considerable conflict of interests between them. The Ministry knew about Ms. A.M. and her history and felt justified in apprehending (the baby) to keep her out of the custody of her mother. They knew nothing about Mr.

G.W. and could not adequately explain their decision to not consider him as a custodial parent. [ 12 ] Mr. Kane also referred to s. 34(1) of the FRA which sets out who may exercise custody. It was reasonably submitted that this provision casts light on who may be included in the expression “parent apparently entitled to custody” as used in the CFCSA . Section 34(1)(

b) of the FRA provides that if the father and mother live separate and apart, the parent with whom the child usually resides may exercise custody. [ 13 ] Mr. Kane’s submission is that a child removed at birth cannot be said to be “usually resident” with either parent. Mr. Kane says that neither parent is in a better position than the other and that each is a “parent apparently entitled to custody” for the purposes of the CFCSA . Mr.

Kane argues that before such time as the infant has established a usual residence, a de facto residence, either parent may exercise custody, subject to any court order or agreement to the contrary. It follows, therefore that the Ministry may return the child to either parent.

The Positions of Ms. S. and Mr. B.: [ 14 ] Mr. Soll submitted for Mr. B. that if Mr. D.’ position is correct, the Director could return B.A.S. to Mr. D. and withdraw the CFCSA action. The child could be moved by the Ministry from one parent to the other without any determination by a court which custody arrangements, as between parents, were in the best interests of the child. [ 15 ] Mr. Soll agreed that there is guidance to be found in the FRA in determining who may be “apparently entitled to custody” under the CFCSA . Mr. Soll also agreed that “the parent with whom the child usually resides” in FRA s. 34(1)(

b) did not embrace Ms. S.’s circumstances, given B.A.S.’s removal at birth. [ 16 ] However, Mr. Soll submitted, the default guardianship provisions set out in s. 27 of the FRA secured Ms. S.’s position as sole guardian and thus “the parent apparently entitled to custody”. Ms. S.’s situation met the requirements of s. 27(5) of the FRA : the parents were never married, they were living separate and apart and they did not share joint guardianship either under s. 27 or by court order. It followed that absent an order to the contrary, Ms. S. was the sole guardian. [ 17 ]

Section 25 of the FRA provides that: “A guardian is both guardian of the person of the child and guardian of the estate of the child.” The authority of a guardian of the person was said to be the same authority as a parent having care and control of the child. [ 18 ] Mr. Soll submits that the powers of sole guardianship granted by s. 27(5) to Ms. S. are modified at this point only to the extent required by orders made under the CFCSA . Ms. S. is and remains both the sole guardian and “the parent apparently entitled to custody of the child” referred to in the CFCSA .

If this is correct, he says, the Director has no authority to return the child to Mr. D. as the parent apparently entitled to custody, absent a custody order in favour of Mr. D. [ 19 ] Mr. Armstrong, for Ms. S., adopted the argument of Mr. Soll with respect to the default guardianship provisions reflected in s. 27(5) of the FRA . [ 20 ] Mr. Armstrong however did not agree that the provisions of FRA s. 34 (re: “the parent with whom the child usually resides”) did not assist his client. Mr.

Armstrong put forward the argument that while B.A.S. was en ventre sa m è re , an unborn child, she was in the care of her mother and accordingly was “usually resident” with Ms. S. within the meaning of s. 34 of the FRA . [ 21 ] That a child in utero could be considered resident with the mother was supported, Mr. Armstrong said, by the definition of “child” found in ss. 23 and 42 of the FRA . They establish for the purposes of Parts 2 (Child Custody, Access and Guardianship) and

Part 3 (Extraprovincial Custody and Access Orders) that “child” includes a child not yet born on the death of the child's father or mother but subsequently born alive. Ruling: [ 22 ] “Apparently”, as it appears in the phrase “apparently entitled to custody,” is a common English word. In this context I take it to mean seemingly real or true, prima facie , or to be so at first sight. See the Oxford Concise English Dictionary. It is important to point out that the return of a child to the person apparently entitled to custody, should that happen, is not intended to be a permanent determination of custody rights.

Those rights will, if necessary, be determined by other means, in this case the Family Relations Act . See W.N. v. C.G. 2012 BCCA 149 , at paragraph 77 . [ 23 ] I am satisfied that the argument put forward by Mr. Soll with respect to sole guardianship is the correct position at law. Ms. S. is, by virtue of s. 27(5) of the FRA , the sole guardian of B.A.S. The rights and obligations which adhere to sole guardianship are those of a parent having care and control of the child.

See the Family Law Sourcebook for British Columbia , 3 rd edition, 2011 Update, published by The Continuing Legal Education Society of British Columbia, paragraph 2.69. [ 24 ] This

interpretation is confirmed by the definition of “guardianship” found in s. 1 of the CFCSA : "‘guardianship’ includes all the rights, duties and responsibilities of a parent.” Sole guardianship must vest those attributes in a single person and will include custody of the child unless otherwise ordered or agreed. [ 25 ] Given Ms. S.’s status as sole guardian of B.A.S., and in the absence of any court order or agreement to the contrary, Ms. S. is the parent apparently entitled to custody of B.A.S. referred to in s. 48(1) of the CFCSA . Mr.

D. is not in the same position and is not at this time a parent apparently entitled to custody. [ 26 ] Given this ruling it is not necessary to come to any decision on Mr. Armstrong’s submission that carrying the child to term alone qualified B.A.S. as being usually resident with her mother as that term is used in s. 34 of the FRA . ____________________________ S.R. Harrison Provincial Court Judge Excerpts from the Family Relations Act and the Child, Family and Community Service Act: Family Relations Act 1 "parent" means (

a) the mother of a child,

(

b) the father of a child, (

c) a person to whom custody of a child has been granted by a court of competent jurisdiction or by an agreement, or (

d) a person with whom a child resides and who stands in place of the child's mother or father but does not include a caregiver or director; "guardian" means the person who has all the powers and duties under

section 25 respecting a child; 21 In this Part: "child" includes a child not yet born on the death of the child's father or mother but subsequently born alive; 25

(1) A guardian is both guardian of the person of the child and guardian of the estate of the child.

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second,

chapter 24, and 49 and 50 Victoria,

chapter 27,

section 4.

(3) Subject to this Act, a guardian of the person of a child has all powers over the person of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second,

chapter 24, and 49 and 50 Victoria,

chapter 27,

section 4. 27

(1) Subject to

section 28, whether or not married to each other and for so long as they live together, the mother and father of a child are joint guardians unless a tribunal of competent jurisdiction otherwise orders.

(2) Subject to subsection (4),

section 28 and

section 30, if the father and mother of a child are or have been married to each other and are living separate and apart, (

a) they are joint guardians of the estate of the child, and (

b) the one of them who usually has care and control of the child is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders.

(3) If the father and mother of a child (

a) have not married each other, (

b) are living separate and apart, and (

c) have been joint guardians under subsection (1) or under the order of a tribunal of competent jurisdiction, subsection (2) applies to the father, mother and child as though the father and mother were married.

(4) If a tribunal of competent jurisdiction (

a) makes absolute a decree of divorce, (

b) renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved, (

c) makes an order for judicial separation, or (

d) declares a marriage to be null and void, a person granted custody by order in the proceeding is sole guardian unless a tribunal of competent jurisdiction transfers custody or guardianship to another person.

(5) Subject to

section 28, if the father and mother of a child (

a) have not been married to each other during the life of the child or 10 months before the child's birth, (

b) are living separate and apart, and (

c) do not share joint guardianship under this

section or under an order of a tribunal of competent jurisdiction, the mother is sole guardian unless a tribunal of competent jurisdiction otherwise orders. 28

(1) The father and mother described in section 27 (2) or (5) may, by a written agreement between them, provide that, during the term of the agreement, (

a) they are joint guardians of their child, or

(

b) one of them is sole guardian of their child.

(2) The making of an agreement under subsection (1) does not bar the jurisdiction of a court to make an order respecting guardianship. 34

(1) Subject to subsection (2), the persons who may exercise custody over a child are as follows: (

a) if the father and mother live together, the father and mother jointly; (

b) if the father and mother live separate and apart, the parent with whom the child usually resides; (

c) if custody rights exist under a court order, the person who has those rights; (

d) if custody rights exist under a written agreement, the person to whom those rights are given.

(2) If persons have conflicting claims to custody under subsection (1), the following persons may exercise custody to the exclusion of the other persons unless a court otherwise orders: (

a) the person who has custody rights under a court order; (

b) if paragraph (

a) does not apply, the person granted custody by an agreement; (

c) if paragraphs (

a) and (

b) do not apply, the person claiming custody with whom the child usually resides; (

d) if paragraph (

c) applies and 2 persons are equally entitled under it, the person who usually has day to day personal care of the child. Child, Family and Community Service Act 1 "custody" includes care and guardianship of a child; "guardianship" includes all the rights, duties and responsibilities of a parent; 48

(1) At any time after the presentation hearing, the director may return a child to the parent apparently entitled to custody and withdraw from a proceeding if the director (

a) makes an agreement with the parent that the director considers adequate to protect the child, or (

b) considers that circumstances have changed so that the child no longer needs protection.

(2) A director who withdraws from a proceeding must present to the court a written report on the director's reasons for returning the child.

(3) When a director withdraws from a proceeding, the proceeding ends without an order being made.