F.B. v. Director (NWACFS) et al. Date:, 2015 BCPC 101

Citation: F.B. v. Director (NWACFS) et al. Date: 20150424 2015 BCPC 0101 File No: 15504 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: F.B. APPLICANT AND: THE DIRECTOR (NORTHWEST ALBERTA CHILD AND FAMILY SERVICES), T.M., P.M. and GITXSAN CHILD AND FAMILY SERVICES SOCIETY RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Applicant: Mr. T. Hunter Counsel for the Respondent, the Director

(Northwest Alberta Child and Family Services): Ms. C. Le Beau Appearing on their own Behalf: T.M. and P. M. Place of Hearing: Kamloops , B.C. Date of Hearing: March 4, 2015 Date of Judgment: April 24, 2015 INTRODUCTION [ 1 ] F.B., a member of the Gitxsan First Nation, applies under the Family Law Act , SBC 2011, c. 25 (the “ FLA ”) for sole guardianship of her son, K.D.H. K.D.H. was born on [omitted for posting] and is now five years old. [ 2 ] In the alternative, F.B. applies for “parenting arrangements with lenient access”.

As “parenting arrangements” are only available to guardians and the concept of “access” no longer exists under the FLA , I take F.B.’s alternative position to be that she is seeking an order for generous contact with K.D.H. (See ss. 1 and 40(1) of the FLA .) [ 3 ] What is unusual about this application is that K.D.H. is the subject of a Permanent Guardianship Order (“PGO”) made in Grande Prairie, Alberta on October 24, 2013. [ 4 ] The Director (Northwest Alberta Child and Family Services) [the “Director (NWACFS)”] opposes F.B.’s application on jurisdictional grounds.

The only issue before me is whether the FLA provides jurisdiction to the court to terminate the PGO and appoint F.B. as K.D.H.’s guardian or to vary the PGO to allow F.B. to enjoy “parenting arrangements with lenient access”. [ 5 ] Before turning to my analysis, I will first set out the limited background information that the parties provided to me for the purposes of determining the question of jurisdiction. BACKGROUND [ 6 ] F.B. is the biological mother and K.H. is the biological father of K.D.H. K.D.H. was removed by the Director (NWACFS) on March 23, 2012.

The removal occurred in Alberta and K.D.H. was initially placed in a foster home there. At the request of his parents, on May 5, 2012, K.D.H. was placed with his paternal grandparents, T.M. and P.M., in Kamloops by way of a restricted foster placement. K.D.H. has resided with the M.s in Kamloops since that time. [ 7 ] On October 24, 2013 (K.D.H.’s fourth birthday), the Provincial Court of Alberta made the PGO that is at issue in these proceedings. By virtue of s. 34(4) of the Child, Youth and Family Enhancement Act , RSA 2000, c.

C-12 (the “ CYFEA ”), the Director (NWACFS) is K.D.H.’s sole guardian. [ 8 ] The PGO grants F.B. access to K.D.H. at the discretion of the Director (NWAFCS). The PGO indicates that K.H. provided his written consent to the Order and that F.B. “was present with Counsel who conveyed her verbal consent to the Order being sought.” [ 9 ] Since K.D.H. has been with the M.s, they have facilitated access between F.B. and K.D.H. They have also exposed K.D.H. to “aboriginal culture” through the local Friendship Centre. [ 10 ] A case worker in Alberta maintains contact with the M.s.

A “courtesy worker” with the local Secwepemc Child and Family Services agency maintains face to face contact with the M.s and K.D.H. and shares information with the case worker in Alberta. [ 11 ] The M.s took no position on the court’s jurisdiction but I was informed that they have applied for guardianship of K.D.H. in Alberta. I was also informed that their application has been adjourned generally pending the outcome of F.B.’s application. POSITION OF THE PARTIES [ 12 ] The question of this court’s jurisdiction to make the orders sought was contemplated by F.B. when she filed her application.

The grounds identified in the application were pursued by counsel for F.B. in argument. In short, F.B. argues that: 1. Section 74(2) (

a) of the FLA gives this court jurisdiction to make an order respecting guardianship, parenting arrangements or contact with K.D.H. because he is habitually resident in British Columbia; 2. The court should not recognize the PGO as an extraprovincial order under s. 75(1) (

d) of the FLA because it would be contrary to public policy to do so; or 3. If the court recognizes the PGO as an extraprovincial order, the court should supersede it under s. 76(1) (

b) of the FLA because there has been a change in circumstances affecting K.D.H.’s best interests. [ 13 ] In support of her arguments, F.B. submits that her application under the FLA is her only realistic remedy. F.B. submits that she is financially unable to travel to Alberta to apply to set aside the PGO under the CYFEA .

F.B. also submits that she has no standing under s. 54(1) of Child, Family and Community Service Act , RSBC 1996, c. 46 (the “ CFCSA ”) to apply to set aside the PGO because s. 54(1) only allows a party to a proceeding in which a Continuing Custody Order (“CCO”) was made to apply, with the permission of the court, to cancel a CCO. F.B. submits that s. 54(1) does not permit a party to apply to set aside an extraprovincial permanent child protection order.

[ 14 ] F.B. made further submissions on why this court should assume jurisdiction. F.B. asserts (without adducing evidence) that her consent to the PGO was given under duress and that her lawyer did not seek witnesses from British Columbia to contest the application for the PGO. F.B. also submits that the Alberta legislation did not require consultation with F.B.’s First Nation and asserts that this offends K.D.H.’s Aboriginal rights. F.B. asserts that her circumstances have changed such that she is now in a position to be K.D.H.’s guardian.

Finally, F.B. asserts that K.D.H. and all material witnesses currently reside in British Columbia. [ 15 ] F.B. relies primarily on a decision of the Honourable Judge Dickey in B.(S.S.) v. British Columbia (Director of Child, Family and Community Service) , 2014 BCPC 280 . In that case, the child at issue was subject to a Temporary Custody Order under the CFCSA . An aunt in Alberta had an underlying guardianship order in her favour made by the Provincial Court of Alberta and the biological father applied in British Columbia for joint guardianship and primary residence.

The child protection file was not before Judge Dickey and he was advised by counsel for the Director that the Director did not have protection concerns with either home and would be withdrawing. Judge Dickey analysed whether British Columbia or Alberta was the appropriate jurisdiction to determine the issues of guardianship and primary residence under s. 74(2) of the FLA - which is the approach F.B. submits that I should take in the case before me. [ 16 ] Finally, F.B. made passing reference to sections 10 and 12 of the Court Jurisdiction and Proceedings Transfer Act , SBC 2003, c. 28 (the “ CJPTA ”).

In view of the express provisions in the FLA dealing with extraprovincial orders, I did not understand F.B. to be submitting that the CJPTA applies in the circumstances before me. Rather, I understand F.B. to be relying on s. 10 for its reference to the “real and substantial connection” test that establishes the territorial jurisdiction of a court in British Columbia under s. 3 (

e) of the CJPTA . I understand F.B. to be submitting that the “real and substantial connection” between British Columbia and the facts at issue in the proceeding supports her argument that this court has the jurisdiction to determine F.B.’s application. [ 17 ] The Director (NWACFS) submits that the FLA cannot be used to defeat a PGO and that the Alberta courts have jurisdiction over K.D.H. The Director (NWACFS) argues that the term “extraprovincial order” as defined in s. 72 of the FLA refers only to orders made under family law legislation and not under child protection legislation.

The Director (NWACFS) submits that the PGO is, therefore, not an extraprovincial order that may be varied or superseded under either s. 74 or 76 of the FLA . [ 18 ] The Director (NWACFS) highlights s. 51(1) (

b) of the FLA which states that a court may terminate a person’s guardianship of a child “except in the case of a director who is a child’s guardian under the… ( CFCSA )”.

The Director (NWACFS) also notes that s. 100(2) of the CFCSA provides that a child protection order made in another jurisdiction which is not inconsistent with the CFCSA has “the same effect in British Columbia as if it had been made under this Act.” The Director submits that these sections demonstrate that the FLA is not intended to be used to terminate a permanent child protection order of any kind, including an extraprovincial child protection order such as the PGO at issue. [ 19 ] The Director (NWACFS) relies on the decision of the Honourable Mr.

Justice Rogers in The Director of Child, Family and Community Service v. K. , 2003 BCSC 742 . In the K. case, Mr. Justice Rogers held that there was no authority under the Family Relations Act , RSBC 1996, c. 128 (the “ FRA ”) to vacate or vary a CCO.

Though decided under the predecessor family law legislation in British Columbia, the Director (NWACFS) submits that if family law legislation does not provide authority to this court to vary or vacate a permanent child protection order made in British Columbia, even more so it cannot be used to vary or vacate a permanent child protection order from another jurisdiction. [ 20 ] The Director (NWACFS) says that F.B.’s remedy is to apply under s. 35.1 of the CYFEA to terminate the PGO.

ANALYSIS Relevant Legislative Provisions [ 21 ] The Provincial Court of British Columbia is a court that must derive its authority from statute. Unlike Superior Court judges appointed under s. 96 of the Constitution Act, 1867 , Provincial Court judges do not enjoy any inherent jurisdiction. I, therefore, begin my analysis by referring to the relevant provisions of the FLA and CFCSA . [ 22 ] Section 51(1) of the FLA empowers the court to appoint a person to be a child’s guardian or terminate a person’s guardianship of a child. The

section provides as follows: 51

(1) On application, a court may (

a) appoint a person as a child's guardian, or (

b) except in the case of a director who is a child's guardian under the Adoption Act or the Child, Family and Community Service Act , terminate a person's guardianship of a child. [ 23 ] While the power to terminate a person’s guardianship of a child does not apply in the case of a director who is a child’s guardian under the CFCSA , s. 51(1) is silent with respect to the termination of a guardianship order made under the child protection legislation of another jurisdiction. [ 24 ]

Part 4 of the FLA is titled “Care of and Time with Children”. Division 7 of

Part 4 of the FLA is titled “Extraprovincial Matters Respecting Parenting Arrangements”. Sections 72 to 76 of the FLA are found within Division 7 of

Part 4 and deal with recognizing, enforcing and, in some cases, superseding extraprovincial orders regarding guardianship, parenting arrangements or contact with a child. The sections provide, in part, as follows:

Definitions and

interpretation 72

(1) In this Division:

"extraprovincial order" means an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child; "extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make an extraprovincial order.

(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided … (

c) with a person other than a parent on a permanent basis for a significant period of time. Purposes 73 The purposes of this Division are as follows: (

a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child; (

b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction; (

c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child; (

d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders. Determining whether to act under this

Part 74

(1) This

section applies if an order respecting guardianship, parenting arrangements or contact with a child may be made, respecting the same child, in more than one jurisdiction.

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met: (

a) the child is habitually resident in British Columbia when the application is filed; …

(3) A court may decline to make an order under this

Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. Recognition of extraprovincial orders 75

(1) A court must recognize an extraprovincial order if all of the following apply: (

a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia; (

b) each party to a proceeding in which the extraprovincial order was made had (i). reasonable notice that the order would be made, and (ii). a reasonable opportunity to be heard respecting the order; (

c) the extraprovincial tribunal was required by law to consider the best interests of the child; (

d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court, (

a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under

section 45 [ orders respecting parenting arrangements ], 51 [ orders respecting guardianship ] or 59 [ orders respecting contact ], as applicable, and (

b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

… Superseding extraprovincial orders 76

(1) On application, a court may make an order that supersedes an extraprovincial order that has been recognized under

section 75 [ recognition of extraprovincial orders ] if satisfied that … (

b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this

section applies.

(2) For the purposes of subsection (1)(b), an order may be made only if (

a) the child is habitually resident in British Columbia when an application is filed… [ 25 ] The CFCSA also has a provision dealing with extraprovincial orders. Of relevance, s. 100 of the CFCSA provides, in part, as follows: 100

(1) This

section applies to (

a) an order made by a court in another jurisdiction… …

(2) An order… that is certified as being valid and subsisting by a ` court or other appropriate authority in another jurisdiction has, to the extent that the order… is consistent with this Act, the same effect in British Columbia as if it had been made under this Act. Consideration of Precedent [ 26 ] Before embarking on my own

interpretation of these statutory provisions, I must consider whether any judicial precedent exists which is binding on me. [ 27 ] Though not cited by the parties, there is a recent Supreme Court of British Columbia decision which deals squarely with the question of jurisdiction in circumstances which match the circumstances before me. [ 28 ] In S.O. v. Alberta (Child and Family Services) , 2012 BCSC 413 , a child was taken into care by the Alberta Child and Family Services Authority (“ACFSA”) and eventually a PGO was made by the Provincial Court of Alberta.

The AFCSA subsequently placed the child with a paternal uncle and his new wife in British Columbia with a view towards adoption by the couple. The biological mother brought a Petition in the Supreme Court of British Columbia seeking custody and guardianship of the child or, in the alternative, access to the child. [ 29 ] In determining that the court had jurisdiction to supersede the PGO, the court relied on both its inherent parens patriae jurisdiction as well as provisions of the FRA dealing with superseding extraprovincial orders.

The sections in the FRA were very similar to ss. 72 to 76 of the FLA set out above. At paragraph 98 the court reasoned: There is jurisprudence to the effect that child protection legislation is a closed code. That jurisprudence, however, does not preclude this Court from exercising its parens patriae jurisdiction, nor does it appear to deal with applications to vary or supersede extraprovincial orders. That jurisdiction is expressly addressed in the Family Relations Act and I can see no reason not to apply the provisions of

Part 3 of the Act , dealing with extraprovincial custody and access orders, in the case at bar. [ 30 ] The court also referred to its inherent jurisdiction at paragraph 103 where the court held: In considering an application to supersede an extraprovincial custody order, regard should be had to the principles reflected in the statutory provisions dealing with applications to terminate orders made pursuant to the Child, Family and Community Service Act . Guidance may also be taken from the legislation in the forum in which the original order was made.

Doing so is uncontroversial in this case, as the legislation in British Columbia and Alberta is similar, and both statutes codify the general principles which guide the court in the exercise of its inherent jurisdiction to protect children and act in their best interests. [ 31 ] Central to the court’s conclusion that the court could rely on the provisions of the FRA to supersede an extraprovincial PGO was the court’s view that the FRA provisions were the only applicable statutory provisions.

At paragraph 101, the court reasoned: There is no provision in the British Columbia child protection legislation dealing with the recognition, enforcement or variation of extraprovincial child protection orders. The only applicable statutory provisions appear to be those set out in relevant sections of the Family Relations Act .

[32] It appears that counsel did not bring s. 100 of the CFCSA to the court’s attention. As set out above, s 100 of the CFCSAspecifically gives effect to extraprovincial child protection orders. [33] There is a dearth of case law regarding s. 100 of the CFCSA and none that I could find of relevance to the issues before me. Iam in no position to say how the court in S.O. would have analysed the question of its jurisdiction to set aside a PGO under the FRA hads. 100 of the CFCSA been brought to the court’s attention.

All I need say is that once the court determined that it had the inherentparens patriae jurisdiction to act, the finding of jurisdiction under the FRA is obiter that is not binding on me. I must, therefore,undertake my own analysis of whether the provisions in the FLA dealing with “extraprovincial orders” may be used by F.B. to vary orvacate the PGO and obtain the orders she seeks. Statutory

Interpretation [34] The key question before me is whether the PGO can be considered an “extraprovincial order” as defined in the FLA. If not,then all of F.B.’s arguments fail.

If the PGO is not an “extraprovincial order” under the FLA, then: 1. s. 76 of the FLA provides no jurisdiction to supersede the PGO; 2. even though K.D.H. is now habitually resident in British Columbia, without first superseding the PGO, this court cannot embark on ahearing into whether to make a conflicting guardianship or contact order in favour of F.B. in British Columbia under s. 74 of the FLA;and 3. public policy arguments under s. 75 of the FLA would be superfluous because the PGO would not be recognized as an“extraprovincial order” under the FLA in any event. [35] As the result in this case turns on my

interpretation of the term “extraprovincial order” as defined in the FLA, I must firstconsider the proper approach to statutory

interpretation. [36] In Imperial Oil v. Jacques, 2014 SCC 66 at paragraph 47, the Supreme Court of Canada reaffirmed the familiar modernapproach to statutory

interpretation as follows: The modern approach to statutory

interpretation requires that the words of

an Act be interpreted “in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A.Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, reproduced in R. Sullivan, Sullivan on the Construction of Statutes (5th ed.2008), at p. 1). [37] After taking this approach, I have concluded that “extraprovincial orders” as defined in the FLA refer to family law orders andnot to child protection orders made outside British Columbia.

The scheme and object of the FLA, the actual words used within the FLAand the existence of a provision within the CFCSA dealing with extraprovincial orders lead me to this conclusion. Scheme and Object of the FLA [38] In this case, it is particularly important to understand the scheme and object of the FLA in the context of child protectionconcerns. [39] The FLA is a relatively new piece of legislation, having come into force on March 18, 2013.

The FLA governs a wide range offamily law proceedings in British Columbia, including care of and time with children, child support, spousal support, property divisionand protection from family violence. The FLA was not drafted in a vacuum. It was drafted in the context of there being a piece oflegislation in place in British Columbia, namely the CFCSA, with a much narrower focus on child protection. [40] The interplay between the FLA (or its predecessor) and the CFCSA (or its predecessor) has been the subject of many courtdecisions over a long period of time.

The CFCSA has been described as a “closed code” and the law is well settled that in cases wherethe family law legislation is in conflict with the child protection legislation, the child protection legislation is paramount. (Though thechild protection legislation has since been substantially amended, the leading statement regarding the child protection legislation being a“closed code” may continue to be found at paragraph 16 of the Reasons for Judgment of Craig, J.A. in British Columbia (Superintendentof Family & Child Service) v. D.S. (1985), (BC CA), 63 BCLR 104 (CA).

The paramountcy of child protectionlegislation is dealt with in W.N. v. C.G., 2012 BCCA 149 at paragraphs 67 to 85.) [41] If this case involved a CCO made in British Columbia, it is clear that F.B. could not utilize the FLA to terminate the order. Section 51(1)(

b) of the FLA expresses this point clearly. F.B. would have to look instead to s. 54(1) of the CFCSA which provides that“(w)ith permission of the court,… a party to a proceeding in which a continuing custody order was made may apply to the court for thecancellation of the order if the circumstances that caused the court to make the order have changed significantly.” [42] In my view, it is equally clear that F.B. could not utilize the FLA to vary a CCO to obtain “contact” with K.D.H.

She wouldhave to look to s. 56 of the CFCSA which sets out a comprehensive scheme for a parent or other person to gain access to a child who isthe subject of a CCO. [43] In my view, the only fair inference to draw from this background is that the FLA was neither designed nor considered to beappropriate to be used to terminate a Director’s guardianship of a child or to obtain access to a child subject to a CCO. Even though s.51(1)(

b) of the FLA is silent regarding extraprovincial child protection orders, I am unable to conclude that the drafters of the FLAwould consider the FLA to be inappropriate to vary or vacate a CCO but nevertheless appropriate to vary or vacate a permanent child

protection order from another jurisdiction. Wording of the FLA [ 44 ] I turn next to consider the actual words used in the FLA . [ 45 ] The term “extraprovincial order” as defined in s. 72(1) of the FLA refers specifically to orders “which are similar in nature to an order respecting guardianship, parenting arrangements or contact with a child”. This definition falls within

Part 4 of the FLA which deals with “Care of and Time with Children.” The terms “guardianship”, “parenting arrangements” and “contact with a child” each has a specific meaning in the FLA and each has its own Division within

Part 4 of the FLA . [ 46 ] While child protection legislation and orders may use similar terms or tread on similar territory to family law legislation and orders, child protection legislation and orders have a distinct purpose and involve different considerations. In my respectful view, child protection orders are not “similar in nature” to the types of family law orders intended to be captured in the definition of “extraprovincial order” in the FLA . [ 47 ] Any doubts about the intended scope of the terms “guardianship”, “parenting arrangements” and “contact with a child” as used in the ss. 72 to 76 of the FLA can be removed by reference to s. 75 . Section 75(2) (

a) specifically provides that “(o)n recognition by a court… an extraprovincial order has the same effect, and may be enforced, as if it were an order made under

section 45 [ orders respecting parenting arrangements ], 51 [ orders respecting guardianship ] or 59 [ orders respecting contact ]”. Sections 45 , 51 and 59 are all found within

Part 4 of the FLA . [ 48 ] The drafters of the FLA , in my view, clearly intended ss. 72 to 76 of the FLA to deal only with extraprovincial orders made under family law and not child protection legislation.

Section 100 of the CFCSA [ 49 ] Finally, I turn to consider s. 100 of the CFCSA . [ 50 ]

Section 100 of the CFCSA mandates that child protection orders made by courts in other jurisdictions will be given effect in British Columbia. Though there is no case law that delves into the meaning of s. 100 , it is clear that courts in British Columbia are intended to recognize and enforce child protection orders made in other provinces. [ 51 ] The fact that the “closed code” of the CFCSA has its own provision dealing with extraprovincial orders supports the conclusion that the FLA provisions dealing with extraprovincial orders were never intended to deal with extraprovincial child protection orders.

CONCLUSION AND ORDER [ 52 ] The heart of F.B.’s application is that her FLA application is the only practical remedy available to her and, given that K.D.H. and all of the key witnesses now reside in Kamloops, that Kamloops is the most convenient location to deal with the issues on the merits. [ 53 ] Based on what I have heard, I agree that Kamloops is an appropriate location to deal with the issues on the merits. I also consider the Provincial Court of British Columbia to be well suited to the task. Nevertheless, the Provincial Court of British Columbia can only act when given authority to do so by statute.

In this case, the FLA does not provide that jurisdiction. [ 54 ] I do not know why the CFCSA does not contain a more comprehensive scheme dealing with extraprovincial orders, which might include the power to supersede extraprovincial orders in appropriate cases. Unless and until the CFCSA is amended to provide such a power, it is my view that parties in the position of F.B. will have to look somewhere other than the Provincial Court of British Columbia for relief. [ 55 ] In F.B.’s case, there appear to be two alternative paths for her to follow.

She can either apply to set aside the PGO in Alberta under s. 35.1 of the CYFEA or she can call on the Supreme Court of British Columbia to exercise its inherent parens patriae jurisdiction in her favour. If she pursues the former path, no issue of jurisdiction will arise. If she pursues the latter path, she will have to convince the Supreme Court that it would be appropriate to exercise its inherent jurisdiction. [ 56 ] In the result, I dismiss F.B.’s application under the FLA for lack of jurisdiction. ____________________________ L.S. Marchand Provincial Court Judge