DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 132

Citation: British Columbia (Child, Family and Community Service) v. M.C.W. 2020 BCPC 132 Date: 20200714 File No: 17280 Registry: Smithers 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: B.C.W., G.P.G.W., G.A.R.W., J.A.F.W., C.R.F.W. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.C.W. PARENT AND: R.F. APPLICANT RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Director: Mr. J. Fitzmaurice Counsel for the Parent: Mr. I.

Lawson Counsel for the Applicant Mr. S. Robinson Place of Hearing: Smithers, B.C. Date of Hearing: July 9, 2020

Date of Judgment: July 14, 2020 Introduction [ 1 ] M.C.W. has five children, all of whom are in the temporary custody of the Director of Child, Family and Community Services Act (the “ CFCSA ”). M.C.W. and her children are members of the [omitted for publication] Nation. The eldest child is 16, the youngest is 2. The four youngest children (ages 2 to 9) have spent the majority of the last five years in the non-indigenous foster home of C.K. and T.K. [ 2 ] M.C.W. accepts that for the time being she is not able to parent her children. Her past traumas have taken their toll and she needs time to heal.

M.C.W. wants her four younger children to continue to live together in the care of C.K. and T.K. M.C.W. says the social workers for the Ministry of Child and Family Development (“MCFD”) and the [omitted for publication] Nation initially agreed with her plan of care. The Director does not agree. On October 10, 2019, the representative of the [omitted for publication] Nation advised the Court they wanted the W. children placed with an indigenous family.

Despite M.C.W.’ protests, MCFD and [omitted for publication] Nation social workers began facilitating access visits between the youngest child, C.R.F.W., and her adult half-sister, R.F. C.R.F.W. and R.F. had no prior relationship although they share the same biological father. R.F. is also a member of the [omitted for publication] Nation, but resides with her mother and step-father in [omitted for publication], which is a nine hour drive from Smithers, BC. [ 3 ] Over the past year, C.R.F.W.’s visits with R.F. increased in frequency and duration and she now resides with R.F. full-time.

R.F. asks the Court to add her as a party in these CFCSA proceedings so she can fully participate in the hearing of the Director’s application for a continuing custody order for all of M.C.W.’ children. R.F.’s ultimate goal is to obtain permanent custody of C.R.F.W. The Director supports R.F.’s application and M.C.W. vigorously opposes it. M.C.W.’ priority is to keep her younger children, including C.R.F.W., living with the C.K. and T.K. as a family unit. She views R.F.’s application as another step toward her family’s fragmentation.

Issue: [ 4 ] The sole issue in in this hearing is whether this Court should name R.F. as a party to these CFCSA proceedings. [ 5 ] R.F.’s application came before me for hearing on July 9, 2020. I heard from (

a) Mr. S. Robinson, legal counsel for R.F.; (

b) R.F. on her own behalf; (

c) Mr. J. Fitzmaurice, legal counsel for the Director; (

d) Mr. I. Lawson, legal counsel for M.C.W.; (

e) M.C.W. on her own behalf; (

f) Fern Abraham of the Carrier-Sekani Family Services; and (

g) Mike Cunningham of Streetcorners Ministries. I also had before me the court file, R.F.’s March 10, 2020 application and July 2, 2020 affidavit. At the conclusion of the hearing, I reserved my decision. This is my ruling on R.F.’s application to be named as a party in Smithers CFCSA F-17280 court proceedings. Background and procedural history [ 6 ] The background and procedural history of this CFCSA matter can be found in my decision indexed as M.C.W. v. British Columbia (Director of Child, Family and Community Service) , 2019 BCPC 289 and Judge Jackson’s decision M.C.W. v.

British Columbia (Director of Child, Family and Community Service) (14 February, 2020), Smithers F-17280 (BCPC). [ 7 ] M.C.W. is the biological mother of five children: a. B.C.W., born [omitted for publication], age 16; b. G.P.G.W., born [omitted for publication], age 9; c. G.A.R.W., born [omitted for publication] age 8; d. J.A.F.W., born [omitted for publication] age 5; and e. C.R.F.W., born [omitted for publication] age 2. [ 8 ] J.P.W. is the father of B.C.W.; C.D.W., now deceased, was the father of G.P.G.W., G.A.R.W. and J.A.F.W.; and D.J.R.F. is the father of C.R.F.W.

M.C.W., B.C.W., G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. are all members of the [omitted for publication] Nation. J.P.W. is a member of the born [omitted for publication] . D.C.W. was a member of the [omitted for publication] Nation born [omitted for publication] . D.J.R.F.’s indigenous status is unclear to me.

None of the fathers have participated in these proceedings. [ 9 ] M.C.W. has suffered a plethora of traumatizing experiences in her life, including prolonged child sexual abuse, a serious brain injury, the death of her daughter, intergenerational alcohol misuse, family violence, and the legacy of residential schools. M.C.W. turned to alcohol for solace which spawned a troubled and dysfunctional homelife.

The Director now has longstanding child protection concerns with M.C.W. arising from her chronic substance misuse, family violence, and child neglect. [ 10 ] B.C.W., M.C.W.’s eldest child, is in the temporary custody of the Director pursuant to an order made under 41(1)(

c) of the CFCSA on August 16, 2018. The four youngest children, G.P.G.W., G.A.R.W., J.A.F.W., and C.R.F.W. (collectively, the “Children”) are in the temporary custody of the Director pursuant to an order made under 42.2(4)(

b) of the CFCSA on June 26, 2018, and extended on June 27, 2019, under s. 45(1.1) until the Court decides the Director’s application for a continuing custody order. [ 11 ] M.C.W.’s four youngest children have spent much of the past five years in foster care with C.K. and T.K. When the Director removed the children and placed them with the C.K. and T.K., G.P.G.W., who is now nine was four years old, G.A.R.W., now eight was three years old, and J.A.F.W., now five years old was only five months. The Director removed C.R.F.W. from M.C.W.’ care on February

26, 2018, and placed her with the C.K. and T.K. At that time C.R.F.W. was about two and one-half months old. [ 12 ] On November 6, 2018, the Director filed an application for a continuing custody order (“CCO”) under s. 49(5) of the CFCSA with respect to all five of M.C.W.’s children (see CEIS Document 91). At this time G.P.G.W., G.A.R.W., J.A.F.W., and C.R.F.W. were in the foster care of C.K. and T.K. and B.C.W. was in the foster care of L.J.M. In support of its CCO application, the Director filed a Court Plan of Care (CEIS Document 92).

The Director indicated its overall goal of the plan of care was to “establish permanent placement for the children, preferably with extended family or within the cultural community.” [ 13 ] There have been approximately 44 court appearances in this CFCSA proceedings since they commenced. M.C.W. often attended court, either in person or through agent or legal counsel. Over the years, M.C.W. either consented to or did not oppose many of the orders the Director sought.

S.L.J. appeared on behalf of the [omitted for publication] First Nation at the October 10, 2019 and November 14, 2019 appearances when the Court heard M.C.W.’s November 7, 2019 application (CEIS Document 123) referenced below. None of the fathers ever appeared in court and none are party to these proceedings. [ 14 ] M.C.W. is poised to attend a three month residential substance abuse treatment program in Abbotsford followed by a further three month residential trauma treatment program on Vancouver Island.

M.C.W. accepts the children cannot be in her care at this time; however, she would very much like custody of her four youngest children, G.P.G.W., G.A.R.W., J.A.F.W., and C.R.F.W. (collectively, the “Children”) transferred permanently to C.K. and T.K. [ 15 ] M.C.W. believes it is in the Children’s best interests to remain living together as a family unit in C.K. and T.K.’s household.

M.C.W. says that on June 26, 2019, she attended a meeting at the “Old Church” building in Smithers with eleven other people, including three social workers, where all the participants agreed that custody of the four youngest Children should transfer to C.K. and T.K. permanently pursuant to s. 54.01 of the CFCSA rather than to the Director pursuant to a CCO. [ 16 ] Since the June 26, 2019 meeting, MCFD social worker Tricia Purnell and the [omitted for publication] Nation Child and Family Support Services Team Leader, S.L.J., began facilitating contact between C.R.F.W. and R.F., C.R.F.W.’s half-sister.

R.F. is 36 years old and resides with her mother and step-father on the outskirts of [omitted for publication]. R.F. and her mother, D.A., are members of the [omitted for publication] First Nation. D.J.R.F. is both C.R.F.W. and R.F.’s biological father. [ 17 ] Last fall, M.C.W. was distressed to learn the social workers had embarked on a course which would ultimately result in her Children being separated. Since then M.C.W. has repeatedly sought the Court’s assistance in keeping her Children living together in the care of C.K. and T.K.

I have referenced below some of M.C.W.’ efforts in this regard. [ 18 ] On September 4, 10, and 19, 2019, M.C.W.’ legal counsel, Mr. Lawson, wrote to the Director’s counsel seeking the Director’s agreement to pursue an order under s. 54.01 of the CFCSA permanently transferring custody of the Children to C.K. and T.K. [ 19 ] At the October 10, 2019 court appearance, S.L.J. informed the Court the [omitted for publication] First Nations Band was opposed to M.C.W.’s proposed s. 54.01 CFCSA order because C.K. and T.K are not indigenous.

The [omitted for publication] First Nations Band want the Children placed with an indigenous family. [ 20 ] On October 11, 2019, M.C.W. filed an application (Document 118) under the Constitutional Question Act , RSBC, 1998, c. 68, in which she alleged her security of person under s. 7 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) had been violated. M.C.W. sought, among other remedies, an order allowing a parent as well as a Director to make an application under

section 54.01 of the CFCSA to transfer permanent custody of the Children to C.K. and T.K pursuant to that section. [ 21 ] On November 7, 2019, M.C.W. filed an application for an order (CEIS Document 123) restricting access between the Children and any person outside the Bulkey Valley, and for priority scheduling for the hearing of the Director’s November 6, 2018 CCO application. M.C.W.’s November 7, 2019 application (CEIS Document 123) came on for hearing before me on November 14, 2019.

On December 5, 2019, I rendered my ruling (CEIS Document 124) in which I dismissed M.C.W.’s November 7, 2019 application, concluding that it is the Director, not the Court, which exercises the parental responsibilities to a child-in-care. I found that facilitating visits between C.R.F.W. and her sister R.F. fell squarely within the Director’s legislated rights, duties, and responsibilities as C.R.F.W.’s custodian and guardian. [ 22 ] On December 20, 2019, the Attorney General of British Columbia filed a Notice of Application (CEIS Document 127) seeking an order that M.C.W.

October 11, 2019 application under the Constitutional Question Act be summarily dismissed on a preliminary basis. [ 23 ] On January 28, 2020, M.C.W. filed an affidavit (CEIS Document 128) complaining that since filing her October 11, 2019 affidavit, MCFD social workers had been sending the Children to [omitted for publication] to spend time with R.F.

She cited (at para. 5) in her affidavit the minutes of the June 26, 2019 Old Church Meeting: [M.C.W.] feels like the children are safe with [C.K. and T.K.], [M.C.W.] wants the children to stay with [C.K. and T.K.] through a 54.01, [S.L.J.] is in support of this from [omitted for publication] nation as long as there are specific cultural plans written into the agreement, as well as access orders, so everyone is kept accountable. [ 24 ] To her affidavit, M.C.W. appended 11 letters from her extended family expressing their support for the Children remaining together in the C.K. and T.K.’s care. [ 25 ] On January 20, 2020, M.C.W.’s October 11, 2019 application and the Attorney General’s December 20, 2019 application came on for hearing before Judge Jackson in Smithers Provincial Court.

On February 14, 2020, Judge Jackson dismissed M.C.W.’s October 11, 2019 application for Charter relief as unnecessary or impossible or moot (CEIS Document 132). [ 26 ] Also on January 2, 2020, the Judicial Case Manager scheduled a four day hearing of the Director’s November 6, 2018 application for a continuing custody order (CEIS, Document 91) commencing on April 20, 2020, and continuing on April 22, 2020,

April 24, 2020, and May 15, 2020. [ 27 ] On March 10, 2020, R.F. filed an Application for an Order that she be added as a party to these CFCSA proceedings (CEIS Document 129). [ 28 ] On March 12, 2020, M.C.W. filed an Application for an Order pursuant to s. 49(7)(

a) of the CFCSA seeking an order the Children be returned to her custody and forthwith thereafter: An order pursuant to s. 42.2(4)(

c) that the Children be placed in the custody of [C.K. and T.K.]; and then An order pursuant to s. 54.01 that the custody of the Children be permanently transferred to [C.K. and T.K.]. Alternatively, M.C.W. consents to the order the Children be in the continuing custody of the Director and then, on the 31 st day thereafter: An order pursuant to s. 54.1(1) that the custody of the Children be permanently transferred to [C.K. and T.K.]. (CEIS Document 130) [ 29 ] On March 27, 2020, R.F. filed an Application for an Order that her March 10, 2020 application be heard on an urgent basis (CEIS Document 131).

On March 30, 2020, R.F. appeared before Judge Wright and withdrew her March 27, 2020 application for an urgent hearing because the upcoming hearing dates for the CCO had been cancelled. [ 30 ] On July 2, 2020, R.F. swore an affidavit in support of her March 10, 2020 application to be added as a party to these CFCSA proceedings (CEIS Document 133). She has provided DNA evidence proving her and C.R.F.W.’s sibling relationship.

R.F. states that in 2018, her aunt, M.F., informed her that C.R.F.W. and one of her brothers would be residing with her, an arrangement which MCFD would facilitate. [ 31 ] R.F. advocates for C.R.F.W. remaining in her permanent care. She says she has acted as a foster parent for MCFD in the past. She cared for one of her nieces in 2018 and assisted with Children in Care for [omitted for publication] Child & Family Services, an indigenous agency in Kamloops. R.F. states: It is my desire for C.R.F.W. to remain in my care.

I believe that it is in her best interest to reside with me permanently. [ 32 ] R.F. first made contact with C.R.F.W. and the other Children on the 2019 May long weekend at the [omitted for publication] smolt release and again in August 2019 when she and C.R.F.W. participated in a [omitted for publication] First Nation drumming workshop in [omitted for publication], BC.

Since then R.F. has had C.R.F.W. in her care for the following periods: a. 13 Sep 2019 to 17 Sep 2019 b. 27 Sept 2019 to 4 Oct, 2019 c. 10 Oct 2019 to 18 Oct 2019 d. 24 Oct 2019 to 1 Nov 2019 e. 5 Nov 2019 to 13 Nov 2019 f. 26 Nov 2019 to 8 Dec 2019 g. 27 Dec 2019 to 10 Jan 2020 h. 20 Jan 2020 to 9 Feb 2020 i. 16 Feb 2020 to 28 Feb 2020 j. 9 Mar 2020 ongoing. [ 33 ] C.R.F.W. has her own bedroom at R.F.’s residence and “everything else a child requires to be healthy and happy.” She has taken C.R.F.W. fishing and berry picking.

R.F.’s mother is teaching C.R.F.W. the Carrier language. [ 34 ] Since first making contact with C.R.F.W., R.F. has made efforts to maintain C.R.F.W.’s cultural continuity with the [omitted for publication] First Nation. C.R.F.W. has also had multiple video calls with her siblings. R.F. has emailed pictures and videos of C.R.F.W. to both MCFD and C.K. R.F. has been working with Social Worker Trisha Purnell to enable in-person visits between C.R.F.W. and her siblings; however, the COVID-19 pandemic has made those visits difficult to facilitate.

Recently, R.F. and C.R.F.W. had a four day visit with G.P.G.W., G.A.R.W., and J.A.F.W. in Prince George, BC. B.C.W. declined to participate in this gathering. R.F. and social worker Purnell are working on establishing another sibling reunion in the near future. [ 35 ] M.C.W. has petitioned the B.C.

Supreme Court asking it to exercise its parens patriae jurisdiction and enforce the agreement she says was made between M.C.W. and the Director on June 26, 2019, that custody of the Children transfer to C.K. and T.K. permanently pursuant to s. 54.01 of the CFCSA rather than to the Director pursuant to a CCO. (See: Smithers BCSC File 18444) [ 36 ] M.C.W. has also appealed Judge Jackson’s February 14, 2020 Ruling dismissing her October 11, 2019 application for Charter relief (CEIS Document 132). (See: Smithers Registry BCSC File 18443). No date has been set for the hearing of this appeal.

[37] The CCO hearing has yet to be rescheduled and is expected to take six days. Mr. Cunningham, who has been counsellingM.C.W., advised the Court the residential treatment facilities she plans to attend will permit M.C.W. to leave the facility for the purposesof attending court. Issue: Should this Court name R.F. as a party in these CFCSA proceedings at this stage? [38] R.F. seeks to become a party so she can fully participate in these proceedings, receive disclosure, make submissions, give andcall evidence, and seek relief at the continuing custody hearing.

Specifically, R.F. will pursue an order granting her permanent custody ofC.R.F.W. Mr. Robinson, on R.F.’s behalf, submits that an order adding R.F. as a party to these proceedings would not impede the trialand will assist the Court in determining the issues it has to decide. He argues as MCFD has placed her in R.F.’s care, it is in C.R.F.W.’sbest interests to have R.F.’s evidence before the Court. R.F. is also contemplating making an application for guardianship of C.R.F.W.under the Family Law Act. [39] The Director supports R.F.’s application to be added as a party to the CFCSA proceedings. Mr.

Fitzmaurice submits thattypically the Director opposes applications of this nature, primarily out of safety concerns or, where the applicants are MCFD fosterparents, contractual limitations. Because the hearing of the Director’s CCO application has to be rescheduled in any event, the Directordoes not believe that adding R.F. as a party will unduly delay or prolong the hearing. R.F.’s evidence will assist the Court in makingdecisions about cultural continuity in C.R.F.W.’s best interests. [40] M.C.W. opposes R.F.’s application.

She does not want C.R.F.W. separated from her siblings and sent to live with R.F. in[omitted for publication]. Mr. Lawson, speaking for M.C.W., acknowledges the Court has jurisdiction under s. 39(4) to add R.F. as aparty to these proceedings, but submits it should decline to do so. He argues that adding R.F. will further delay and complicate theproceedings. Moreover, R.F.’s application is pointless as the Court cannot make the order she seeks by virtue of s. 49(7) of the CFCSA.

Issue: Should this Court name R.F. as a party in these CFCSA proceedings at this stage? [41] There is no dispute that s. 39(4) of the CFCSA empowers the Court to name a person as a party at any hearing. R.F. and theDirector submit the Court would benefit from R.F. being added as a party to these proceedings; M.C.W. argues to do so would undulydelay and complicate the proceedings with little benefit to the Court or R.F. [42] In J.L. v.

Director of Child, Family and Community Service, 2001 BCSC 1604, Justice Hutchinson considered the mother’sappeal of the decision of the Provincial Court Judge to name the grandparents as parties to the CFCSA proceedings.

Justice Hutchinsonexplained the consequence of making such an order: [7] A person who acquires the status of a party under the Act is entitled to notice of every hearing; is entitled to be heard and callwitnesses at the hearings; may apply to rescind an order under s. 54; has the right to attend a case conference; is entitled to disclosure ofthe records in the possession of the Director; is entitled to apply for defined access; and their consent must be obtained if a consent orderis to be valid. . . [43] Justice Hutchinson allowed the mother’s appeal and set aside the Provincial Court order making the grandparents parties to theCFCSA proceedings.

He held (at paras. 10 and 11) the Court’s discretion to add a person as a party should be used sparingly, and only ifthe matter demands it for the proper resolution of the issues under consideration. [44] J.L. was considered and applied in S.D. and S.B. v. Director, 2016 BCPC 38 . In that case the child had been livingwith his paternal aunt and uncle for a number of years. The aunt and uncle sought to be added as a party to the CFCSA proceedingspursuant to s. 39(4). Judge Merrick was not persuaded there was anything the aunt and uncle could add to the proceedings if they werenamed as parties.

The aunt and uncle could still testify, present their full knowledge, be examined and cross-examined. There was noneed for them to become parties. [45] Section 49(1) of the CFCSA a governs continuing custody hearings and orders, and it states: 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custodyorder.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearingmust be served as follows: (

a) on the child, if 12 years of age or over; (

b) on each parent; (

c) if the child is a First Nation child, on a designated representative of the First Nation; (c.1) if the child is a Nisga'a child, on a designated representative of the Nisga'a Lisims Government; (c.2) if the child is a Treaty First Nation child, on a designated representative of the Treaty First Nation; (

d) if the child is not a First Nation child, a Nisga'a child nor a Treaty First Nation child but is an Indigenous child, on a designatedrepresentative of another Indigenous community that has been identified by (

i) the child, if 12 years of age or over, or (ii) the parent, if the child is under 12 years of age; (d.1) any person who has been made a party under section 39 (4);

(d.2) any person who has custody of the child under section 41 (1) (b), 42.2 (4) (c), 54.01 (9) (

b) or subsection (7) (

b) of this section; (

e) on the Public Guardian and Trustee, if appointed as the child's property guardian under

section 58.

(3) If a person referred to in subsection (2) (

b) to (d.2) appears at the commencement of the continuing custody hearing, that person is entitled (

a) to be a party at the hearing, and (

b) to notice of a hearing under

section 42.2, 54, 56 or 57 and, if the person appears at the commencement of the hearing, to be a party at that hearing.

(4) The court must order that the child be placed in the continuing custody of the director if (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

b) a parent is unable or unwilling to resume custody of the child.

(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that (

a) the circumstances that led to the child's removal will improve within a reasonable time, or (

b) the parent will be able to meet the child's needs.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent's care, (

b) the plan of care, and (

c) the child's best interests.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. [ 46 ] In its November 6, 2018 application, the Director applied for a CCO under s. 49(5) of the CFCSA , which means it is open to the Court to make what is generally referred to as a “last chance order” under ss. 49(7)(

b) or (c). If the Director had applied under s. 49(9), then the Court’s only choice would be to place the children in the continuing custody of the director or return them to the parent apparently entitled to custody, which in this case is M.C.W. [ 47 ] The only legislative authority permitting the Court to make an order placing a child in the custody of someone other than the director or the parent at a CCO hearing is s. 49(7)(b).

Section 1 of the CFCSA defines a " temporary custody order" as follows: "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; Section 49(7)(

b) empowers the Court to order a child, “ remain in the temporary custody of a person other than the parent for a specified period of up to 6 months.” [ 48 ] Mr. Robinson did not fully articulate the legislative pathway by which R.F. intends to pursue an order granting her permanent custody of C.R.F.W., beyond seeking relief under s. 49(7)(b). I presume if she could be and was granted temporary custody of C.R.F.W. at the CCO hearing, R.F. may become an eligible candidate for a permanent custody order under s. 54.01 of the CFCSA .

As Judge Jackson noted in his February 14, 2020 Ruling, s. 54.01 of the CFCSA allows the Court to make a permanent custody order on application of the Director and only then if the subject child is in the care of a person who is neither a parent nor the Director pursuant to an agreement made under s. 8 of the CFCSA or a temporary custody order made under ss. 41(1)(b), 42.2(4)(c), 49(7)(b), or 54.01(9)(b).

[49] The Children, including C.R.F.W., are in the temporary custody of the Director pursuant to an order made under s. 42.2(4)(

b) ofthe CFCSA on June 26, 2018. There is no extant order placing C.R.F.W. in R.F.’s temporary custody. It is the Director who permitsC.R.F.W. to reside with R.F., which is within the scope of its legislated authority under s. 47 of the CFCSA. Mr. Lawson submits theCourt is precluded from placing C.R.F.W. in R.F.’s “temporary custody” under s. 49(7)(

b) by the presence of the word “remain.” Heargues the remedy set out in s. 49(7)(

b) is only available if C.R.F.W. was in the temporary custody of R.F. by court order prior to thecommencement of the CCO hearing, which she was not. [50] The Provincial Court is a statutory court and lacking any parens patriae jurisdiction. The issue as to whether s. 49(7)(

b) can bebroadly construed so as to empower the Court to grant R.F. temporary custody of C.R.F.W. in the absence of an existing order engagesthe principles of statutory

interpretation. The CFCCA defines “custody” as including “care and guardianship of a child” and“guardianship” as including “all the rights, duties and responsibilities of a parent.”

Section 12 of the

Interpretation Act, RSC 1985, c I-21, states: 12 Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and

interpretation as best ensures theattainment of its objects. [51] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada reaffirmed the“modern principle” of statutory

interpretation [citations omitted]: [117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory

interpretation, that is, that thewords of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament” . . . [118] This Court has adopted the “modern principle” as the proper approach to statutory

interpretation, because legislative intent can beunderstood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context.. . Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to thetext, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decisionmaker… [52] The text in issue is the phrase, “the child remain in the temporary custody of a person other than the parent. . .” contained in s.49(7)(

b) of the CFCSA. The context is the Court’s residual options if it does not make a continuing custody order in favour of theDirector at the conclusion of the CCO hearing. When interpreting s. 49(7) the Court must consider the purposes and guiding principles ofnot only the CFCSA, but also

An Act respecting First Nation, Inuit and Métis children, youth and families, S.C. 2019, c. 24, (the“Federal Act”) which came into force on January 1, 2020. [53] In British Columbia (Child, Family and Community Service) v. S.H., 2020 BCPC 82 , Judge Whyte reviewed theFederal Act at length. He determined the child and family services provided under the CFCSA fell within the ambit of the Federal Act.He held that although the Federal Act was substantially congruent with the CFCSA, where there are conflicts or inconsistencies, FederalAct’s national standards prevail.

Judge Whyte concluded: a. the guiding principles found in s. 2 of the CFCSA are consistent with the purposes and principles found in ss. 8 and 9 of theFederal Act: para. 119; b. the service delivery principles set out in its s. 11 of the Federal Act are consistent with those found in s. 3 of the CFCSA: para.118; c. although the best interests of the child factors set out in s. 4 of the CFCSA are not exhaustive, neither are they as expansive asthe list of factors set out in s. 10 of the Federal Act when determining the best interests of an Indigenous child.

The factors enumerated ins. 10(3) of the Federal Act are specific categories that must be addressed: pars. 120-125; d. the most significant discrepancy between the CFCSA and the Federal Act is the Federal Act’s direction that the best interests ofthe child be considered at all stages of the child protection process, whereas the CFCSA only requires the best interests of the child to beconsidered when a particular

section or subsection directs: para. 126; and e. while s. 71 of the CFCSA and s. 16 of the Federal Act prioritizing the placement of Indigenous children are similar, s. 16 of theFederal Act is paramount: paras. 128-129. [54] I set out below reference above for ease of reference. [55] The guiding principles for interpreting the CFCSA are set out in s. 2. They read: Guiding Principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and inaccordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children restsprimarily with the parents; (b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be

provided; (

d) the child's views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child's attachment to the extended family should be preserved if possible; (

f) Indigenous children are entitled to (

i) learn about and practise their Indigenous traditions, customs and languages, and (ii) belong to their Indigenous communities; (

g) decisions relating to children should be made and implemented in a timely manner. [ 56 ] The comparative provisions to s. 2 of the CFCSA are ss. 8 and 9 of the Federal Act , which state: Purpose 8 The purpose of this Act is to (

a) affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services; (

b) set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children; and (

c) contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Principle — best interests of child 9

(1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child. Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts: (

a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people; (

b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity; (

c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected; (

d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and (

e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered. Principle — substantive equality

(3) This Act is to be interpreted and administered in accordance with the principle of substantive equality as reflected in the following concepts: (

a) the rights and distinct needs of a child with a disability are to be considered in order to promote the child’s participation, to the same extent as other children, in the activities of his or her family or the Indigenous group, community or people to which he or she belongs; (

b) a child must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

c) a child’s family member must be able to exercise his or her rights under this Act, including the right to have his or her views and preferences considered in decisions that affect him or her, and he or she must be able to do so without discrimination, including discrimination based on sex or gender identity or expression; (

d) the Indigenous governing body acting on behalf of the Indigenous group, community or people to which a child belongs must be able to exercise without discrimination the rights of the Indigenous group, community or people under this Act, including the right to have the views and preferences of the Indigenous group, community or people considered in decisions that affect that Indigenous group, community or people; and (

e) in order to promote substantive equality between Indigenous children and other children, a jurisdictional dispute must not result in a gap in the child and family services that are provided in relation to Indigenous children. [ 57 ] The service delivery principles in s. 3 of the CFCSA state:

Service Delivery Principles 3 The following principles apply to the provision of services under this Act: (

a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them; (

b) Indigenous people should be involved in the planning and delivery of services to Indigenous families and their children; (

c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; (c.1) the impact of residential schools on Indigenous children, families and communities should be considered in the planning and delivery of services to Indigenous children and families; (

d) services should be integrated, wherever possible and appropriate, with services provided by government ministries, community agencies and Community Living British Columbia established under the Community Living Authority Act ; (

e) the community should be involved, wherever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children [ 58 ] The comparator to s. 3 of the CFCSA in the Federal Act is s. 11 , which governs the effect of services, which states: Effect of Services 11 Child and family services provided in relation to an Indigenous child are to be provided in a manner that (

a) takes into account the child’s needs, including with respect to his or her physical, emotional and psychological safety, security and well-being; (

b) takes into account the child’s culture; (

c) allows the child to know his or her family origins; and (

d) promotes substantive equality between the child and other children. [ 59 ]

Section 4 of the CFCSA sets out a non-exhaustive list of factors which must be considered when considering the best interests of the child. It states: Best Interests of the Child 4

(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including for example: (

a) the child's safety; (

b) the child's physical and emotional needs and level of development; (

c) the importance of continuity in the child's care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child's cultural, racial, linguistic and religious heritage; (

f) the child's views; (

g) the effect on the child if there is delay in making a decision.

(2) If the child is an Indigenous child, in addition to the relevant factors that must be considered under subsection (1), the following factors must be considered in determining the child's best interests: (

a) the importance of the child being able to learn about and practise the child's Indigenous traditions, customs and language; (

b) the importance of the child belonging to the child's Indigenous community. [ 60 ]

Section 10 of the Federal Act also includes a list of factors to be considered when determining the best interests of an Indigenous child, it states: Best interests of Indigenous child 10

(1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration. Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical,

emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture. Factors to be considered

(3) To determine the best interests of an Indigenous child, all factors related to the circumstances of the child must be considered, including (

a) the child’s cultural, linguistic, religious and spiritual upbringing and heritage; (

b) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

c) the nature and strength of the child’s relationship with his or her parent, the care provider and any member of his or her family who plays an important role in his or her life; (

d) the importance to the child of preserving the child’s cultural identity and connections to the language and territory of the Indigenous group, community or people to which the child belongs; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) any plans for the child’s care, including care in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs; (

g) any family violence and its impact on the child, including whether the child is directly or indirectly exposed to the family violence as well as the physical, emotional and psychological harm or risk of harm to the child; and (

h) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Consistency (4) Subsections (1) to (3) are to be construed in relation to an Indigenous child, to the extent that it is possible to do so, in a manner that is consistent with a provision of a law of the Indigenous group, community or people to which the child belongs. [ 61 ]

Section 71 of the CFCSA establishes an order of priority to be used when determining the placement of a child. It states: Out-of-home living arrangements 71

(1) When deciding where to place a child, the director must consider the child's best interests.

(2) The director must give priority to placing the child with a relative or, if that is not consistent with the child's best interests, placing the child as follows: (

a) in a location where the child can maintain contact with relatives and friends; (

b) in the same family unit as the child's brothers and sisters; (

c) in a location that will allow the child to continue in the same school.

(3) If the child is an Indigenous child, the director must give priority to placing the child as follows: (

a) with the child's extended family or within the child's Indigenous community; (

b) with another Indigenous family, if the child cannot be safely placed under paragraph (a); (

c) in accordance with subsection (2), if the child cannot be safely placed under paragraph (

a) or (

b) of this subsection. [ 62 ]

Section 16 of the Federal Act also prioritizes the placement of Indigenous children. It states: 16

(1) The placement of an Indigenous child in the context of providing child and family services in relation to the child, to the extent that it is consistent with the best interests of the child, is to occur in the following order of priority: (

a) with one of the child’s parents; (

b) with another adult member of the child’s family; (

c) with an adult who belongs to the same Indigenous group, community or people as the child; (

d) with an adult who belongs to an Indigenous group, community or people other than the one to which the child belongs; or (

e) with any other adult. [ 63 ] Section 49(6) requires the Court to consider the best interests of the child before making a continuing custody order. Section 49(7) makes no such direction. In S.H. , at para. 127 , Judge Whyte concluded that because of the paramountcy provision of the Federal Act , the Court must consider the best interest of the child at all states of the CCO hearing, including s. 49(7).

Determination [ 64 ] My task today is not to decide whether R.F. ought to be granted custody of C.R.F.W., temporary or otherwise. Rather, I am asked to decide whether R.F. ought to be added as a party to these CFCSA proceedings. Militating in favour of doing so is the fact R.F. is, (

a) C.R.F.W.’s full-time caregiver at the present time; (

b) an adult member of C.R.F.W.’s family; (

c) a member of the [omitted for publication] First Nation; (

d) committed to preserving C.R.F.W.’s cultural identity; (

e) facilitating C.R.F.W. learning the [omitted for publication] First Nation’s language; (

f) committed to preserving C.R.F.W.’s relationship with her siblings; (

g) supported in her caregiving role by the [omitted for publication] First Nation; (

h) supported in her application and caregiving role by the Director; (

i) directly affected by the Director’s application for a continuing custody order of all the Children, including C.R.F.W. Militating strongly against adding R.F. to these CFCSA proceedings is the fact that to do so will likely further delay and complicate the CFCSA proceedings in both the Provincial and Supreme courts. Given the dual statutory mandates governing child protection services in the CFCSA and the Federal Act , I am not convinced naming R.F. as a party will provide the Court with information or a perspective it might not otherwise receive.

R.F. undoubtedly has important evidence the Court needs to hear, as do many other witnesses. The Director and the [omitted for publication] First Nations Band, already parties to these proceedings and supportive of R.F.’s caregiving role, can simply call R.F. and her mother (D.A.) as witnesses at the CCO hearing. Having said that, I recognize that if R.F. continues as C.R.F.W.’s full-time caregiver, then it may well be in C.R.F.W.’s best interest for R.F. to be added as party in the CFCSA proceedings.

Nevertheless, I find as long as M.C.W.’s appeal and petition to the Supreme Court (Smithers Registry BCSC Files 18443 and 18444) remain active and outstanding this Court should not add R.F. as an additional party to these CFCSA proceedings. Once the Supreme Court proceedings are resolved, then R.F. has leave to renew her application to be named as party. ___________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia