DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 129

Citation: British Columbia (Child, Family and Community Service) v. S.J.P. 2020 BCPC 129 Date: 20200630 File No: 18264 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: L.J.C.PW. , born [omitted for publication] M.N.C.P, born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.J.P. PARENT AND: J.J.W. PARENT RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Director: J. Yuen , via telephone Counsel for mother: I. Lawson , via telephone

Place of Hearing: Smithers , B.C. Date of Hearing: June 25, 2020 Date of Judgment: June 30, 2020 A Corrigendum was released by the Court on July 6, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] The Director of the Child, Family and Community Services Act (“the CFCSA ”) first became involved in S.J.P. and J.J.W.’s young family on August 14, 2018. At the time, they lived in [omitted for publication] with their eldest daughter, M.N.C.P., who was just shy of her first birthday. The parents are both Indigenous, albeit from different nations.

S.J.P. is a member of the [omitted for publication] First Nation and J.J.W. is a member of the [omitted for publication] Nation. Initially the Director attempted to address its concerns about the parents’ substance misuse and family violence with less disruptive measures, which included a Voluntary Care Agreement for M.N.C.P. and a Supervision Order for L.J.C.PW., born [omitted for publication]. [ 2 ] On June 26, 2019, the Director determined these alternate measures were inadequate for the children’s protection and removed both children from S.J.P. and J.J.W.’s care.

They placed the children in a foster home in [omitted for publication], BC. At that time, J.J.W. and S.J.P. still resided in [omitted for publication]. Shortly thereafter, S.J.P. returned to her home community in [omitted for publication]. She has since moved to Prince George. The Director’s plan of care for the children is to eventually return them to their parents. Because they do not reside even close to the community where the children are fostered, S.J.P. and J.J.W. have had little parenting time with their children since their removal.

S.J.P. is frustrated at the meagre amount and poor quality of parenting time doled out to her. J.J.W. appears to have given up. The Director seeks an order pursuant to Rule 8 (12) of the Provincial Court (CFCSA) Rules that this file be transferred to the Prince George Court Registry for all purposes. S.J.P. strongly opposes the Director’s application because of the inevitable delay a change of venue will engender.

ISSUES [ 3 ] The salient issue before the Court is whether this CFCSA file ought to be transferred to Prince George Court Registry for all purposes. [ 4 ] The Director’s file transfer application (CEIS Document 19) came for hearing before me in Smithers Provincial Court on June 25, 2020, by order of Judge Leven made June 16, 2020. I heard from Mr. Jonathan Yuen, legal counsel for the Director, and Mr. Ian Lawson, legal counsel for S.J.P. Both counsel appeared by telephone. J.J.W. did not appear at the hearing either in person or by counsel or agent. At the end of the hearing I reserved my decision.

This is my ruling on the Director’s application. OVERVIEW OF THE PROCEDURAL HISTORY [ 5 ] These CFCSA proceedings commenced in the Smithers Provincial Court on May 9, 2019. Since then there have been 15 court appearances and 28 documents filed with respect to this matter. At each court appearance the Director was represented by its present legal counsel, Mr. Jonathan Yuen. Also generally present, was Dixie Oaks, the Director’s delegate and social worker for the Ministry of Child and Family Development (“MCFD”). S.J.P. was represented by Ms.

Locke Q.C. until August 15, 2019, after which S.J.P. was represented by her current legal counsel, Mr. Ian Lawson. J.J.W. was represented by Ms. Megan Olson until she withdrew as counsel of record for J.J.W. on June 16, 2020. [ 6 ] In support of this file transfer application (CEIS Document 19), the Director relies on the affidavit of S.J.P., filed January 17, 2020 (CEIS Document 18), the affidavit of Dixie Oaks, filed January 24, 2020 (CEIS Document 24), and the affidavit of Celina Moore, filed June 19, 2020 (CEIS Document 30). Mr. Yuen has also filed written submissions in support of the Director’s application.

In deliberating the Director’s file transfer application, I have reviewed all these materials as well as the pleadings and affidavits filed and orders made in this CFCSA matter since its inception. I have also heard and considered the oral submission of Counsel and reviewed the Court record when I thought necessary.

BACKGROUND FACTS AND PROCEDURAL HISTORY [ 7 ] S.J.P. and J.J.W. (“the “parents”) are the parents of M.N.C.P., born [omitted for publication] and L.J.C.PW., born [omitted for publication] (together with M.N.C.P., the “children”). [ 8 ] S.J.P. resides in [omitted for publication] and has done so most of her life. She is a member of the born [omitted for publication] Nation. J.J.W. is a member of the [omitted for publication] First Nation, and ordinarily resides in [omitted for publication], BC. [ 9 ] MCFD became involved with S.J.P. and J.J.W.’s family on August 14, 2018.

At that time, S.J.P. resided in [omitted for publication] with J.J.W., albeit briefly. They lived with M.N.C.P., who was almost one year old. M.N.C.P.’s paternity is unclear. MCFD social workers had concerns about S.J.P. and J.J.W.’s substance misuse and domestic violence. [ 10 ] On February 7, 2019, S.J.P. placed M.N.C.P. with K.M. under a Voluntary Care Agreement (“VCA”). Ms. Miles is family member and a MCFD-approved foster parent. This VCA was renewed on March 28, 2019. [ 11 ] On [omitted for publication], S.J.P. gave birth to L.J.C.PW. in the [omitted for publication] Hospital in Smithers, BC.

At a discharge meeting, S.J.P. advised the social workers, Dixie Oaks and Reid Saffarek, she intended to attend a family treatment program with J.J.W., M.N.C.P., and L.J.C.PW. [ 12 ] On May 9, 2019, the Director filed with the Smithers Provincial Court Registry a Presentation Form to the Court under s. 29.1 of the CFCSA (CEIS Document 1) asserting reasonable grounds to believe L.J.C.PW. needed protection and a supervision order would

be adequate to protect him. That same day, the Director filed a Form F Report to Court (CEIS Document 2). [ 13 ] The Director’s May 9, 2019 Application (CEIS Documents 1 & 2) came before Judge Jackson for hearing on May 16, 2019, in Smithers Provincial Court. Neither S.J.P. nor J.J.W. personally attended the hearing. Ms. Linda Locke Q.C. appeared as agent and legal counsel for S.J.P. and Ms.

Megan Olson appeared as agent and legal counsel for J.J.W On that day, Judge Jackson ordered pursuant to s. 33.2 of the CFCSA that L.J.C.PW. remain in the care of his parents under the Director’s interim supervision, on the following 16 conditions: 1. L.J.C.PW. shall reside with his parents at the residence of C.W. and R.R. at [omitted for publication]; 2. S.J.P. will reside at the [omitted for publication] House in [omitted for publication] at agreed upon dates in order to attend necessary medical and counseling appointments in [omitted for publication].

S.J.P. may take L.J.C.PW. with her to [omitted for publication] House when she travels to [omitted for publication] for these appointments; 3. L.J.C.PW. shall not reside at any residence other than [omitted for publication] or [omitted for publication] House without the written approval of the Director, obtained in advance; 4. While staying at the [omitted for publication] House, S.J.P. will not remove L.J.C.PW. except in circumstances approved by the Director; 5. The parents must ensure the L.J.C.PW. is always under the supervision of a responsible adult caregiver that is approved by the Director; 6.

The parents must ensure that no-one consumes, is under the influence of, or possesses alcohol or drugs, as that term is defined in the Controlled Drugs and Substances Act , except where possessed or consumed in accordance with a valid medical prescription (“Drugs”), in L.J.C.PW.’s presence or in any place L.J.C.PW. is being cared for; 7. The parents must not be in L.J.C.PW.’s presence while in possession of or under the influence of drugs or alcohol; 8. The parents shall submit to random urinalysis tests at the Director’s request. A missed test without reasonable explanation is deemed a breach of this Order; 9.

S.J.P. shall attend counselling with a counselor approved of by the Director. The counselor, S.J.P., and the Director will meet and consult to develop service and other goals for counseling, including frequency of appointments and topics to cover, including drug and alcohol and domestic violence issues. S.J.P. will continue to meet with the counselor until such time as the counselor, in consultation with the Director, determines that the goals of counseling have been achieved; 10. J.J.W. shall attend counseling approved of by the Director.

The counselor, J.J.W., and the Director will meet and consult to develop service and other goals for counseling, including frequency of appointments and topics to cover, including drug and alcohol and domestic violence issues. J.J.W. will continue to meet with the counselor until such time as the counselor, in consultation with the Director, determines that the goals of counseling have been achieved; 11. The parents will ensure there is no violence between them, either verbal or physical, in the presence of L.J.C.PW.; 12.

The parents will ensure that L.J.C.PW. receives regular medical treatment as directed by health professionals, and follow up with all referrals and recommendations made by medical health professionals; 13. The parents will attend all scheduled appointments with the Director or the Director’s delegate; 14. The Director must have direct and private, announced and unannounced access with L.J.C.PW., and direct, announced and unannounced access to L.J.C.PW.’s residence or any place he is being cared for, as often as the Director deems necessary to ensure L.J.C.PW.’s safety and well-being; 15.

The parents hereby consent to the release of information from counselors and service providers, including medical professionals, to the Director regarding their attendance, participation, and general progress at all counseling and other appointments. In the absence of a signed consent, this order is full and sufficient authority for all the parents’ counsellors and other service providers, including medical professionals, to release such information to the Director; and 16.

The Director must remove L.J.C.PW. if terms 7 and 14 are not complied with, and may remove L.J.C.PW. if any of the remaining terms are breached. [ 14 ] In its Form F filed May 9, 2019 (CEIS Document 2), the Director indicates the [omitted for publication] Nation and [omitted for publication] Family Services were involved in crafting the conditions set out in the supervision order.

Judge Jackson’s May 16, 2019 supervision order expired at 4:30 p.m. on the next scheduled court date for a subsequent appearance on the presentation hearing or upon further court order. [ 15 ] The Director’s May 9, 2019 application (CEIS Documents 1 & 2) came before Judge Doulis for hearing on June 13, 2019, in Smithers Provincial Court. Neither parent was personally present, however, both parents were represented at the hearing by counsel. S.J.P. was represented by Ms. Locke Q.C., and J.J.W., by Ms. Megan Olson.

On June 13, 2019, Judge Doulis ordered by consent, that pursuant to s. 33.2 of the CFCSA L.J.C.PW. remain in the parents’ care under the Director’s interim supervision for an additional three months on the same terms and conditions as set out in Judge Jackson’s May 16, 2019 order. [ 16 ] The Director says that on June 26, 2019, S.J.P. attended MCFD’s offices in Smithers, BC with L.J.C.PW., then two months old, and Amy Stokes, her counsellor from the Northern Society for Domestic Peace. At that time S.J.P. and Ms. Stokes met with MCFD

social worker Dixie Oaks, team leader, Anita Basset, and [omitted for publication] Nation Child and Family Support Service Worker, Sara Jack. S.J.P. admitted that she and J.J.W. had recently relapsed by taking methamphetamines while caring for L.J.C.PW. in [omitted for publication].

As result of this admission the Director removed L.J.C.PW. from his parents’ care at 3:00 p.m. on June 26, 2019. [ 17 ] On July 2, 2019, the Director filed with the Smithers Provincial Court Registry a Presentation Form 1 (CEIS Document 8) asserting reasonable grounds to believe the children need protection and no less disruptive available measure was adequate to protect them. The Director sought an order pursuant to s. 42 of the CFCSA on the basis the parents had not complied with the terms of Judge Doulis’ June 13, 2019 supervision order and the Director was required to remove the children.

The Director made this application with respect to both M.N.C.P. and L.J.C.PW. although only L.J.C.PW. was subject to the May 16, 2019 and June 13, 2019 supervision orders. [ 18 ] Also on July 2, 2019, the Director filed a Form A (CEIS Document 9) setting out the circumstances which caused the Director to remove the children from the parents’ care.

In this document, the Director stated in part: Due to the parents’ failure or refusal to address concerns surrounding their drug use since February 2019, and that a VCA’s express purpose is to serve as a short-term care while parents address the Director’s concerns, the VCA no longer served its purpose, and M.N.C.P. was also brought into care. . .

Due to the breach of the supervision order, and the parents’ ongoing drug use, the Director believes that there is no less intrusive measure available to keep the children safe while the parents take steps to address their drug use and related issues. [ 19 ] This matter came before the Court on July 3, 2019. Neither parent attended court personally. J.J.W. was represented at the hearing by legal counsel, Ms. D. McConnell, acting as agent for Ms. Locke Q.C. S.J.P. did not attend personally or by agent or legal counsel.

The matter was adjourned on July 3, 2019 and brought back before the Court again on August 15, 2019. Neither parent personally attended the August 15, 2019 court appearance. J.J.W.’s legal counsel, Ms. Megan Olson attended court on his behalf. At the outset of the hearing, Ms. Locke advised the Court that S.J.P. was attending a residential treatment facility and asked to adjourn the Presentation Hearing. Following that request, Ms. Locke asked to be removed as S.J.P.’s counsel of record, which the Court allowed. J.J.W. consented to the Director’s application for interim custody of L.J.C.PW.

As S.J.P. was not present in person or by agent or counsel and in any event unable to resume parenting L.J.C.PW. at the time, the Court ordered L.J.C.PW. remain in the interim care of the Director pursuant to s. 42.1(6)(

a) of the CFCSA (CEIS Document 10). No interim custody order was requested or made with respect to M.N.C.P. The matter was adjourned to the Judicial Case Manager (“JCM”) on August 20, 2019, to fix a date for the commencement of the protection hearing within 45 days of the order. [ 20 ] On September 9, 2019, the Director filed an Application for an Order, Form 2, placing both M.N.C.P. and L.J.C.PW. in the temporary custody of the Director pursuant to s. 42.2(4)(

b) of the CFCSA (CEIS Document 11). Also on September 9, 2019, in support of its application, the Director filed a Court Plan of Care indicating the Director’s plan was to return the children to their parent (CEIS Document 12). [ 21 ] The hearing of Director’s September 9, 2019 application (the “protection hearing”) was scheduled to commence in Smithers Provincial Court on September 27, 2019. Neither S.J.P. nor J.J.W. attended court personally, however, they were represented at that court appearance by counsel.

The matter was adjourned to the JCM to fix a subsequent appearance. [ 22 ] The Director’s September 9, 2019 application (CEIS Documents 11 & 12) came before Judge Doulis on November 20, 2019. Neither parent attended at the hearing, either in person or by legal counsel or by agent. At the request of the Director’s counsel, the matter was adjourned to the JCM who scheduled a case conference on December 9, 2019. The case conference proceeded on that day before Judge Jackson. J.J.W. did not attend in person, however, his legal counsel, Ms. Olson, appeared on his behalf.

S.J.P. attended the case conference by telephone and her legal counsel, Mr. Lawson, appeared in person. The matter did not resolve and was referred to the JCM for a hearing on the Director’s application for a temporary custody order. [ 23 ] On January 17, 2020, S.J.P. filed an application under s. 55 of the CFCSA for access, including overnight access, to her children (CEIS Document 17).

In support of her application S.J.P. filed an Affidavit (CEIS Document 18), in which she says, among other things that: a. she currently resides in [omitted for publication], and has done so most of her life, including at the time the children were removed from her care; b. her only source of income is social assistance; c. because the Director has placed the children in foster homes in [omitted for publication], she seldom gets to see them because she cannot afford the travel costs; d. she has experienced difficulty in communicating with her social worker, Dixie Oaks.

Sometimes it takes two and one-half weeks for S.J.P. to secure a response to messages she has left for Ms. Oaks; e. when she asked Dixie Oaks if the children could spend a weekend with her, Ms.

Oaks said she “could not make that happen”; f. the facilities where S.J.P. exercises supervised access are inappropriate; g. the person the Director appointed to supervise is judgmental of S.J.P. and interferes in S.J.P.’s attempts have meaningful parenting time with the children; and h. she completed the drug and alcohol treatment program at Ormand Lake and she now feels healthy and intends to reside permanently in [omitted for publication]. [ 24 ] On January 21, 2020, the JCM scheduled a two-day hearing of the Director’s September 9, 2020 application for a temporary

custody order (the protection hearing) (CEIS Documents 11 & 12) on March 30 and 31, 2020 in Smithers Provincial Court. [25] On January 21, 2020, the Director filed an application pursuant to Rule 8(12) of the Provincial Court (CFCSA) Rules to transferCFCSA File P-F-18264 to the [omitted for publication] Registry for all purposes (CEIS Document 19). In support of that application theDirector filed the affidavit of social worker Dixie Oaks sworn January 24, 2020 (CEIS Document 24) in which she states: a.

S.J.P. communicated to her that she intends to reside in [omitted for publication] on an ongoing basis, and that she is extremelyreluctant to return to [omitted for publication] for any reason, including court appearances and access visits with the children (para. 5); b. S.J.P. reports she has engaged with services and counselling in both [omitted for publication] and [omitted for publication](para. 8); c. MCFD is investigated placing the children in a foster home in the [omitted for publication] area (para. 9); d.

S.J.P. has requested MCFD to explore placing the children with her extended family in the [omitted for publication] area (para.9); and e. the Director’s plan of care for the children is to work towards their eventual return to S.J.P “The resources and supports thatwill be utilized to work towards this plan are all located in the [omitted for publication] area” (para.11). [26] On January 27, 2020, Mr.

Lawson filed an affidavit of his paralegal (CEIS Document 25), in which she states she contacted theJCM for the [omitted for publication] Provincial Court to inquire as to the availability of a four-day hearing in [omitted for publication],BC. [omitted for publication] is a Prince George circuit court and schedules trials between 3 to 6 days per month and remand daysbetween 1 and 3 days per month.

The JCM was unable to estimate when a four-day CFCEA hearing could proceed until the file wastransferred to [omitted for publication]. [27] S.J.P.’s January 17, 2020 application (CEIS Documents 17 & 18) and the Director’s file transfer application (CEIS Document19) came before Judge Jackson for hearing on January 30, 2020. S.J.P. appeared at the hearing personally and Mr. Lawson appeared asher legal counsel. J.J.W. did not appear personally, however, Ms. D. McConnell did so on his behalf (as agent for Ms. Olson). Theapplications were adjourned to the JCM who

schedule a one day hearing for both applications (combined) on March 20, 2020. [28] On February 12, 2020, Mr. Lawson requisitioned the Court Registry (CEIS Document 26) asking to adjourn generally theMarch 20, 2020 hearing date for S.J.P.’s January 17, 2020 application (CEIS Documents 17 & 18) and the Director’s January 21, 2020file transfer application (CEIS Document 19). [29] I note parenthetically that in British Columbia (Child, Family and Community Service) v. S.M.S., 2020 BCPC 87 ,Judge Dorey held the Court has no jurisdiction to hear an application for access in the absence of an interim custody order.

In this case,there is no such order for M.N.C.P Judge Dorey states: [42] On a plain reading of s. 55 of the Act, it is my opinion that the triggering event for an access application is an “order”, which wouldinclude an interim order under s. 35(2). On the authority of the [LS v. British Columbia (Director of Child Family and CommunityService), 2018 BCSC 255] decision, S.M.S.’s application for further access to the children cannot proceed until either an order or aninterim order is made at the completion of the presentation hearing.

As this Court is a statutory court, the parens patriae power is notavailable to a judge of the Provincial Court, and therefore, I do not have jurisdiction to hear S.M.S.’s access application at this time. [30] The Court adjourned the Director’s September 9, 2020 application for a temporary custody order (CEIS Documents 11 & 12)from the scheduled March 30 and 31, 2020 dates as a result of the COVID-19 pandemic.

Instead, the Court scheduled a pre-trialconference on June 16, 2020. [31] On June 15, 2020, the Director filed a Requisition with the Smithers Court Registry (CEIS Document #29) asking to scheduleinto Court the Director’s January 21, 2020, application (CEIS Document 19) to transfer this CFCSA court file to Prince George Registryfor all purposes. [32] On June 16, 2020, Director’s Counsel, Mr. Lawson, and Ms. Olson attended remotely at a Pre-Trial Conference before JudgeLeven. At that time, Judge Leven granted Ms. Olson’s application to be removed as counsel of record for J.J.W. because she had losttouch with him.

Judge Leven referred the Director’s transfer application (CEIS Document 19) for a hearing on June 25, 2020, inSmithers Provincial Court. [33] On June 19, 2020, the Director filed the affidavit of Celina Moore (CEIS Document 30) in support of this transfer application.Ms. Moore is S.J.P.’s social worker in the [omitted for publication]. Ms. Moore states: a. S.J.P. relocated to [omitted for publication] from [omitted for publication] in August 2019. S.J.P. has never resided in [omittedfor publication] or in any community closer to [omitted for publication] than [omitted for publication]; b.

In [omitted for publication] S.J.P. worked with social worker Maria Mills to access counselling services to address S.J.P.’ssubstance abuse and mental health issues; c. In January 2020, S.J.P. relocated temporarily to [omitted for publication], BC. There, S.J.P. worked with Katelyn Buchner ofthe [omitted for publication] Child and Family Services Society. From February 24, 2020, to March 24, 2020, S.J.P. resided in [omittedfor publication] House, a supportive housing complex for women who are struggling with mental health and/or problematic substanceuse; d.

The Director anticipates its witnesses at the protection hearing will include herself, Maria Mills, Katelyn Buchner, CarolineMuir and R.B.;

e. S.J.P. voiced her desire for alternative legal counsel; f. S.J.P. informed her on multiple occasions she is extremely reluctant to return to [omitted for publication] . She believes that returning to Smithers would be triggering to her and damaging to her recovery. She has said on one occasion she would not return to [omitted for publication] for any reason, albeit she did so for a court appearance in January 2020; g. S.J.P. does not drive and in the past has relied boyfriend for transportation.

S.J.P.’s relationship with her boyfriend is unstable and unreliable and therefore she cannot depend on him to transport her to [omitted for publication]; h. The public transportation between [omitted for publication] and [omitted for publication] is sparse and intermittent. The bus only makes the trip twice per week. There are no commercial flights between [omitted for publication] and [omitted for publication] at this time. In any event, S.J.P. vehemently refuses to travel on public transport; and i. It is difficult for Ms.

Moore to travel to [omitted for publication] from [omitted for publication] to attend the protection hearing in person. [ 34 ] The children continue to be fostered in [omitted for publication] with R.B., an approved MCFD resource. [ 35 ] The Director’s September 9, 2019 application for a three month temporary custody order (CEIS Document 11) remains outstanding and vigorously contested. Counsel anticipate this protection hearing will take three to four days.

THE TRANSFER APPLICATION [ 36 ] The Director seeks an order pursuant to Rule 8(12) of the Provincial Court (CFCSA) Rules to transfer the court file to Prince George for all purposes. In its application filed on January 21, 2020 (CEIS Document 19), the Director initially sought an order transferring the file to the [omitted for publication] Court Registry, as S.J.P. was residing in [omitted for publication] at the time. Since then, S.J.P. has moved to [omitted for publication], BC, and the Director now seeks to transfer this CFCSA file to the Prince George Court Registry.

LEGISLATIVE FRAMEWORK [ 37 ] Rule 8(12) of the Provincial Court ( CFCSA ) Rules provides:

(12) A judge may order a file transferred to another registry, for the purposes of one application or for all purposes, after considering (

a) the balance of convenience, (

b) any special circumstances that exist, and (

c) the best interests of the child. [ 38 ] The Director submits the above criteria militate in favour of transferring the court file to Prince George. It would be difficult, inconvenient, and possibly harmful to

schedule a three to four day protection hearing in Smithers Provincial Court. All but two of the Director’s witnesses live and work in [omitted for publication] or [omitted for publication]. (

a) The balance of convenience Director’s Position [ 39 ] The Director argues the balance of convenience strongly favours the file being transferred to Prince George for all purposes because: a. S.J.P. has resided in [omitted for publication] for the past six months, and intends to continue to do so. She has no connection with [omitted for publication] and no intention of relocating to that community; b. S.J.P. has repeatedly stated that she is either extremely reluctant or would refuse to travel to [omitted for publication] for any reason, even for court appearances or access visits with her children.

She believes it would be harmful to her recovery and upsetting for her to come to [omitted for publication]; c. S.J.P. does not have the means to travel to [omitted for publication]. Currently, public transportation between [omitted for publication] and [omitted for publication] is infrequent and does not synchronize with the court’s schedule. In addition, S.J.P. has stated that she refuses to take public transportation of any kind.

Absent a significant change in circumstances, or extraordinary measures being taken, S.J.P. would be unable to attend the protection hearing or any other court proceedings if they occurred in Smithers; d. From June 2019, to January 2020, S.J.P. resided in her home community of [omitted for publication]. During that time, she worked with [omitted for publication] MCFD social workers, Celina Moore and Lynda Mills, and made limited attempts to access services in [omitted for publication]. The Director expects to call Ms. Moore and Ms. Mills as witnesses at the hearing of this matter.

The Director may also call as witnesses counsellors or other support persons who worked with S.J.P. when she resided in [omitted for publication]. It is considerably more convenient for these witnesses to travel from [omitted for publication] to Prince George for the hearing than to Smithers; e. Since January 2020, S.J.P. has resided in [omitted for publication]. There she has continued to work with Celina Moore, her [omitted for publication] social worker. She has also worked with Katelynn Buchner, a social worker with the [omitted for publication] Child and Family Services in Prince George. Much of Ms.

Moore and Ms. Buchner’s work focused on connecting S.J.P. with counsellors and other supports with regard to her mental health and substance abuse issues. At the hearing of this matter the Director expects to call

Ms. Buchner as a witness. The Director also expects to call any [omitted for publication] counsellors or other supports with whom S.J.P.engaged to a marked degree. It would be extremely inconvenient and disruptive for these witnesses to travel to [omitted for publication]for the hearing, as compared to [omitted for publication], where they live and reside; f. From February to March 2020, S.J.P. resided in [omitted for publication]at [omitted for publication] House, a supportivehousing facility for women struggling with mental health and substance abuse issues.

S.J.P. worked directly with Maria Brouwer, themanager of [omitted for publication] House. Ms. Brouwer has had significant direct contact with S.J.P. and the Director intends to callMs. Brouwer as a witness at the protection hearing. It would be extremely inconvenient and disruptive for Ms. Brouwer to travel to[omitted for publication] for the hearing, as compared to [omitted for publication], where she lives and resides; g.

The central issue at the protection hearing will be whether or not S.J.P. has addressed her mental health, substance abuse, andhomelessness issues such that she could resume care of her children. All of the evidence regarding that central issue that will be adducedby the Director and by S.J.P., will come through witnesses who work and reside in [omitted for publication] or the surroundingcommunities; h. The only witnesses that the Director may call who reside in Smithers are Caroline Muir, a team Leader at the Smithers MCFDoffice, and R.B., the foster parent for the children.

R.B.’s evidence will largely focus on the children, and as a result her evidence will belargely unopposed (as S.J.P. has had almost no direct access with the children since their removal). Because of this her evidence wouldbe appropriate to be provided, at least in part, by way of affidavit, or via a video link. Ms.

Muir’s evidence will relate to SmithersMCFD’s interactions with S.J.P., which have been quite infrequent since S.J.P. relocated to [omitted for publication] in the summer of2019, and much of her evidence will come from MCFD records, which would also make her evidence suitable to be adduced by way ofaffidavit, or through a video link; i. J.J.W. has had minimal involvement in the court matters involving the children. At the last court appearance on June 16, 2020,Ms. Olson withdrew as J.J.W.’s legal counsel of record because she had not had any contact with him for quite some time and did nothave instructions.

It does not appear that J.J.W. will attend the hearing or call any evidence. If this is the case, then where the hearingoccurs makes no difference to J.J.W.’s convenience or interests. [40] Mr. Yuen argues what is not significantly relevant to the balance of convenience test is the impact transferring the file on legalcounsel. He argues travel to court is part of a lawyer’s professional responsibilities, and counsel are paid for their court travel andaccommodation.

Moreover, if this file is transferred to Prince George, the Director’s case would be handled by Prince George counsel.The Director concedes it is possible that S.J.P. may also have to change lawyers and retain Prince George counsel. S.J.P.’s Position [41] S.J.P. strongly opposes the Director’s application to transfer this CFCSA file from the Smithers to the Prince George or [omittedfor publication] courts.

Although S.J.P. has not provided an affidavit in this application, her counsel argues transferring the file willengender further delays in having the Court adjudicate the Director’s application for temporary custody of the children. In response tothe Director’s submissions, Mr. Lawson states: a. S.J.P. has instructed him she has no reluctance or opposition whatsoever to come to Smithers to attend the protection hearing ofthis matter.

In fact, she travelled to Smithers on January 30, 2020, for the initial hearing of this transfer application (CEIS Document 19)and her application for increased access (CEIS Documents 17 & 18); b. Mr. Lawson spoke with S.J.P. in February 2020 and she has assured him she will travel to Smithers if necessary to participate inthe protection hearing; c. S.J.P.’s impecuniosity is not an impediment to her travelling to Smithers to attend the hearing because the Director pays theparents’ travel and accommodation costs to attend an out-of-town CFCSA hearing; d.

S.J.P. could also attend the protection hearing in whole or in part remotely, by video link, or by telephone; e. There is no reason why all of the Director’s witnesses in [omitted for publication] and [omitted for publication] need to appearin person at the protection hearing. It is just as convenient for the [omitted for publication] witnesses to attend in person and the out-of-town witnesses provide their evidence remotely; f. Mr. Lawson’s retainer does not extend to out-of-town travel.

S.J.P. would have to obtain new counsel if the file were to betransferred to Prince George, which will most certainly create delay; and g. Transferring the file will necessitate a change in Director’s counsel which will most likely create further delay. Conclusion on Balance of Convenience [42] S.J.P. is a vulnerable indigenous woman with a history of mental illness, substance misuse, and homelessness. The Directorremoved the children from her and J.J.W.’s care over a year ago.

The Director’s witnesses are principally professional witness whosestake in the outcome of these proceedings pales to that of S.J.P., J.J.W., and the children. In my view, changing legal counsel is likely farmore difficult for S.J.P. than it is for the Director. [43] The collateral consequence of transferring this CFCSA file to Prince George is to potentially interfere with S.J.P.’s opportunityto be represented by her counsel of choice. I am not prepared to give weight to Ms.

Moore’s hearsay evidence S.J.P. told her she wantednew counsel. [44] In both criminal and civil matters, the court recognizes a litigant’s right to counsel of choice. In R. v. Murphy, 2015 YKCA 10, in the context of a criminal trial, the Yukon Court of Appeal noted,

Absent compelling reasons, such as a disqualifying conflict of interest or incompetence, the courts will not interfere with anaccused’s choice of counsel.

Further, the courts will avoid actions that result in accused persons being improperly or unfairly denied theopportunity to be represented by their counsel of choice . . . [Citations Omitted] [45] In Director of Child Family and Community Service and T.T., 2008 BCPC 114 , Judge Pothecary stated: [28] The relationship between solicitor and client is one that the courts must respect providing that it does not violate either the law orthe rules of professional conduct.

Freedom of choice of counsel is a very important principle at both common law and, inferentially,under the Charter of Rights and Freedoms, that must not lightly be interfered with . . . [46] In Windsor Essex Children’s Aid Society v. D.(B.), 2013 ONCJ 43, at para. 13, the Ontario Court of Justice held (at para. 13)[citations omitted]: [13] A court should not lightly prevent a litigant from choosing counsel. . . It is a fundamental principle that a litigant's choice ofcounsel should only be infringed in clear cases. [47] Mr.

Lawson not only consents, but advocates the Director’s out-of-town witnesses provide their evidence at the protectionhearing remotely. This may be by affidavit, audio or video conference, or a combination thereof. It is difficult to see how proceeding inthis manner is prejudicial to the Director’s case. Typically, at the outset of a CFCSA hearing, Director’s counsel provides the court with acomprehensive evidence book which is fully indexed, tabbed and paginated.

This diligence greatly assists the court, counsel andwitnesses who testify in person or remotely. [48] I gather J.J.W. continues to reside in [omitted for publication], which is in the Smithers MCFD catchment area. Although he losttouch with his legal counsel, J.J.W. does surface periodically in these proceedings. I am not prepared at this time to dismiss thepossibility he will want to attend at or participate in the protection hearing. [49] I am not convinced the balance of convenience strongly favours a hearing in Prince George over Smithers.

The Director haswitnesses who work and reside in [omitted for publication], [omitted for publication] or [omitted for publication]. S.J.P. is adamant theprotection hearing proceed in Smithers so she can continue to have Mr. Lawson represent her. Mr. Lawson is S.J.P.’s legal counsel andagent. He says she is prepared to travel to Smithers to attend the protection hearing. Although Ms. Oaks and Ms. Moore have providedaffidavits indicating otherwise, I do not think it appropriate for the Court to engage in a credibility assessment on this point. Mr.

Lawsonis experienced legal counsel who is an officer of the court and owes a professional duty of honesty and a duty not to mislead the court.He says S.J.P. assures him she will travel to Smithers to attend the protection hearing and I accept that is true. I have no reason to believethat in opposing the Director’s file transfer application, Mr. Lawson has not taken into consideration the downside of that strategy. In myview S.J.P.’s choice to have Mr. Lawson represent her in these proceedings militate toward keeping the CFCSA file in the Smithers. (

b) any special circumstances that might exist Director’s Position [50] The Director identifies two special circumstances relevant to its file transfer application: a. S.J.P. and the children were only briefly residing in the [omitted for publication] catchment area when the supervision orderwas made, and when the children were removed. This is the reason the Director commenced the CFCSA proceedings in Smithers, despiteS.J.P. having no connection to Smithers.

The Director submits: The court file is only currently in Smithers due to a freak confluence of circumstances, rather than any real or substantial connectionbetween Smithers and S.J.P. or the children; b. The court imposed new processes in response to the COVID-19 pandemic. Of all the CFCSA hearings that are or werescheduled to be heard between March and July in Prince Rupert, Terrace, Kitimat, Dease Lake, Stewart, Hazelton, Smithers, and BurnsLake, only one remains, and the Director expected that those hearing dates are about to be adjourned also. The Provincial Court is onlystarting to

schedule in-person hearings again. Of all the hearings adjourned in the Northwest, none have any new hearing datesscheduled. [51] Mr. Yuen concedes that he does not know if transferring the file to Prince George would result in this matter being heardsooner than if it remained in Smithers, but he does know there are no CFCSA hearings proceeding in Northwest British Columbia. PrinceGeorge has more and larger courtrooms and significantly more space to facilitate physical distancing than the Smithers court house. S.J.P.’s Position [52] Mr.

Lawson says the children are toddlers and therefore their connection to a particular community is not a factor this Courtneed consider. As to Prince George’s increased resources, there is simply no evidence the protection hearing could proceed sooner therethan in Smithers. A hearing date at either locale is best secured by arranging for witnesses to provide their evidence remotely whereappropriate. [53] The Court Services Branch acknowledges its obligation to mitigate the risks of transmission of COVID-19 in the courts throughphysical distancing. Mr.

Lawson points out that the Smithers Supreme Court is facilitating in-person hearings in Courtroom 159, whichis larger than the Provincial Courtroom 153. Mr. Lawson submits that if an in-person hearing is deemed necessary and cannot beaccommodated in Courtroom 153, then the JCM should

schedule the protection hearing of this matter in Courtroom 159. [54] Mr. Lawson also decries the priority this Court gives to in-custody criminal matters over child protection matters. He describeschildren who have been apprehended by MFCD as “in jail” in the foster care system.

Conclusion on the special circumstances [55] I do not agree with the Director that the fact the children were coincidentally removed from their parents’ care in [omitted forpublication] constitutes a special circumstance. When MCFD social workers first became involved in their family, S.J.P. and J.J.W. livedtogether in [omitted for publication], which is within the Smithers MCFD catchment area. The supervision order required S.J.P. to resideat the [omitted for publication] House while in [omitted for publication] accessing services. In her affidavit Ms.

Oaks indicates S.J.P.engaged in counselling with Amy Stokes from the Northern Society for Domestic Peace. Moreover, Ms. Moore states in her affidavit thatshe understood S.J.P. to have moved to [omitted for publication] in August 2019, which is after the children had been removed. [56] I do agree the COVID-19 pandemic and its impact on court operations is a “special circumstance.” On March 18, 2020, the BCgovernment issued Ministerial Order No. M073 by which it declared a state of emergency under s. 9 of the Emergency Program Act,R.S.B.C., 1996, c. 111 arising from the COVID-19 pandemic.

On March 19, 2020, Chief Judge Gillespie suspended regular operationsof the Provincial Court of British Columbia at all of its locations to protect the health and safety of court users and to help contain thespread of COVID-19. In her Notice to the Profession and the Public of March 19, 2020 (updated March 23, 2020), Chief Judge Gillespieannounced all family law trials (which include CFCSA matters) currently scheduled between March 18 and May 16, 2020 wereadjourned unless urgent.

The Notice clearly states that in child protection matters, “all statutorily mandated matters, including the initialpresentation hearing and the protection hearing, are urgent hearings and will proceed on the day they are scheduled by telephone.” Oneof the parties in a proceeding needed to file an Application for Urgent hearing. If the application’s judge determined the matter wasurgent, it was heard by telephone.

Neither counsel in this case filed an Application for Urgent Hearing and the March 30 and 31, 2020hearing dates were ultimately adjourned as a matter of course to a Pre-Trial Conference on June 16, 2020. [57] On June 8, 2020, the Provincial Court resumed in-person proceedings for priority matters that could not be accommodatedremotely on a staged and incremental basis. On that day, the Provincial Court resumed in-person proceedings Prince George, on June 15,2020, the Provincial Court resumed in-person proceedings in Smithers.

The Provincial Courtroom 153 in Smithers requires some re-configuration to accommodate physical distancing. It is limited in the number of people it can accommodate. The Supreme Courtroom159 is larger and presumably can accommodate more people. However, Courtroom 159 is dedicated to Supreme Court matters. If ithappens to be vacant when the Provincial Court has some overflow, the Manager of the Supreme Court Scheduling will often consent toits use. The JCM, however, cannot

schedule a Provincial Court matter in Courtroom 159 more than a few days in advance when itbecomes clear is not required for Supreme Court matters. The Supreme and Provincial courtrooms in Smithers are dedicated courtroomsand not interchangeable. [58] As to Mr. Lawson’s concern about the priority of matters heard during the COVID-19 Pandemic, CFCSA matters have thesame equality in scheduling as criminal matters. The court and the Office of the Chief Judge recognize that a CFCSA protection hearing,by its nature, is urgent: see British Columbia (Child, Family and Community Service) v.

M.N., 2020 BCPC 66 , at para. 25. [59] I do not share Mr. Lawson’s dystopian vision of children in foster care as incarcerated. I do agree, however, that minimizingtheir time in the Director’s care is not only statutorily mandated, it is critical for young children who form familial attachments very earlyin their life. [60] If the Director’s application for a temporary custody order (CEIS Document 11), could be heard sooner in Prince George thanin Smithers, this factor would militate toward transferring this CFCSA file to the Prince George.

Certainly the Prince George Court hasfar more and larger courtrooms than Smithers. However, it also has multiple circuit courts and often a crushing workload. Having saidthat, I understand from the JCM the Provincial Court may be able to

schedule a four day CFCSA hearing in either Smithers or PrinceGeorge in July or August, provided COVID-19 physical distancing protocols can be maintained. (

c) the best interests of the children [61]

Section 4 of the CFCSA lists seven factors relevant to a child’s best interest: Best interests of 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 thechild'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 followingfactors 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.

[ 62 ] Many of those factors enumerated in s. 4 of the CFCSA are relevant in varying degrees in this application, the most important of which is 4(1)(g), “the effect on the child if there is delay in making a decision.” Position of the Director [ 63 ] The Director contends that where the court file is located, and where the protection hearing occurs has no impact on the children’s best interests. They are far too young to participate, or even have awareness of these legal proceedings.

What is relevant is which venue can facilitate a timely hearing of the Director’s September 9, 2019 application for a temporary custody order. The Director submits what limited information we have on this point suggests that transferring the file to Prince George would expedite the hearing. Mr. Yuen argues the only bearing the location of the court file would have on the children’s best interests is if holding the protection hearing in Prince George or Smithers would result in a greater or lesser likelihood of the children being returned to their mother.

He argues that it should make no difference how the court views the evidence and applies the law wherever the hearing is held in the province. He goes on to say: However, I suggest that given this hearing will hinge on an assessment of S.J.P.’s stability and capacity that holding the hearing in the location that best allows her to display those traits would increase the likelihood of S.J.P. resuming care of her children, and this strongly militates for holding the hearing in Prince George.

Given an assessment of S.J.P.’s stability and credibility is key in the protection hearing, it is critical S.J.P. present her best self to the Court at the protection hearing. Allowing the hearing to proceed where S.J.P. resides will minimize the stress and anxiety beyond attendant upon participating in a hearing far from home. [ 64 ] Mr.

Yuen argues: If the hearing occurs in Smithers, this will mean that on top of the stresses and anxiety of participating in a hearing, S.J.P. will have to deal with the anxieties of: • Travelling to and staying in a place she has an extreme antipathy for, somewhere she believes is triggering to her and that is harmful to her recovery; • Taking public transportation, something she also has an extreme antipathy towards, or dealing with the stresses of arranging other means of transportation to allow her to travel to Smithers for court; • Being cut off from her supports and other services for the duration of the hearing; • Residing in a hotel or other unfamiliar environment for the duration of the hearing; • Possibly having to repeat the process, with all of its attendant stressors, if the hearing goes longer than scheduled and requires a continuation.

These circumstances will make it more difficult for S.J.P. to present her best self to the Court at the protection hearing. These stressors could negatively impact her testimony and behaviour at the hearing, which would negatively impact the likelihood of a return.

In comparison, if the hearing occurs in Prince George, while it will still be a difficult experience for S.J.P., during that hearing she will at least be residing in her home, she will have no difficulty travelling to and from court, she will spend each night of the hearing in her own bed, and she will have access to her regular counsellors, services and support persons during the hearing.

It would be a significantly less upsetting experience for S.J.P. than if the hearing occurred in Smithers, and as a result, she would presumably present better in the courtroom and on the stand, which could increase the chances of her resuming care of her children at the end of the hearing. S.J.P.’s Position [ 65 ] Mr. Lawson submits the overriding factor in this application is securing a timely protection hearing. He was optimistic that had the hearing proceeded as scheduled on March 30 and 31, 2020, the children would already be back in S.J.P.’s care.

We are now at the end of June and there is no hearing in sight. Analysis on the “best interests of the child” [ 66 ]

Section 2 provides, in part: Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance 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 rests primarily 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. [ 67 ] L.J.C.PW. was placed in the interim care of the Director pursuant to s. 42.1(6)(

a) of the CFCSA .

Section 42.1(7)(

a) states:

(7) When an interim order is made under subsection (6), the court must set a date, not more than 45 days after the conclusion of the presentation hearing, for a hearing to determine if the child was removed in accordance with

section 42 . [ 68 ] M.N.C.P. was removed from her parents’ care on at the same time as L.J.C.PW. (June 26, 2019). M.N.C.P. was not subject of a supervision order because at the time these orders were made (May 16, 2019 and June 13, 2019), she living with K.M. under a Voluntary Care Agreement. [ 69 ] The Director has not yet obtained an interim custody order for M.N.C.P. who was removed from her parents’ care at the same time as L.J.C.PW. (June 26, 2019). Once a child is removed under s. 30 of the CFCSA , the Director has seven days after removal to attend Court for a presentation hearing.

At the August 15, 2019 presentation hearing, the Director ultimately sought and received an interim custody order for only L.J.C.PW. Conclusion on Best Interests of the Children [ 70 ] The paramount ‘best interests’ factor in this application is to have decisions relating to the children made and implemented in a timely manner. In my view this CFCSA file ought to be housed in the court which can best facilitate this overarching objective. At present a protection hearing could proceed in July or August 2020, in either Smithers or Prince George.

CONCLUSION ON THE DIRECTOR’S TRANSFER APPLICATION [ 71 ] S.J.P. asks the CFCSA file remain in Smithers and has compelling reasons for doing so. Through her legal counsel S.J.P. has assured the court she will travel to Smithers to appear personally at the protection hearing if need be. At this juncture I find that: a. The balance of convenience does not overwhelmingly favour the matter being heard in Prince George over Smithers; b. The special circumstances that exist do not strongly indicate the matter ought to be heard in Prince George as opposed to Smithers; and c.

The children’s best interests would be better served by the matter being heard in a timely matter. At this point it seems that either Prince George or Smithers could facilitate a protection hearing in the next two months. If this CFCSA file were to remain in Smithers than neither party would need to change legal counsel. [ 72 ] Accordingly, I am dismissing the Director’s application to transfer this CFCSA file to Prince George with leave to renew it in the future should circumstances change. ___________________________ Honourable Judge J.T.

Doulis Provincial Court of British Columbia CORRIGENDUM – Released July 6, 2020 [1] In the Ruling on Application dated June 30, 2020: a. the last alphabetical bullet under paragraph 23 is corrected from “a” to read “h”; b. The word “carse” in paragraph 67 is corrected to read “care”. ___________________________ Honourable Judge J.T. Doulis Provincial Court of British Columbia