Director and R., 2022 BCPC 15

Citation: Director and R. 2022 BCPC 15 Date: 20220128 File No: 18307 Registry: [omitted for publication] 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: K.D.M.R., born [omitted for publication] T.D.R., born [omitted for publication] T.C., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.H. PARENT AND: S.R. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. PHILLIPS Counsel for the Director: C. Martin Counsel for the Parent, D.H.: N. Johnson Counsel for the Grandparent, S.V.: K. Carter

Place of Hearing: Kamloops, B.C. Date of Hearing: December 13, 2021 Date of Judgment: January 28, 2022 Introduction: [ 1 ] This is the application of S.V. to be added as a party to CFCSA File No. 18307. Background: [ 2 ] The Applicant is the maternal grandmother of the children K.D.M.R., born [omitted for publication]; T.D.R., born [omitted for publication] and T.C., born [omitted for publication]. All children are Indigenous and members of the [omitted for publication] Band. [ 3 ] The father of the children K.D.M.R. and T.D.R. is Indigenous and resides in [omitted for publication], Saskatchewan.

I understand the father of T.C. is Indigenous and resides in the [omitted for publication] community. The father of K.D.M.R. and T.D.R. has participated minimally in these proceedings while the father of T.C. has not. [ 4 ] In [omitted for publication], the parents struggled with alcohol and substance abuse. This resulted in an intervention by the [omitted for publication] Indian Band, who facilitated an agreement between the children’s mother, D.H., the Band and the Applicant.

This agreement allowed for the children to relocate from [omitted for publication], Saskatchewan to [omitted for publication], British Columbia to reside with the Applicant as a caregiver. In furtherance of the agreement, the children’s great aunt drove the children from Saskatchewan to [omitted for publication], arriving April 8, 2021. [ 5 ] Within four days of arriving in [omitted for publication], the child, K.D.M.R., was removed from the care of the Applicant. The child, T.D.R., remained in the care of the Applicant under an approved safety plan.

As I understand the circumstances surrounding the Director’s decision to remove the child K.D.M.R. from the Applicant’s care, a dispute arose out of Applicant’s discovery and confiscation of marijuana in the child’s belongings. It appears from social worker accounts that K.D.M.R. had “extensive knowledge about drugs (for a 9 year old girl) of multiple varieties, including how to consume them and disclosed seeing people do bumps and lines of cocaine and exchange money for drugs.” From information provided by the Director to the court, the father was an alcoholic and did not provide adequate care for the children.

The mother, Ms. H., was in recovery from drug addiction and did not have a stable home. The Director struggled in the beginning of these proceedings to locate Ms. H. The child, T.D.R. was left in the care of the Applicant because he felt safe with his Kookum (grandmother). Initially, there was some reluctance by the Applicant to allow social workers to interview T.D.R. however, as things settled, access was granted. [ 6 ] The children, T.D.R. and T.C., reside with their mother, Ms. H. under a supervision agreement. Ms. H. has relocated to Abbotsford with the children.

The Director has recently applied to have the Director’s file transferred from Kamloops to Abbotsford. [ 7 ] The child, K.D.M.R., remains in the Director’s care pursuant to a temporary custody order and resides in a foster home in Kamloops. [ 8 ] Upon review of court

summary sheet, the first appearance was April 19, 2021. For the period April 19, 2021 to December 13, 2021, the Applicant appeared 16 times with counsel. The style of proceeding in each court

summary sheet lists the Applicant as a party. From the first appearance date to June 2021, the Director listed the Applicant as a parent of the children. At the June 23, 2021 appearance, the Director was permitted to serve the mother, Ms. H. by delivering the documents to the Applicant. By the October 19, 2021 appearance, the Director removed the Applicant as a listed parent.

Despite being removed by the Director as a parent, the Applicant continues to appear with counsel. [ 9 ] On July 12, 2021, with the assistance of legal counsel, the Applicant filed an application for an Order to be made a party per s. 39(4) of the Child Family Community Services Act (CFCSA). [ 10 ] On December 13, 2021, the Director and the Applicant provided submissions on whether the Applicant ought to be added as a party. Position of Parties [ 11 ] The Director opposes the Applicant being a party. The Director submits that Applicant is not a guardian and has not applied to be a guardian of either child.

The Director further submits that the Applicant does not meet the threshold criteria in s. 39(4) allowing the court to exercise its discretion to add the Applicant as a party. Specifically, the Director submits that adding the Applicant as a party is not demanded for the proper resolution of the issues under consideration. The Director further submits that adding the Applicant as a party will cause delay and if allowed, will give the Applicant, a non-parent, access to the Director’s files, which hold confidential and private information about the children and parents. [ 12 ] Counsel for Ms.

H. the mother, takes the positon that the Applicant is a stranger to children and has limited involvement in the children’s lives. Since these proceedings have commenced, the relationship between the Applicant and Ms. H. has deteriorated. Ms. H. is working with the Director to have the children with her. Counsel for Ms.

H. submits that expediency and the timely resolution of matters is paramount and that adding the Applicant as a party, will only complicate matters. [ 13 ] Counsel for the Applicant submits that the Applicant ought to be added as a party per s. 39(4) of the CFCSA and that the court may consider the newly enacted First Nations, Inuit, Metis Children, Youth and Families (ARFNIM) which is federal legislation that came into effect January 1, 2020, as additional support for the Applicant’s position that she be added as a party.

Counsel for the Applicant submits that the Applicant meets the definition of “care provider” in ARFNIM and therefore, as a grandmother of an Indigenous child who also provided care for the Indigenous child, on the direction of the Band by agreement with the mother, has a legal right to be added as party. Counsel for the Applicant submits further that the Applicant has actively participated all of the proceedings

with the assistance of counsel. In some respects, the Applicant seeks to be proactive in the sense that, the mother, Ms. H. has struggledwith drug addiction in the past, the father is an alcoholic and his lack of care led to the children having to relocate from their homecommunity and be found in the care of the Director.

The CFCSA and ARFNIM [14] Section 39(1) of the CFCSA limits those who are entitled to be parties as the parents, the Director and the Band. (J.L. v BritishColumbia (Director of Child, Family & Community Service Act), 2001 BCSC 1604 , 2001 B.C.S.C. 1604, at para 10). [15] As well, per s. 39(3) of the CFCSA, if someone other than a parent or the Director is to be given custody of the child, that personcan become a party at the hearing that makes the order. [16] Section 39(4) of the CFCSA is discretionary.

In exercising its discretion, the court must consider the stage of the proceedings andwhether it is appropriate for a person to be added in the circumstances of the case, along with whether it is in the best interests of thechild. (see: B.C. (Child, Family and Community Services) v. M.C.W., 2020 B.C.J. No. 1116). As well, the discretion to add parties shouldbe used sparingly, and only if the matter demands it for the proper resolution of the issues. (see: J.L. v.

British Columbia (Child, Familyand Community Service Act), 2001 BCSC 1604 , 2001 B.C.S.C. 1604). [17] In addition to the best interest of the child considerations listed in s. 4(1)(a-

g) of the CFCSA, where the child is an Indigenouschild, s. 4(2) requires the court to specifically consider:

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

b) the importance of the child belonging to the child’s Indigenous community. [18] The CFCSA was last amended by Bill 26 in June 2018. In regards to Indigenous children, the amendments affirm that Indigenouschildren are entitled to “learn about and practice their Indigenous traditions, customs and languages, and belong to their Indigenouscommunities”. One of the substantive changes was to include the children’s Band as a party at all stages of the proceedings. [19] The ARFNIM is relatively new federal legislation directed at Indigenous children and families. From the

preamble, the Federalgovernment commits to implementing the United Nations Declaration on the Rights of Indigenous Peoples; recognizes the legacy ofresident schools and the harm, including intergenerational trauma, caused to Indigenous peoples by colonial practices; and breathes lifeinto the Truth and Reconciliation Commissions call to action for all governments to work together with respect to the welfare ofIndigenous children by enacting federal legislation that establishes national standards for the welfare of Indigenous children. [emphasismine] [20] From the facts of the case before me, it is clearly evident that the [omitted for publication] First Nation placed the children withthe Applicant, their grandmother through a formal agreement, while the parents dealt with addiction issues.

Application of ARFNIM to CFCSA Matters [21] There are a number of recent decisions in British Columbia where ARFNIM has been held to apply to CFCSA matters. In FirstNation A. v A.B., [2020] B.C.J. No. 2279 at paragraph 53, my sister Judge L. Smith applied ARFNIM to permit a Band to submit theviews and preferences of an Indigenous group to be included in an order made under s. 41(1)(

d) of the CFCSA, when not recommendedby the Director of Child and Family Services. At paragraph 54 of her decision, Judge L.

Smith states: 54 Finally, as discussed below in relation to the impact of the Federal Act on the current application, I have concluded that the FederalAct provides this court with jurisdiction additional to that of the CFCSA; consequently, if I am wrong and have no remaining jurisdictionunder the CFCSA, I am satisfied that I have jurisdiction to consider the Nation's application under the Federal Act, and to make the ordersought, if appropriate under that legislation. [22] In another decision, my brother, Judge Patterson, in Director of Child, Family and Community Service v.

A.D.R, [2021] B.C.J.No. 1580, granted a father’s application to adjourn the protection hearing and applied ARFNIM to support his decision for the children toreside in the temporary care of their aunt until the Protection Hearing is settled on its Merits.

At paragraph 46, Judge Patterson adoptsthe analysis and conclusion of Judge Smith on the application of ARFNIM in First Nation A. v A.B. (supra) and at paragraph 54, JudgePaterson applies ARFNIM to the matter before him as follows: [54] When I look at the provisions of the CFCSA combined with sections 9, 10 and 16 of the ARFNIM, the primary consideration forthe court remains the best interest of the Child. In reaching my decision in the present case, I have paid particular attention to and appliedeach of the factors enumerated in s. 10(3) of the ARFNIM. [23] In both the First Nation A v A.B. and Director v.

A.D.R decisions, there is a practical context in which Provincial Courts ofBritish Columbia may apply ARFNIM to CFCSA matters. This has to do with the simple fact that it is the Provincial Court that hears“most if not all child protection cases at first instance” and it is the “Provincial Court that will, for the most part, be interpreting andadministering the Federal Act [ARFNIM], in relation to Indigenous children and child protection issues.” (see para 78 of First Nation A.v. A.B.).

This practical approach to jurisdiction of the Provincial Court to apply ARFNIM is addressed in paragraph 79 and 80 of FirstNation A. v. A.B. where Judge Smith states: 79 Unlike a superior court, this court does not have inherent jurisdiction, nor does it have parens patriae jurisdiction; see: S. v. S., 2004BCPC 354.

Consequently, if a Provincial Court judge finds that in interpreting and administering the Federal Act (as required by section9), an order should be made in relation to an Indigenous child, if that order is not authorized by the CFCSA or Rules, the jurisdiction tomake the order must come from the Federal Act. Unless the Federal Act confers such power to the Provincial Court, the ProvincialCourt judge would have no means by which to administer the Federal Act as mandated by the provisions of that statute.

80 If, in interpreting and administering the Federal Act , a Provincial Court judge concluded that an Indigenous child's best interests under

section 10 of the Federal Act required that a step be taken - which step was not authorized by the CFCSA or Rules - the court's ability to administer the Federal Act in accordance with

section 9 would be stymied, absent jurisdiction conferred by the Federal Act upon the inferior court to order the requisite step. A Provincial Court judge's having no jurisdiction to make orders necessary to administer the Federal Act as prescribed could not have been intended and supports the conclusion that the Federal Act confers jurisdiction to this court in certain circumstances in relation to Indigenous children. [ 24 ] More recently, parliament passed Bill 29 2021

Interpretation Amendment Act, 2021 , coming into force and effect November 25, 2021.

Section 8.1(1)(2)(3) of Bill 29 states: 1. The

Interpretation Act, R.S.B.C 1996, c. 238 is amended by adding the following section: 8.1

(1) In this section: “Declaration” has the same meaning as the Declaration on the Rights of Indigenous Peoples Act (UNDRIP); “Indigenous peoples” has the same meaning as the Declaration on the Rights of Indigenous Peoples Act; “regulation” has the same meaning as in the Regulations Act

(2) For certainty, every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by

section 35 of the Constitution Act,1982 (3 ) Every Act and regulation must be construed as being consistent with the Declaration. [ 25 ] I adopt the analysis of my fellow judges, Smith and Patterson in relation to the application of the ARFNIM to CFCSA matters involving Indigenous children and their respective conclusions that Provincial Courts have jurisdiction in certain circumstances to apply the terms of ARFNIM to CFCSA matters, particularly where the CFCSA fall short or is silent. [ 26 ] Accordingly, I am of the view that ARFNIM may be applied to the case before me as a means to resolve the issue of whether the Applicant, grandmother may be added as a party to these proceedings. [ 27 ] The definition

section of ARFNIM defines a care provider as follows: 1. “care provider” means a person who has primary responsibility for providing the day-to-day care of an Indigenous child, other than the child’s parent, including in accordance with the customs or traditions of the Indigenous group, community or people to which the child belongs. [ 28 ] In regards to party status, s. 13 of ARFNIM states: Representations and party status 13 In the context of a civil proceeding in respect of the provision of child and family services in relation to an Indigenous child, (

a) the child’s parent and the care provider have the right to make representations and to have party status; [ 29 ] Both the CFCSA and ARFNIM require decisions to be made in the best interest of the children with the first consideration being the child’s safety, security and well-being however, s. 10(3) of ARFNIM has a more expansive list of considerations that clearly focuses on the cultural continuity for the child and connection to his or her Indigenous Group, with eight factors which must be considered. 10(3) To determine the best interest 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 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; (

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 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. Analysis

[30] The children, parents and Applicant are Indigenous. The [omitted for publication] Indian Band exercised its jurisdiction when theBand decided that it was in the children’s best interest to move from the [omitted for publication] community in Saskatchewan, to[omitted for publication], British Columbia to reside with and be cared for by their grandmother. One of the children was removed fromthe grandmother within a week of arriving while the other child remained in the grandmother’s care.

I understand the child that wasremoved was the result of a dispute between the grandmother and that child, where the grandparent was not happy with the child’s use orpotential use of Cannabis. [31] As the matter proceeded, the mother and grandmother failed to see eye to eye on the future care of the children and are now atodds. The children remain in the care of the Director, however the Director is supporting the return of the children to the mother undersupervision.

I understand through the Director that the mother has taken long strides in addressing her underlying addiction issues andhas taken advantage of supports provided by the Director. [32] I also understand that while the Applicant supports the mother’s positive steps, she remains concerned about the possibility ofthe mother relapsing and the children going back into care.

As I understand the Applicant’s position, her desire to be a party to theseproceedings not only upholds the Band’s wishes per the original agreement and directions, being a party will ensure that if there are anyissues down the road which require the Director’s involvement, the children will always be welcome to her home and the Director willhave an alternative, should the mother or father, fall back into old habits. [33] While both children were placed in the Applicant’s care by the Band as an exercise of their authority and jurisdiction, one of thechildren were removed within a week.

This left one of the children in the Applicant’s care however, this also changed. Therefore, it canbe said that the children were only in the Applicant’s care temporarily. I disagree with counsel for Ms.

H.’s description of the Applicantas that of a “temporary baby sitter” as it diminishes the intent and directions of the Band and the role of an Indigenous grandmother. [34] The Director’s concern with the Applicant’s access to private information is less of a concern given that the parties in questionare all from the same family who, in the general sense, already possess most of the background information about each other. At onepoint in these proceedings, the Director served Ms. H. by providing documents to the Applicant on Ms. H.’s behalf.

In the circumstances,the Director’s privacy concerns are diminished by the reality of the family dynamics. [35] The CFCSA at s. 39(4), grants this court the discretion to add the Applicant as a party, however the exercise of this discretion isto be used sparingly and only where matter demands it for the proper resolution of the issues. The Director submits that this remains thelaw in this province and that the leading case in this regard remains J.L. v. British Columbia (Director of Child, Family & CommunityServices Act), 2001 BCSC 1604 , 2001 B.C.J. No. 2838.

Since the J.L. decision, the law regarding Indigenous children in carehas evolved. In 2018, the CFCSA was amended to give Bands greater participation at all stages of CFCSA matters. In 2007, the UnitedNations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by a majority of 144 states. While Canada initiallyvoted against UNDRIP, in 2016 Canada reversed its positon and now supports it. This is clearly evident in the

preamble to ARFNIM,where the first line is a commitment from Canada to implement UNDRIP in the context of Indigenous children in care. In 2015, theTruth and Reconciliation Commission released its report. (TRC Report). The first calls to action (1-5) are directed at reducing thenumber of Aboriginal children in care. Call to Action No. 4 is a call to federal government to enact Aboriginal child –welfare legislationthat establishes national standard for Aboriginal child apprehension and custody cases.

ARFNIM received assent on June 21, 2019 –National Aboriginal Day – the longest day of the year, and was passed into law on January 1, 2020. [36] I find that ARFNIM may be applied in this matter and that the Applicant grandmother is a caregiver and therefore ought to beadded as a party as per s. 13 (

a) of ARFNIM. I also find that per s. 10 of ARFNIM and s. 4 of the CFCSA, it is in the best interest of thechildren for the Applicant to be added as a party.

If I am wrong in applying ARFNIM, I also find that in light of our evolving perspectivesas it relates to the plight of Indigenous children in care, the exercise of discretion in s. 39(4) of the CFCSA is inclusive enough toaccommodate an Indigenous grandmother, who through her actions, despite being removed as a parent, has consistently appeared at eachcourt appearance with counsel to make known that she will care for her grandchildren, should the parents fall back into addictions. Decision [37] The Applicant is will be added as a party to this proceeding. ________________________ R.D.

Phillips Provincial Court Judge