The Director (designated under the Child, Family v. Community Service Act, 2003 BCSC 492

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Director of Child, Family and Community Service) v. G.A.A. & S.E.A. , 2003 BCSC 492 Date: 20030401 Docket: 33899 Registry: Kamloops IN THE MATTER OF THE CHILD, FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C., 1996 –

CHAPTER 46 AND AMENDMENTS THERETO AND IN THE MATTER OF THE CHILDREN R.H.D.F., born […], 1994, J.W.F., born […], 1993 and C.S.F., born […], 1998 Between: The Director (designated under the Child, Family and Community Service Act ) Appellant And G.A.A. and S.E.A. Respondents Before: The Honourable Mr. Justice Blair Reasons for Judgment Counsel for the Appellant C. Oien Counsel for the Respondent S. M.

Soll Date and Place of Trial/Hearing: February 26, 2003 Kamloops, B.C. [ 1 ] The Director, The Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 , (“the Act ”) appeals the November 28, 2002 decision of His Honour Judge T.A.

Dohm of the Provincial Court of B.C. (“the Trial Judge”) denying the Director's application for an order extending the time in which the three children (“the children”) can be in care pending the hearing of the Director's application for a continuing custody order. [ 2 ] The Director's involvement with the children apparently commenced on August 9, 2000, with a hearing that concluded on August 16, 2000 when a consent order was made. The order provided that the children would remain in the Director's care, with the parents to have supervised access.

Various steps ensued with the children remaining in the Director's care throughout. On November 13, 2001, the parties agreed that the children were in need of protection and a three-month temporary custody order was made, expiring February 13, 2002, followed by other three-month temporary orders made on May 8 and August 7, 2002, the latter expiring on November 6, 2002.

The Director, by application returnable November 6, 2002, sought a continuing custody order pursuant to s. 49 of the Act , but did not, in that application, seek an order extending the time for the children to be in care pending the completion of the application for a continuing custody order. [ 3 ] The Trial Judge determined that by November 13, 2002, the children had been in the custody of the Director for a period in excess of 12 months since the making of the initial temporary custody order on November 13, 2001.

Because the youngest of the three children, born […], 1998, was under five years of age on November 13, 2001 s. 45(1) (

a) of the Act limits the total time these children may be in the temporary custody of the Director to a period of 12 months. Subsection (1.1), however, allows the court to extend the 12- month time period: 45(1) The total period during which a child is in the temporary custody of the director or a person other than the child's parent must not exceed, from the date of the initial order until the child is returned to the parent or a continuing custody order is made, (a) 12 months, if the child or the youngest child who was the subject of the initial order was under 5 years of age on the date of that order.

(1.1) On application the court may extend, by a specified period, a time limit in subsection (1) if the court considers it in the child's best interests to do so. [ 4 ] The Trial Judge noted that on November 6, 2002, the Director filed an application for a continuing custody order, a case conference was set for January 14, 2003 and the matter was adjourned to November 13, 2002.

For some unexplained reason, however, the case was not called on November 13 and next came before Judge Dohm on November 27, 2002, when the Director applied to extend the time the children could be in care pursuant to s. 45(1.1) until determination of the Director's application for a continuing custody order. Judge Dohm reflected overnight on the Director's application before giving his 18-page reasons denying the Director's application. [ 5 ] The Trial Judge noted in his judgment at ¶4 that counsel for the Director characterized the omission to apply for an order extending the time limited by s. 45(1) (

a) as an administrative oversight which the court should remedy by making an order retroactive to a date preceding the expiry of the last temporary custody order. [ 6 ] In his judgment, the Trial Judge considered the provisions of the Act referred to by counsel in their submissions, including s. 45(1) and (1.1) , which are referred to above, and s. 66 which describes hearings under the Act as being civil in nature and as informal as a judge may allow, but providing in ss.(2) that: No order under this Act may be set aside because of any informality at the hearing or for any other technical reason not affecting the merits of the case.

Judge Dohm also referred to sections 2, 44 and 61 which state: 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: (

g) decisions relating to children should be made and implemented in a timely manner. 44.

(1) If the circumstances that cause the child to need protection are likely to improve within a reasonable time, the Director may, before the order expires, apply to the court for an extension of a temporary custody order. (3)(

b) If satisfied that the circumstances that led to the child being removed are likely to improve within a reasonable time, the court may, in the child's best interest, extend the term of the temporary custody order, but not beyond the period permitted under

section 45. 61.

(1) If a child is in the custody of a director or another person under a temporary custody order and an application for an extension of that order, for a continuing custody order or for a supervision order under

section 46 is adjourned. ...

(2) This

section does not operate to extend a limit set by section 45(1) or by an order under section 45(1.1) respecting the total period during which the child may be in the temporary custody of the director or another person. [ 7 ] The Trial Judge also considered the decision In the Matter of the Child, Family and Community Services Act and the Children J.M., C.M., A.M., and B.M. , (29 July 1997) Port Alberni Registry Docket 7020, (B.C.S.C.) which involved facts similar to those in the instant case. In that case, the children had been in custody under a temporary custody order in excess of 12 months.

The application to extend the temporary order came after the expiry of the temporary order but during a hearing being conducted by His Honour, Judge Klaver, of the Provincial Court of B.C., who granted the application to extend the custody order. I heard the appeal and concluded Judge Klaver had the jurisdiction to extend the order, which he had specifically found to be in the best interests of the children. [ 8 ] Judge Dohm also referred to the decision in J(D.) v. British Columbia (Superintendent of Family and Child Services) (1993), 1993 CanLII 16098 (BC SC) , 46 R.F.L. (3d) 277 (B.C.S.C.) in which Mr.

Justice Parrett, addressing the issue of time limits found in the then existing act dealing with child protection, stated at ¶49: I do not wish to be taken as saying that fundamental matters in the Act , such as time limits, hearing requirements and notice requirements, are in any way to be treated flexibly by the Superintendent. On the contrary, such matters are to be strictly obeyed and where they are not, the courts will not condone such failure by the Superintendent to observe the statutory requirements of its authority.

However, the desire of the court to censure possible lapses in meeting statutory requirements through a finding of loss of jurisdiction must be weighed

against the consequences of such a finding. [ 9 ] Judge Dohm concluded at ¶25 of his reasons that while he had the jurisdiction to extend the time as sought by the Director in the November 27, 2002 application, he found that this was not a proper case in which to exercise this discretion. He concluded that the Director had failed to adhere to the statutory time limits and had failed to adduce evidence at the hearing of the extension application upon which the court could conclude it was in the children's best interests to extend the custody time limit.

In considering the application, Judge Dohm also relied on the decision in H.L. v. The Director (Designated Under the Child, Family and Community Service Act ) , 2000 BCSC 845 , in which Mr. Justice Chamberlist concluded that the Act contemplated a hearing being held on the issue of whether a temporary custody order ought to be extended. [ 10 ] Judge Dohm acknowledged that notwithstanding his decision, the Director could start a new application regarding the children, thereby keeping them in custody.

The Director’s counsel advised during the hearing of this appeal that the children have remained in the Director’s custody. [ 11 ] In his reasons, the Trial Judge expresses, if not frustration, a live concern about the Director's approach to dealing with the case, stating at ¶24: This case has been attended throughout with delay. The children have been in the care of the Director altogether now some twenty-seven months.

I attribute some of that delay to well intended efforts to ensure that the parents were given every opportunity to improve their situation so that the children could be returned, but not all of the delay can be excused. The judgments that I have referred to make it plain that

section 2 (

g) of the Act must be given meaning. While it was not a matter in argument before me, counsel must be aware that the original temporary custody order, which I made on November 13, 2001, remains un-entered. That is because it was only submitted to me for signature in November of 2002. That, like the failure to apply in a timely way for an order extending the time in temporary custody, speaks more of neglect than oversight. Judge Dohm’s language is critical; in his reasons he traces the history of the case, the evidence and counsels' submissions.

He reflected that he might well have appreciated more time to consider the case; however, I find his reasons more than adequate in the circumstances, particularly his thorough review of the case’s chronology. [ 12 ] This appeal is not a trial de novo . It is not for me to review the evidence before the provincial court judge and substitute my discretion for that of the Trial Judge. I must determine whether the Trial Judge acted on some wrong principle, disregarded significant material evidence, or made a decision that was clearly wrong: Director for Child, Family and Community Service v.

J.M. , 2003 BCSC 187 , ¶s5 - 7, a decision of Madam Justice Sinclair-Prowse. [ 13 ] The Director advances six grounds of appeal which I will deal with briefly, having already considered Judge Dohm's reasons and his conclusions. The Director submits that Trial Judge failed to consider the intent of the Act , that being the protection of children.

The reasons, some of which I have noted above, indicate Judge Dohm's awareness of the intent of the Act , particularly as delineated in s. 2 , and his need to ensure that the best interests of the children were addressed in his judgment. [ 14 ] The Director further submits that the Trial Judge, in considering the best interest of the children, failed to note that the children were in need of protection and that the Director had made an application for continuing custody.

Judge Dohm's reasons acknowledge the finding, early in the proceedings, that the children were in need of protection and, additionally, that the Director's application was for an order for continuing custody. The reasons further reflect that Judge Dohm dealt with the case prior to the November 27, 2002 extension application as he had heard four days of evidence in May 2001 when hearing the Director's original continuing custody application.

The application was not pursued as on November 13, 2002, the parties consented to the children remaining in the Director's care pursuant to a temporary custody order. [ 15 ] The Director submitted that the Trial Judge erred in assuming the delays in this matter were a result of the Director's actions. Judge Dohm reviewed the conduct of the case and at ¶24 reached conclusions, not assumptions, regarding the delay in pursuing the case, attributing some of the delay to well-intended efforts to return the children to the parents. He also found, however, that some of the delay could not be excused.

He stated at ¶25: The intrusive nature of this type of proceeding requires the Director to be genuinely concerned about compliance with the statute. I have given this case all consideration that I could in the time available to me. I considered the law, I have considered the history of the case, its duration, and I conclude that to make the order sought in this case would only operate to encourage further omissions.

I do not find that the Trial Judge erred in his conclusions regarding the delays in the pursuit of this case. [ 16 ] The Director further submitted that the Trial Judge misapprehended the Director's application, which was to extend the time the children could be in care, not to extend the temporary custody order. Although the Trial Judge's reference to the nature of the application might have been better phrased, ¶s3 and 4 of his reasons reflects his awareness that the application dealt with the one-year time limitation found in s. 45 (1)(

a) of the Act and the remedial tenor of s. 45(1.1), stating at ¶4 of his reasons:

The Director characterizes the omission to apply for an order extending the time, limited by Section 45(1)(a), as an administrative oversight which the court should now hear by making an order retroactive to a date preceding the expiry of the last temporary custody order.

I am satisfied that the Trial Judge was alive to the nature of the Director's application, referring as he did to both the initial order and the maximum term of custody under s. 45(1)(a). [ 17 ] The Director's counsel also submitted on this ground of appeal that the Trial Judge erred in looking at the total time the children had been in care without regard to the definition of an initial order. This submission ignores the statement in ¶3 of the reasons that the date of the initial order was November 13, 2001, a statement followed by a recitation of s. 45(1)(

a) which refers to the one-year time limit. I conclude that on November 27, 2002, the Trial Judge knew when the temporary custody order expired. [ 18 ] The Director submitted that the Trial Judge erred in failing to consider that the children's mother had not presented evidence to show that it was contrary to the children's best interest to extend the one-year time limit found in s. 45(1)(a). I concur with the mother's counsel that the evidentiary burden lay not with the mother, but with the Director to establish that the time should be extended.

Judge Dohm found the Director had not met the evidentiary burden. [ 19 ] In the final ground of appeal, the Director submits the Trial Judge erred in determining that the court needed to balance the best interests of the children with the time lines imposed on the Director by the Act .

Judge Dohm refers to his obligation to weigh or balance the children's best interests against the Director's statutory time obligations at ¶22 of his reasons, where he writes of the need: ...to balance the best interests of the child with a court enforcing the statutory time requirements under which the Director is, by statute, designed to operate. [ 20 ] Although Judge Dohm refers to weighing and balancing, I do not construe from his Reasons that he is ignoring the court's obligation under s. 2 of the Act to interpret and administer the statute so that the safety and well-being of the children are the paramount consideration, as he recites s. 2 at ¶14 of his reasons.

He acknowledges at ¶19 that the children are in need of protection, noting that the parents admitted this need early in the proceedings. However, Judge Dohm also acknowledges the court's obligation to consider the Director's statutory time limitations, reflecting that the legislative concern found in s. 2 directs that decisions relating to children should be made and implemented in a timely manner.

I do not find that he fell into error in reviewing both the best interests of the children and the Director's obligation to abide by the time limits as I conclude that at all times he recognized the paramountcy of the children's best interests. I dismiss the appeal, finding that the Trial Judge applied the proper legal principles and did not disregard evidence or make a clearly wrong decision. “R.M.L. Blair, J.” The Honourable Mr. Justice R.M.L. Blair