DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2021 BCPC 107

Citation: British Columbia (Child, Family and Community Service) v. A.D. 2021 BCPC 107 Date: 20210319 File No: [Omitted for publication] Registry: Prince George 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: S.D.D. , born [omitted for publication] S.J.J., born [omitted for publication] D.J.S., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: A.D., R.B.S. and D.R.J. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.

McDERMICK RE: S.J.J.'s APPLICATION TO BE ADDED AS A PARTY Counsel for the Director: S. Wagstaffe Counsel for the Parent (A.D.): W. Van Delft Counsel for the Parent (R.B.S.) S. Grattan Appearing for the Parent (D.R.J): Not Present Place of Hearing: Prince George , B.C. Dates of Hearing: May 14-17, Nov.5,6,9, 2018; April 5,15-18, Aug.12, Sept.16-19, Oct. 1-3, 2019; Feb.13, Oct. 19-22, Nov.16-20, 30, 2020; Feb.16-19, 2021 Date of Judgment: March 19, 2021 [ 1 ] Before this Court are R.B.S. (“R.S.”) and A.D. They are the parents of the subject children, S.J.J. (“S.”) and D.J.S. (“D.”),

[ 1 ] Before this Court are R.B.S. (“R.S.”) and A.D. They are the parents of the subject children, S.J.J. (“S.”) and D.J.S. (“D.”), (collectively the “Children”).

R.S. is the stepfather of S. [ 2 ] The Children were apprehended on June 7, 2017, and have remained in the Director’s care since then as a result of a variety of allegations of impropriety on the part of both parents, including inter alia : R.S.’s direct involvement with S. inspecting her hymen; R.S. abruptly removing a blanket off S. while she was masturbating; S. photographing her mother naked and in sexualized poses; allegations that A.D. forwarded photographs of S. in a bathtub to her partner at the time; and the existence of sexualized photographs of A.D. with D. present. [ 3 ] The Director has sought orders pursuant to section 41(1) (

c) of the Child, Family, and Community Service Act (the “ Act ”) that the Children remain in the care of the Director for a period of 6 months. Generally speaking, A.D. has connected with programming since this removal and seeks access to the Children supervised at the discretion of the Director. Historically, R.S. has sought a return of the Children to his care and\or reasonable access supervised at the discretion of the Director. R.S. currently enjoys supervised visits with D., which have been going well. Presently, he has no contact with S.

She has expressed unambiguously through counsel that she does not currently wish to have any contact with him. [ 4 ] This trial commenced on May 14, 2018, and has spanned 25 days since that time. This matter has been comprehensively litigated over a span of almost three years. Partially due to the protracted nature of the proceedings and the concurrent uncertainty that this has caused for S., her counsel Ms. Oliver Dunbar recently reported a deterioration in S.’s psychological well-being, characterizing her current state as “fragile”.

Accordingly, the parties assiduously came together and have since resolved the Director’s temporary custody order application with respect to her. More specifically, on February 4, 2021, the parties agreed that the child, S. would remain in the care of the Director for six months pursuant to

section 42.2(

b) of the Act , expiring August 4, 2021. By agreement, R.S.’s

section 55 application filed August 2, 2017 seeking reasonable access with respect to S. was adjourned generally, but not dismissed. A

section 55 order was made by consent that A.D. will have reasonable access to S. supervised at the discretion of the Director, with additional nuanced provisos. [ 5 ] At almost all material times in these proceedings, S. has been represented by Ms. Oliver Dunbar. Through the ongoing presence and participation of her counsel, S. has been treated as a de facto party for all purposes and has been consensually conferred all rights that such a designation entails. Ms. Oliver Dunbar began formalizing this process by filing an application dated August 10, 2020 to have S. legally added as a party.

This application wasn’t rigorously pursued in court, since S. was already consensually being treated as such by the parties. Since the temporary custody order with respect to S. has now been resolved, Ms. Grattan on behalf of R.S., takes the position that this dispensation has come to end, since there is no longer any extant lis with respect to S. Accordingly, with the support of the Director, Ms. Oliver Dunbar hereby applies for an order that S. be formally added as party to these proceedings for all purposes. R.S. is opposed.

This is the Court’s decision with respect to this issue. [ 6 ] The application is governed by section 39 (4) of the Act , which laconically states: The Court may order that a person be a party at any hearing. [ 7 ] Generally speaking, the test was developed and is set out in the lead case of J.L. v. Director of Child, Family and Community Service Act , 2001 BCSC 1604 . Only persons who have a real and substantial connection to the children at issue ought to be made a party (para. 8). The test is onerous.

At para. 10 of J.L. , the court states: [10] In this case the rights of these people to be heard regarding access is specifically preserved by the Act.

Section 39 of the Act limits those who are entitled to be parties to each parent, the Director and the Band in the case of an aboriginal (s.39.(1)). In addition, if someone other than a parent or the Director is to be given custody of the child or children, that person can become a party at the hearing that makes the order (s.39.3)). I have noted that both s.39(1) and 39(3) use the definite

article "the hearing." Section 39(4) gives the court additional discretion at "any hearing" to order a person to be a party. This discretion, according to the scheme of the whole section, should only be used sparingly and, I conclude, only if the matter before the court demands it for the proper resolution of the issues under consideration. [ 8 ] There’s a reason the threshold is so high. As emphasized by Ms. Grattan, being a party confers a breadth of entitlements.

At para. 7 of J.L. the court sates: [7] A person who acquires the status of a party under the Act is entitled to notice of every hearing; is entitled to be heard and call witnesses at the hearings; may apply to rescind an order under s. 54; has the right to attend a case conference; is entitled to disclosure of the records in the possession of the Director; is entitled to apply for defined access; and their consent must be obtained if a consent order is to be valid.

Until the order of 13 August this grandfather and step-grandmother were entitled to be present at the hearings but had no right to be heard unless invited to do so by the other parties or the Director. [ 9 ] And to such list, I would add the following: (

i) the right of cross examination; (ii) the right to object and shape the body of evidence to conform with established rules of evidence; and finally, (iii) the right of appeal. At least anecdotally, in the vast preponderance of cases, contested party applications are unsuccessful, and for good reason. [ 10 ] Ms. Oliver Dunbar presses strenuously that although the temporary custody order application with respect to S. has been resolved, she has a real and substantial connection to D. S. and D. are siblings.

They have regular visits which have been a constant for the last 2 years, and their relationship extends historically in a substantial and longitudinal fashion. Ms. Oliver Dunbar goes further and submits that in fact, no one has a greater connection to D. than S.; the sanctity and survival of that relationship is a core matter for this Court to consider, as codified in sections 2 and 4 of the Act which states the following as guiding principles: 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 restsprimarily with the parents; (b.1) Indigenous families and Indigenous communities share responsibility for the upbringing and well-being of Indigenous children; (

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

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 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. [emphasis added] [11] In British Columbia (Child, Family and Community Service) v. M.C.W., 2020 BCPC 132 and Director v. G.M.B. and E.D. andG.W., 2016 BCPC 54 , 2016 BCPC 0054, the Courts’ final analysis in denying the application was roughly similar as betweenthese cases. In M.C.W., the mother, M.C.W. had five children, all of whom were in the temporary custody of the director. The fouryoungest had spent years in foster care. M.C.W. conceded she couldn’t care for her children.

The youngest child, C.R.F.W., resided fulltime with her adult half-sister, R.F. R.F. applied to the Court to be added as a party so that she could participate in the hearing of theDirector’s application for a continuing custody order for all of M.C.W.’s children. Her ultimate goal was to obtain permanent custody ofC.R.F.W. The Director was supportive of such application but M.C.W. vigorously opposed it, viewing the application as leading to afurther fragmentation of her family. At the end of the day, Judge Doulis denied the application.

Her reasoning thoughtfully culminatesat para. 64 (relevant portions only): [64] …I am asked to decide whether R.F. ought to be added as a party to these CFCSA proceedings. Militating in favour of doing so isthe fact R.F. is, (

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

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

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

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

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

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

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

h) supported in her application and caregiving role by the Director; (i)directly affected by the Director's application for a continuing custody order of all the Children, including C.R.F.W. Militating stronglyagainst adding R.F. to these CFCSA proceedings is the fact that to do so will likely further delay and complicate the CFCSA proceedingsin both the Provincial and Supreme courts. Given the dual statutory mandates governing child protection services in the CFCSA and theFederal Act, I am not convinced naming R.F. as a party will provide the Court with information or a perspective it might not otherwisereceive.

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

Nevertheless, I find as long asM.C.W.'s appeal and petition to the Supreme Court (Smithers Registry BCSC Files 18443 and 18444) remain active and outstanding thisCourt should not add R.F. as an additional party to these CFCSA proceedings. Once the Supreme Court proceedings are resolved, thenR.F. has leave to renew her application to be named as party.

[12] The first portion of her reasoning, in

summary, reflects the relational closeness and bona fides of the applicant. Judge Doulisthen expressed concerns with adding R.F. as a party, noting it would delay and complicate the CFCSA proceedings. In our particular andunique case, I de-emphasize this concern since we have the benefit of hindsight. Here, Ms. Oliver Dunbar has been already been anactive and welcome participant over the last 25 days. Ms. Grattan makes the somewhat natural submission that more lawyers meansmore legal issues, scheduling issues, complexity, and hence overall delay.

Without parsing the analysis too finely, I note that generallyspeaking, Ms. Oliver Dunbar has not unnecessarily protracted the proceedings in any material fashion. Her cross examinations, forexample, have tended to be relatively incisive and circumscribed. [13] Judge Doulis goes on and explains that there are other ways to receive the valuable information R.F. can contribute to theproceedings, noting that she could simply be called as a witness, for example. Therefore, adding her as a party was not strictly necessary. [14] The structural form of this ultimate reasoning is very similar in the G.M.B. decision.

In that case, the natural fathers of three ofthe six subject children in the care of the Director applied for an order to have such children added as parties. The application wasdenied. Judge Wright expressed concerns about “the very real potential of significant delays that would flow from additional counselbeing made part of these proceedings” (para. 43).

At para. 41, he noted that there were numerous methods to procure evidence regardingthe childrens’ best interests, just as Judge Doulis had reasoned: [41] I would also note that the Act provides a number of ways in which evidence of the child's best interests can be adduced,including, but not limited to, s. 66, 67 and 68. I also note that an order has been made that the E.D. FLA action and the G.W. FLA actionare to be heard at the same time as these proceedings.

In those FLA proceedings, these fathers could also seek, pursuant to s. 122 ofthe Family Law Act, to have a views of the child report prepared, which in turn could be utilized in these proceedings. [15] Again and in

summary, the reductionist structure of Judge Wright’s and Judge Doulis’ ultimate reasoning is similar: Concernsregarding delay and complications were real and there were other ways to receive the applicants’ perspective, views, and evidence,which therefore restrained the ultimate value of the party applications. [16] In our case, it is Mr. Wagstaffe for the Director who loquaciously pressed the importance of receiving S.’s views, evidence andperspective by adding her as a party. He submits, “She needs the Court and the Court needs her”.

I agree that having her viewsexpressed through counsel in real time, in a nuanced fashion is important to and relevant to “the proper resolution of the issues underconsideration”. This Court adopts a broad and robust

interpretation of such phrase. Having S.’s counsel present to make submissionsand comments, to object to improper questions or evidence, and to cross-examine witnesses, all in real time in the ensuing proceedingswill assist in the correct adjudication of this matter. I am most mindful of the fact that S.’s views can be adduced in many different waysincluding but not limited to the mechanisms of sections 66 to 68 of the Act. But in this particular case, receiving this fine texturedperspective in real time is uniquely advantageous.

Beyond a relational intertwining between S. and D. as siblings, there is a significantlegal and factual interrelationship as well: Without parsing the ultimate issues of this case too finely at this juncture, I note that the vastpreponderance of R.S.’s alleged impropriety pertains to conduct directly involving S.

At least to some extent, one material issue thiscourt will need to resolve is to what extent such conduct involving S. infects whether D. is in need of protection. [17] That natural relational, legal and factual interrelation in the case at hand between S. and D., means that S.’s ongoing, nuanced,real time perspective in the proceedings is important to the correct adjudication of the extant applications pertaining to D. The temporarycustody order application with respect to S. is at an end. Nevertheless, this court does not take a siloed approach or perspective withrespect to whether D. is in need of protection.

Quite the contrary, this Court remains broadly preoccupied at all times with the bestinterests of both children. Nevertheless, while S.’s ongoing perspective is accordingly important to the correct adjudication of theapplication at hand, it may not per se, be “necessary to the proper resolution of the issues under consideration”, and that is the high legaltest. [18] However, Ms. Oliver Dunbar submits that the true, fundamental basis for her application goes far beyond that. She emphasizesher role in cross examining the witnesses.

She asserts that she is uniquely suited to conduct a cross-examination of witnesses that willshape and draw out evidence that will highlight and shed light on the best interests of S. and in turn, D. She presses, respectfully, thatMr. Wagstaffe is not well suited for this task: Although the Director is of course tasked to always consider the best interests of theChildren, Ms. Oliver Dunbar is single-minded in that regard.

She notes that she enjoys a robust, nuanced, and expansive professionalrelationship with S., engendered in part by the sanctity, intimacy, and privacy of solicitor-client privilege, thereby placing her in a uniqueposition to question witnesses. She submits that the efficaciousness of such cross examination could not easily be replicated by Mr.Wagstaffe. She notes that because of her expansive knowledge and background with S., she could responsively and organically pivot inher questioning as answers unfold in real time, and she could not equip Mr. Wagstaffe with this dynamic task.

She asserts that providinga blunt list of questions to Mr. Wagstaffe for him to rotely ask on her behalf is a most poor substitute. She also points out, practicallyspeaking, that the Director is under no obligation to comply with this approach. Mr.

Wagstaffe echoes these submissions and builds onthem by adding that not only does he not enjoy this advantageous duty of confidentiality with respect to S., but conversely, under certaincircumstances, he might have a duty to report her disclosures, eroding any prospective rapport between them. [19] Generally speaking, these submissions have a natural degree of force to them. There is interminable language and case lawespousing the central, sacrosanct position afforded to a broad cross examination as an effective tool in ascertaining the truth and in turn,correctly adjudicating the issues at hand.

See for example, R. v. Osolin, (SCC), [1993] 4 S.C.R. 595, 86 C.C.C. (3d)481, 109 D.L.R. (4th) 478, at p. 663: There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness iscredible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. Forexample, it can demonstrate a witness's weakness of sight or hearing.

It can establish that the existing weather conditions may havelimited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must bepermitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providinga fair trial to an accused. This is an old and well established principle that is closely linked to the presumption of innocence…

[ 20 ] Mr. Grattan emphasizes the consequences of conferring party status on a 14 year old child, submitting it is novel and troubling. In particular, she expresses significant concerns about the impending disclosure of what is expected to be a highly sensitive transcript involving alleged misconduct by R.S. as against his biological daughter, S.P., from many years ago. Ms. Oliver’s Dunbar’s reply is twofold. First, she notes that she is an officer of the court and expects to be bound by undertakings to assiduously guard the manner of disclosure of sensitive information.

Second, she appeals to the history of this matter, noting that she’s already been treated as a de facto party during the handling of the exceedingly sensitive sexualized photographs of A.D., and that nothing untoward came of it. By way of sur reply, Ms. Grattan notes that it’s one thing to bind Ms. Oliver Dunbar with undertakings, but that it would not be possible to control the actions of S. Holding this all in balance, while the court is left somewhat disquieted with respect to the possibility of the misuse of sensitive information by S., these concerns are restrained by Ms.

Oliver Dunbar’s submissions: Any information will be funnelled through an experienced officer of the court who will be bound by strict undertakings directly designed to block the improper use of such information, all in a context where this has already been successfully handled, so far, with respect to the exceedingly sensitive photographs previously alluded to. [ 21 ] In

summary, it is a weighty matter to add a person as a party to a proceeding, since it confers broad entitlements, and usually complicates and protracts litigation. Most contested party applications fail, and for good reason. It is high test that ought to used sparingly and then only where it is demanded for the proper resolution of the issues at hand. [ 22 ] It is not controversial that S. has a real and substantial connection to her sibling D. [ 23 ] Here, I summarily de-emphasize concerns regarding complicating the proceedings since this court has the benefit of hindsight and at least anecdotally, Ms.

Oliver Dunbar’s participation to date has not unduly or materially protracted the proceedings. [ 24 ] Gaining S.’s views in real time through counsel is of heightened importance in this unique case, since the nuances of her perspective naturally impact the extant legal applications that pertain to D.: Most of the allegations of impropriety by R.S. involve S.

This Court must ultimately consider, among other things, the fine textures of this alleged misconduct (and S.’s detailed views of it) and how this in totality does or does not impact whether D. is in need of protection. [ 25 ] This Court takes a robust view of what it means to “properly resolve the issues under consideration”. Receiving S.’s unique perspective as D.s’ sibling in an ongoing, real-time fashion through the submissions, objections and especially through cross examination by her counsel would naturally assist in correctly adjudicating the remaining applications concerning D.

Although the court remains somewhat disquieted by concerns with respect to the impending sensitive disclosure, these fears are significantly allayed as the documents in question will be funnelled through counsel who will be duty bound to carefully guard them, as has already been successfully accomplished on another matter of great sensitivity to wit: the illicit photographs of A.D.

Holding this all in balance, I conclude that adding S. as a party to these proceedings, all things considered, is necessary for the proper adjudication of the issues under consideration and I hereby grant her application. ________________________________ The Honourable Judge P. McDermick Province of British Columbia