W.I. v. L.M.R. Date:, 2014 BCPC 164

Citation: W.I. v. L.M.R. Date: 20140429 2014 BCPC 0164 File Nos: 13046 and15190 Registry: Kamloops 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 CHILD: A.I. born BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: W.I. PARENTS AND: L.M.R. AND IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: W.I. APPLICANT AND: L.M.R. RESPONDENT EXCERPTS FROM PROCEEDINGS OF THE HONOURABLE JUDGE R.R. SMITH

Counsel for the Director: T. Weiss Counsel for the Applicant: D. Paul, Q.C. Counsel for the Respondent: L. Thomas Place of Hearing: Kamloops , B.C. Date of Hearing: April 29, 2014 Date of Judgment: April 29, 2014 [31] Some of my decision, really, would have to deal with cutting new law, as it were, with this new legislation. Let me explain what I mean by that. The child protection legislation allows in the interim a return to the parent apparently entitled to custody or to some other third party, but the child protection legislation does not allow a return to a parent who is not apparently entitled to custody.

That is by design. I have researched that extensively in the past. It was intended to be so. [32] The plan was that parents would resolve these issues through the then Family Relations Act , now Family Law Act , and they did not want, through the child protection legislation, addressing those fundamental Family Law Act parent-apparently-entitled-to-custody issues. However with the new legislation, the word "custody" never even raises its head anymore.

So who is the parent apparently entitled to custody when there is no FLA order in that regard? [33] I can get some direction from the fact that historically under the Family Relations Act , at times two parents would have joint custody, but one would have the primary residency, and there is a lot of case law that would say in those circumstances that the parent apparently entitled to custody was the one that had the primary care.

In cases where there is joint custody and shared parenting, then there is also a lot of authority for saying the parent apparently entitled to custody could be either. [34] Here, there is no question but what -- both parents are automatically guardians of this 16-month-old child. They were residing together. No definitive Family Law Act order has been made with regards to addressing who has the parental responsibilities.

In other words, there is no existing order that would say that mom has, in effect, the primary care by way of having the primary parental responsibilities, but de facto she did have the primary care. [35] The child was two-and-a-half months old when she moved to Ontario with the child while father remained in Langley in British Columbia.

Now, if something like that happens for a week or two or a month or two, that might not create a primary care de facto , but when it happens for over a year, it is clear to me that while there was no legal court order in that regard, the practice between the parents was that the mother had the primary care of the new born and the father had the primary care of the four-year-old. [36] I simply say that because when - going back to the child protection legislation and who is the parent apparently entitled to custody - I believe that at times there could be a return to either parent in the absence of some court order that defines who has the primary parenting responsibilities, but in the absence of any such court order, I think one needs to look at the history between the parties and, when it is clear that de facto one parent provided the primary care and it is while in that parent's home the child is removed, the parent apparently entitled to custody is that particular parent from whom the child was removed. [37] Just to be clear, it is not because the child was removed from the care of that parent.

Clearly, if there is a shared parenting arrangement and the child is removed from one parent, there would be nothing stopping the Director returning the child to the other parent who is obviously also apparently entitled, but it is in the circumstances where one parent has taken on all of the parenting responsibilities or at least the day-to-day-care parenting responsibilities and then the child is removed from that parent, it is in those circumstances where I believe it is clear who the parent apparently entitled to custody is within the definition of the child protection legislation. [38] Does that mean that today there could not be an order returning the child to father?

Absolutely not. I could today make an FLA interim order in his favour giving him the interim primary parental responsibilities such that I could then direct that the child be returned to that newly changed parent apparently entitled to custody, but that is the way that it would have to happen. It cannot happen simply by me not making an FLA primary parental responsibility order in favour of the father. That is the only way it can happen.

If I make that -- if I do not do that, I cannot just return to dad under the CFCSA . [39] So I get it, how complicated this is, what everybody is asking and you practically need the wisdom of Solomon to know how to deal with something like that and that is not the wisdom that I possess. I have told the parties repeatedly here this morning that it is really not about either of them, it is totally about the children. [40] I would not make an order giving the Director the interim custody under the child protection legislation just simply to give the mother more time to try improving.

That is her problem, whether she improves or does not improve. I would only do it if I thought such an order would be helpful to the child given the mother has been the primary caregiver for the first 16 months of the life of the child. [41] The reason I am hesitating is because there is a real merit to going both directions as far as what is best for the child here. Usually, I am really clear on one side being significantly better than the other. It is much more blurred in this particular case.

Because of that and because of the interim nature of what I am dealing with, I think the proper thing is to simply, in the interim, preserve more of the status quo and allow a more full FLA hearing to be held to sort out where the 16-month-old child should primarily reside.

THE HONOURABLE JUDGE R.R. SMITH