DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2021 BCPC 353

Citation: British Columbia (Child, Family and Community Service) and. L.M.R. and S.F. 2021 BCPC 353 Date: 20211027 File No: [Omitted] 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: T.L.R. , born [omitted for publication] W.E.R.F., born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L.M.R. and S.F. PARENTS ORAL DECISION OF THE HONOURABLE JUDGE S. MENGERING Counsel for the Director: K.

Chewka, via telecommunication Counsel for the Parent (L.M.R.): A. Oliver Dunbar, via telecommunication Counsel for the Parent (S.F.): P. LeBlanc, via telecommunication Place of Hearing: Prince George, B.C. Dates of Hearing: February 26 and May 25, 2021 Date of Judgment: October 27, 2021

[1] THE COURT: This is my decision on the Attorney General's application, filed December 17, 2020, to dismiss S.F.'s applicationfor Charter relief. BACKGROUND [2] S.F.'s children, T.L.R. and W.E.R.F. were removed from the care of their mother, L.M.R., on September 26, 2018. [3] On October 12, 2018, an order was made by Judge McDermick pursuant to s. 35(2)(

d) placing the children in the interimcustody of certain caregivers under supervision of the Director pending a protection hearing. [4] The court further ordered that, pursuant to s. 55 of the Child, Family and Community Service Act (the “Act”), S.F. havereasonable access to the children supervised at the discretion of the Director (the “Access Order”). [5] He says, and I need not delve into the merits of the application at this time, that the Director breached the Access Order by notallowing any access between himself and the children, despite his repeated requests, between October 12, 2018, and July 2019.

Further,the Director did not explain why he could not see the children or tell him what, if anything, he needed to do to be able to have access.

Healleges that he and the children suffered psychological and emotional harm resulting from the severed familial relationship. [6] S.F. says that the Director abruptly allowed contact in July 2019 only after he filed this application on June 3, 2019, seekingcosts for the Director's non-compliance with the Access Order. [7] He did not file a s. 57 application to vary the Access Order or an application for a penalty under s. 102 of the Act, both of whichwere remedies available to him at the time.

The parties agree his failure to do so does not preclude this application from being brought. [8] On June 3, 2019, S.F. filed the application seeking costs for both Charter breaches and Charter damages. The parties agree theunderlying child protection file concluded May 11, 2020. [9] On June 19, 2019, an order was made returning the children to the biological mother, L.M.R., under the supervision of theDirector. An order was made on February 11, 2020, extending the supervision order for three months to expire May 11, 2020. The courtalso ordered that S.F.'s application for Charter costs be adjourned to

schedule a two-day hearing not sooner than April 1, 2020. [10] The application was adjourned with the consent of all parties pending the outcome of a similar application brought in SupremeCourt, the decision of J.R.A. v. B.C. (Attorney General), 2020 BCSC 759 (“J.R.A.”), which was released on May 21, 2020. As a result ofthe J.R.A. decision, S.F. filed an amended application on July 20 dropping his claim for Charter damages, but seeking costs arising fromthe alleged breach and, specifically, an order for costs in relation to the Director's failure to comply with the Access Order made October12, 2018, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, being

Schedule B to the Canada Act, 1982. [11] I have not been told what the costs are, but as I understand it, the Attorney General concedes that S.F. has properly characterizedhis claim as costs and is not simply seeking damages disguised as costs. [12] The parties agree that the underlying child protection file is now completed and that the only outstanding issue in this proceedingis S.F.'s application for Charter costs. [13] As I understand it, the Attorney General concedes that the threshold test set out in R. v.

Imperial Tobacco Canada Ltd, 2011 SCC42 at para. 21 has been met: that, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed.

POSITION OF THE PARTIES ATTORNEY GENERAL OF BRITISH COLUMBIA [14] For the purpose of this application, the Attorney General of British Columbia (the “Attorney General”) admits that if S.F.'sCharter rights have been violated, he is entitled to a remedy; but that the relief must be sought in the Supreme Court of British Columbia. [15] It applies to dismiss the application on the preliminary basis without costs to either party on the basis that the court is functus andthe Provincial Court has no jurisdiction to grant the relief sought. [16] Under the first head, they say that the most significant factor in the functional analysis is that S.F.'s claim for Charter costs isunconnected to any ongoing child protection proceedings, which resolved on May 11, 2020.

This is the only application before the courtsand the Attorney General says it is a freestanding application for relief without any foundational proceedings to support it.

Accordingly,the application should be brought in Supreme Court. [17] The primary argument, however, is that an award for Charter costs is a remedy under s. 24(1) of the Charter which can only begranted by a court of competent jurisdiction and that the function and structure of the Provincial Court demonstrates that it is notauthorized to award Charter costs as a remedy under s. 24(1) for a Charter breach arising from CFCSA proceedings. [18] The Attorney General properly notes that the Provincial Court is a statutory court, without inherent powers.

Its powers arecircumscribed by statute and must be conferred expressly or by necessarily implication. [19] The Provincial Court does have jurisdiction for s. 24(1) remedies in some circumstances, but not all. It references the SupremeCourt in R. v. 974679 Ontario Inc., 2001 SCC 81 , [2001] 3 S.C.R. 575 (Dunedin) which states that “the statutory authority togrant a particular remedy, or the lack thereof, is a telling indication of the tribunal’s level of experience and expertise with that type of

remedy, and possibly the compatibility of this remedy with its function” (para. 66). [20] In this case, granting the remedy sought by S.F. would not serve any purpose related to controlling the court's own trial process. [21] While the Attorney General agrees that the structure of the Provincial Court supports a finding that it is a court of competentjurisdiction, it says that it cannot do so without impeding the court's ability to perform its intended function, which is to determine andmake orders in the best interests of the child ….not to grant costs awards in child protection proceedings.

The lack of explicit statutoryauthority under the Act, coupled with the lack of implied authority suggest the court is not functionally able to deal with the reliefsought. Combined with the substantial workload constraints already present for the Provincial Court, requiring the Provincial Court todeal with costs would add to the court's burden. It says that S.F. must pursue his claim against the Director for Charter relief in SupremeCourt.

S.F. [22] S.F. opposes the Attorney General's application to dismiss his amended application. [23] He submits that the actions of the Director amount to a violation of his s. 7 Charter rights and seeks relief pursuant to s. 24(1) ofthe Charter. [24] He argues that the court is not functus because his application was made before the discontinuation of the underlying childprotection proceeding, and the court's effective functioning would be undermined if it could not respond to the Director disobeying itsorders simply because a supervision order expired before there was time to file, schedule, and hear the application respecting the breachof an order.

He notes that this application was adjourned with the consent of the Attorney General, even when it was apparent that itwould outlive the child protection litigation. [25] He says that the Provincial Court is the appropriate venue for this application because enforcements of its own orders is essentialto the effective functioning of the Provincial Court and that bifurcating the protection proceedings from enforcement of orders that areancillary to those protection proceedings would prejudice S.F. and undermine the objectives of the Charter, which is to provide a full,effective, meaningful, and direct remedy for breaches. [26] He argues that, to the extent that s. 102 provides a mechanism to impose a monetary penalty on the Director for breaching anAccess Order, it is a factor which strengthens the inference that Charter costs can be imposed in relation to the breach of an AccessOrder.

ISSUES [27] The issues before me, therefore, are: i. is the Provincial Court functus, given that the underlying child protection file is now resolved and would be closed but for thisapplication; and ii. is the Provincial Court a court of competent jurisdiction to hear an application for Charter relief for an alleged breach of a s. 55order? I. Is the Provincial Court Functus? [28] With respect, I find the arguments of the Attorney General disingenuous where, as here, the application was adjourned while theunderlying child protection proceeding was live, to hear the outcome of the Supreme Court decision in J.R.A.

That the underlyingproceeding resolved 10 days before that decision was rendered does not, in my view, preclude the court's ongoing jurisdiction to hear thematter. [29] To rule otherwise would result in absurd outcomes where, for example, a breach occurs so close to a supervision order's expirythat it is impossible to address it in court before its expiry.

To render the court functus at that point would be inconsistent with the court'sfundamental ability to ensure that orders are complied with. [30] I am satisfied that the court retains jurisdiction to hear the application that was filed while the underlying child protect wasextant. II. Is the Provincial Court a court of competent jurisdiction to grant a remedy for a breach of s. 55 of the Act? [31] The powers of the B.C. Provincial Court are circumscribed by statute and must be conferred expressly or by necessaryimplication (Provincial Court Act, R.S.B.C. 1996, c. 379).

It does not have inherent jurisdiction, and does not necessarily havejurisdiction to grant 24(1) remedies in all circumstances. [32] The Supreme Court of Canada has set out a process to determine whether the Provincial Court is a court of competentjurisdiction starting with its 1986 decision of Mills v. The Queen, (SCC), [1986] 1 SCR 863 (“Mills”) and clarified inDunedin.

Under the tripartite test set out in those cases, it is accepted that a court of competent jurisdiction is one that possessesjurisdiction over the subject matter; jurisdiction over the person; and jurisdiction to grant the remedy. [33] The parties agree the first two criteria are met and that the sole issue before me is the third criteria: whether the Provincial Courthas jurisdiction to order costs under s. 24(1) if the Director is found to have breached S.F.'s s 7 rights by disobeying the Access Order. [34] In Dunedin (para’s 17 - 24), the court reminds us that in considering whether a court is a court of competent jurisdiction, we needto take a broad and purposive approach to the

interpretation of s. 24(1), in which someone whose rights have been breached can seek ameaningful remedy.

Section 24 has to be interpreted so as to achieve its purpose of upholding Charter rights by providing a full,

effective, meaningful, and direct remedy; but it cannot be read so broadly as to give a court a power it never had. The jurisdiction of this Provincial Court, after all, is fixed by Parliament and the Legislature, not by judges.

Thus, the task before this court is to interpret s. 24(1) in a manner that provides direct access to Charter remedies while respecting the existing jurisdictional scheme of the court. [ 35 ] The purpose of s. 24 remedies of costs are to discipline and discourage procedural misconduct in the court of a proceeding ( Dunedin , para’s 80-81). [ 36 ] To determine whether this court has authority to hear the application for costs, I must consider the structure and function of this court. [ 37 ] In a similar application, J.R.A. , referenced earlier, the applicant mother sought costs associated with bringing an application for Charter relief after the social worker resiled from a mediated agreement, made out of court, to seek an order at the next scheduled court appearance to return the children to the parents and, instead, removed the children and placed them with extended family some distance away.

I will say outright that J.R.A. is factually distinguishable, in that the mediated agreement was made outside of, and never filed with, the court. Accordingly, it did not form part of the court process.

I find that to be a critical distinction from the case at bar where S.F. seeks costs which are logically relevant to enforcement of an order that this court actually made. [ 38 ] In his decision, Justice Tindale found that the Provincial Court in CFCSA proceedings does have jurisdiction to award Charter costs as a means of controlling its own proceedings, but that a breach of a mediated agreement is conduct outside the scope of the Provincial Court process.

Costs awards must relate to impugned conduct within the ongoing litigation that relates to the court's ability to control its own trial processes. [ 39 ] The Provincial Court's mandate is to consider the best interests of the child. [ 40 ] The Attorney General says that the court has no explicit statutory authority under the Act to grant costs awards in child protection proceedings and that it "does not benefit from any implied authority to do so" (Para. 28 of its Written Submissions filed January 31, 2021).

With respect, I strongly disagree. [ 41 ] The removal of a child from their parents, family, and home is one of the most intrusive things the state can do. In this case, Judge McDermick found that it was not contrary to the best interests of the S.F./L.M.R.’s children to maintain contact with their parents, and accordingly, he made a s. 55 Access Order in favour of the father. Judicial oversight of that order is essential to the court's role in making orders for the protection of children taking into account the children's best interests ( J.R.A. , para 86 ).

To say that the court does not benefit from an implied authority to do so ignores the interest this society has in protecting children and fostering their relationship with their parents and extended family, even while in the care of the state. [ 42 ] The court has authority under s. 102 of the Act to fine or incarcerate a party who breaches a s. 55 access order.

The Act is silent as to the recovery of costs for seeking that remedy, which would necessarily be brought under the Offence Act , but I find that there is a strong nexus between the court's statutory jurisdiction to grant a s. 102 remedy and the costs remedy sought by S.F. if the court ultimately finds a breach of his s. 7 rights.

That nexus strengthens the inference that this court is competent to issue the desired Charter relief. [ 43 ] Charter costs for breaches of an Access Order enhances the court's function in administering the Act in that it gives the court that is already dealing with a child protection proceeding, a tool to enforce its orders, and a tool to ensure that the children's best interests are at the forefront and being protected.

The court must be able to respond to misconduct that jeopardizes the child's wellbeing, whether it is the Director or a parent that is refusing to abide by a s. 55 access order; without requiring the aggrieved party to commence related proceedings in the superior court.

Requiring a parent to conduct a separate action to obtain a remedy - bifurcating the proceedings - undermines the objectives of the Charter , which is to provide effective, meaningful remedies for breaches. [ 44 ] The Provincial Court must interpret s. 24(1) in a manner that provides direct access to Charter remedies, while respecting the existing jurisdictional scheme of the courts. A right is only as meaningful as the remedy provided for its breach.

To require S.F. to seek relief in a superior court would effectively "smother him in procedural delays and difficulties and deprive him of a direct remedy” ( Dunedin , para. 20 , citing Justice Lamer in Mills ). [ 45 ] I find that it is essential to the court's effective functioning in a child protection proceeding that it be able to enforce its order by granting costs against the Director; and that the Provincial Court's effective function would be undermined if it could not respond to the Director disobeying its orders simply because a supervision order expired before there was time to hear the application respecting the breach of an order. [ 46 ] In my view, enforcement of an access order is directly related to the Provincial Court's ability to control its proceedings and, in fact, assists its intended function in making orders in the best interests of the children.

That s. 102 of the Act allows the court to impose a fine up to $10,000 or imprisonment for up to six months for anyone breaching a s. 55 access order strengthens the inference that this court has jurisdiction. [ 47 ] The Provincial Court by virtue of its function and structure is an appropriate forum for ordering the Charter remedy sought. [ 48 ] Accordingly, I dismiss the Attorney General's application filed December 17, 2020, to strike S.F.'s amended application. (REASONS CONCLUDED)