Director v. S.D. and D.C.N., 2018 BCPC 38

Citation: Director v. S.D. and D.C.N. 2018 BCPC 38 Date: 20180216 File No: 15-28087 Registry: Vancouver 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: X.D. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.D. PARENT AND: D.C.N. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Director: S. Gray Counsel for the Parent, S.D. : S. Ali Counsel for the Parent, D.C.N. : W.D. Adams (as Agent) Place of Hearing: Vancouver , B.C. Date of Hearing: February 13, 2018

Date of Judgment: February 16, 2018 A Corrigendum was released by the court on February 21, 2018. The corrections have been made to the text and the Corrigendum is appended to this document. IN TRODUCTION [ 1 ] The Director applies pursuant to s. 45(1.1) of The Child, Family and Community Service Act, R.S.B.C. 1996 c. 46, (the “ Act”) to extend the initial temporary custody order. The parents oppose the application. This court must determine if granting the application is in the best interests of the child. BACKGROUND [ 2 ] X.D. (the “child”), was born [omitted for publication].

The child was premature and therefore remained in the hospital for a few weeks. On March 4, 2015, and prior to the child being discharged from the hospital, the Director removed the child. Thereafter, the matter went through the following court history: March 11, 2015 The matter appeared in court and was adjourned by consent. March 18. 2015 Family Case Planning Conference March 25, 2015 Interim custody order - by consent. May 5, 2015 Mediation May 6, 2015 Three month temporary custody order - by consent. October 26, 2015 Case conference - the father was unrepresented.

The mother had counsel and an extension order was granted – by consent. January 20, 2016 The Director filed an application for a Continuing Custody Order. March 15, 2016 Case conference - neither parent appeared. March 30, 2016 Both parents attended and the matter was adjourned to the Judicial Case Manager to set hearing dates. The dates set were: September 14, 15, and 16, 2016. July 20, 2016 Pre-trial conference, neither parent appeared but both were represented by counsel. Counsel did not have instructions. August 3, 2016 Pre-trial conference, the mother was in Ontario and instructed counsel to attend at trial.

Counsel for the father got off of the record. All of the hearing days but one were vacated. September 14, 2016 The trial was adjourned by consent of the mother. The father arrived late and consented to the adjournment. The Director was advised that the paternal family may be an option for placement of the child. March 8, 2017 Case conference - at this stage the option of placing the child with the paternal family was not viable. The mother did not attend the conference and the father attended without counsel. April 5, 2017 Counsel for the mother got off of the record as he had no instructions.

The father had counsel. Trial dates were set for February 20, 21, and 22, 2018. January 5, 2018 Counsel for the father got off of the record. January 31, 2018 Pre-trial conference, the father had new counsel. The Director applied for an extension pursuant to s. 45(1.1) of the Act and the hearing of the application was adjourned to February 13, 2018. [ 3 ] Since the original removal, the child has been living at the same resource. The child has had some introduction to his Indigenous heritage through age appropriate activities.

In the event that a Continuing Custody Order is granted, the Director will immediately begin the process of transitioning the child to a permanent placement with an Indigenous family. Steps towards a permanent placement have not commenced owing to the lack of finality regarding the child’s ultimate custodial status. [ 4 ] With respect to the parents, the Director advised that the issues triggering the child’s removal are still present and that meaningful steps have not been taken by them which address the original protection concerns.

In fact, it is noted that the father has two older children who are in care. [ 5 ] Of note is, the father has visited the child on a weekly basis. As for the mother, her visitation with the child has been very limited. She saw the child in the spring of 2016 and then in December of 2017. Counsel has indicated that there is another visit scheduled in the next few days. [ 6 ] If the Director’s application is denied they advise that, given the current protection concerns, they will commence the process again by removing the child.

The Director points out that although such a process would be a “paper” exercise, it would result in the February hearing dates being lost and ultimately result in dates being scheduled several months away. Essentially, a final resolution would be substantially delayed. POSITION OF THE PARTIES [ 7 ] The Director acknowledges that this matter was not diligently followed and that an application for an extension ought to have

been made in May of 2016. Despite this, the Director argues that their failing should not operate against what is best for child. [8] The Director also points to the legislation as support for the notion that the timelines can be extended in appropriatecircumstances. In essence, if the timelines were intended to be rigid then the legislation would not contain provisions permitting anextension. [9] Counsel for the parents argue the timeline has been breached by a significant period and, therefore, the extension should not begranted.

Counsel points out that granting the Director’s application would send a message to Director’s counsel that the timelines in theAct need not be respected. [10] Counsel for the father also points out that the father identifies as Indigenous and this is significant when considering the bestinterests of the child. In response to this point the Director notified two different Bands that the father claims association with and bothBands have no record of the father. The Director indicates that the assistance of the father is needed to identify the appropriate Band.

The mother’s Band has been notified. [11] In argument, all counsel jointly rely on the following cases: The Child, Family and Community Services Act and J.M., C.M.,A.M., and B.M.M., (29 July 1997) Port Alberni Registry Docket 7020 BCSC (hereinafter referred to as J.M.), British Columbia (Directorof Child, Family and Community Service) v. G.A.A. & S.E.A., 2003 BCSC 492, Director and TJ.S. and S.A.K., 2015 BCPC 257 ,2015 BCPC 0257, Director v. A.B. and E.S., 2011 BCPC 160. RELEVANT LEGISLATION [12] In considering this matter I have relied on the relevant sections of the Act.

Those sections are as follows: Guiding principles 2 This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and inaccordance 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;

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) the cultural identity of aboriginal children should be preserved;

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 aboriginal child, the importance of preserving the child's cultural identity must be considered in determining thechild's best interests. . . . Total period of temporary custody 45

(1) The total period during which a child is in the temporary custody of a director or a person other than the child's parent must notexceed, from the date of the initial order until the child is returned to the parent, an order transferring custody of the child under

section

54.01 (5) is made 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 thatorder, b) 18 months, if the child or the youngest child who was the subject of the initial order was 5 years of age or over but under 12 years ofage on the date of that order, and c) 24 months, if the child or the youngest child who was the subject of the initial order was 12 years of age or over on the date of thatorder.

(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 bestinterests to do so.

(2) In this section, "initial order" means a temporary custody order made under section 41(1)(

b) or (

c) or 42.2(4)(

b) or (c). . . . Continuing custody hearing and orders 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custodyorder. CONSIDERATON OF THE AUTHORITIES [13] I have considered the case law and provisions noted above. I observe that the decision to grant an extension is contextual to thefacts of each case and not simply decided, as counsel for the mother suggested, on the length of time that has passed since the expirationof a temporary custody order. Rather, and always, the administration and

interpretation of the Act is not based on time calculations buton the best interests of the child. [14] Further observations from the authorities are as follows. The court is obligated pursuant to s. 2 of the Act to interpret andadminister the statute so the safety and wellbeing of the child are paramount: British Columbia (Director of Child, Family andCommunity Service) v.

G.A.A. & S.E.A., 2003 BCSC 492 at para. 20. [15] The time limits established in the Act reflect concern for the safety and the wellbeing of the child, as such, decisions related tothe child should be implemented in a timely manner: British Columbia (Director of Child, Family and Community Service) v. G.A.A. &S.E.A., 2003 BCSC 492 at para. 20. [16] Timelines in the Act are not mandatory; however, as observed by Blair J., in J.M. at para. 12, wherein he quotes with approvalMr. Justice Freeman from the Nova Scotia Court of Appeal in H.W. v.

Children’s Aid Society (1996) (NS CA), 25R.F.L. (4th) 82 at para. 31: I would consider the time limits provisions to be not mandatory, but strongly directory, to be obeyed to the fullest extent possible,consistent with the best interests of the child.

Although, there must be concern about complying with the statutory guidelines, such technicalities must not be allowed to warp thelegislature’s intention of insuring the courts have the opportunity to address the children’s safety and wellbeing, as well as their bestinterests. [17] The Director bears the evidentiary burden of establishing that an extension of time is in the best interests of the child: BritishColumbia (Director of Child, Family and Community Service) v. G.A.A. & S.E.A., 2003 BCSC 492 at para. 18.

ANALYSIS Best interests of the child [18] Contained in s. 4 of the Act is a non-exhaustive list of factors that are relevant to the best interests of a child. Below I brieflydiscuss each factor. The child’s safety [19] There is nothing to suggest that the granting of the extension will negatively impact the child’s safety. The child’s physical and emotional needs and level of development. [20] The child is 3 years old. As such, he is approaching the age where settling him into a long term placement is becomingincreasingly important.

This is particularly pressing, given he is approaching the age where he would be attending pre-school andforming some friendships. The importance of continuity in child’s care. [21] The child has been in one placement since birth. The Director advises that it is uncertain as to how long this placement will beavailable. As such, it is my view that a further delay in the process may mean that the child be moved to another placement before anydecision is made on the Continuing Custody application.

In contrast, granting the extension and preserving the hearing dates will avoidfurther delays and lead to a faster resolution.

The quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship. [ 22 ] The child has had minimal contact with his mother and weekly contact with his father. The issue of the Director’s application has no impact on this factor. The child’s cultural, racial, linguistic and religious heritage . [ 23 ] The granting of an extension will ensure the matter proceeds on the hearing date. The benefit is, if the Continuing Custody order is granted then the Director can move to permanently placing the child in an Indigenous home.

In contrast, if the extension is not granted then the matter will endure further delays which will lengthen the time period before the Director could even consider placing the child in an Indigenous home. The child’s views. [ 24 ] Given the age of the child, it would not be appropriate to obtain the child’s view. The effect on the child if there is a delay in making a decision. [ 25 ] Future planning for the child is placed on hold until a decision is made regarding the Director’s Continuing Custody application.

To this end, planning for school or for a permanent placement cannot occur until a decision is made on the Director’s application. CONCLUSION [ 26 ] The delay in this case is appalling and must be denounced in the strongest terms. Despite this, I am tasked in making a decision that is solely in the best interests of the child.

To this end, to deny the application would only add further delay whereas granting the extension would enable the matter move forward with the hope that future planning for the child can begin at the earliest opportunity. [ 27 ] For the above reasons, it is my view that it is in the best interests of the child to grant the Director’s application. Accordingly, the extension is retroactive and continues until any of the following: it ends by the consent of the parties, within six months of today’s date, or at the conclusion of the Continuing Custody hearing. _________________________ The Honourable R.P.

Harris Provincial Court Judge CORRIGENDUM - Released February 21, 2018 [1] In my Reasons for Judgment issued on February 16, 2018, para. 25 contained an error. The last sentence should read. “To this end, planning for school or for a permanent placement cannot occur until a decision is made on the Director’s application.” [2] Further, para. 7 should be set out as a heading. [3] My Reasons for Judgment are amended accordingly.