2021 BCPC 259, 2021 BCPC 259

The Honourable Judge J.S. Guild M E M O R A N D U M TO: The Parties and Legal Counsel CC: All Legal Publishers FROM: Judge J.S. Guild DATE: November 4, 2021 SUBJECT: Case Name: B.J.K. v. M.J.B. Neutral Citation: 2021 BCPC 259 Registry: Vernon Docket: 8311 Please be advised that the attached Reasons on the Ministry for Children and Family Development Notice of Motion to be added as a Party of the Honourable Judge J.S. Guild dated November 2, 2021 have been edited. Starting with paragraph 5, the paragraphs are numbered incorrectly. The paragraphs should be listed in order from 1 to 38. Citation: B.J.K. v.

M.J.B. 2021 BCPC 259 Date: 20211102 File No: 8311 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25

BETWEEN: B.J.K. and M.L.K. APPLICANTS AND: M.J.B. and V.L.P. aka V.L.B. RESPONDENTS REASONS ON THE MINISTRY FOR CHILDREN AND FAMILY DEVELOPMENT NOTICE OF MOTION TO BE ADDED AS A PARTY OF THE HONOURABLE JUDGE J.S. GUILD Counsel for the Applicant: R. Muto Counsel for the Respondent: D. Brooks-Hill Counsel for Ministry for Children and Family Development: D. Poulin Place of Hearing: Vernon , B.C.

Date of Hearing: October 14, 2021 Date of Judgment: November 2, 2021 INTRODUCTION Overview [ 1 ] The Ministry for Children and Family Development (MCFD or Ministry) has applied to intervene in an application under the Family Law Act [1] ( FLA ), S.B.C. 2011, c. 25 made by former foster parents of a child to be appointed that child’s guardians.

The Ministry’s application raised the issues of the test to apply when considering s.204(2) of the FLA , and the effect of being granted leave to intervene. [ 2 ] Although I am mindful of the need to proceed expeditiously with the former foster parents’ application, I have concluded that it would not be appropriate to come to a final decision on the Ministry’s application to be added as a party at this point for two reasons. First, I have determined that the test for the Ministry is somewhat different than what the parties believed.

Fairness requires that they be given the opportunity to make submissions based on that test. [ 3 ] Second, since the Ministry sought to be added on a public interest basis, a subsidiary issue that arises is whether the Attorney General ought to be given notice of these proceedings to consider whether to intervene pursuant to s. 204(1) of the FLA . [ 4 ] Accordingly, these reasons will be limited to my determination of the appropriate test. Background

[ 5 ] Ms. P. is the mother of three children including E.M.P., the child at the center of these proceedings. Mr. B. is E.M.P.’s stepfather but not her guardian. I will refer to Ms. P. and Mr. B. as the B.s, as that is how they refer to themselves, and the children, including E.M.P., as their children, although that may be technically inaccurate. [ 6 ] The B.’s children were removed by the MCFD on January 18, 2019. The MCFD sought a temporary custody order. After removal, E.M.P., who was about three years old, was placed in the care of the K’s, foster parents approved by the MCFD.

They are very experienced foster parents. After a contested hearing, on March 12, 2020 I found the children were in need of protection but that the children should be returned to the B’s over a three month period, followed by a six month supervision order. That order was subsequently varied to allow better planning for the return of the children. E.M.P. was returned to the B’s in August 2020. The supervision order ended in May 2021. [ 7 ] During some of E.M.P.’s access time with the B. family, statements made by E.M.P. led the K’s and another foster parent to make a report to MCFD and to police.

The police investigation did not result in any charges. The MCFD ultimately determined that E.M.P. was not in need of further protection and that the existing orders did not need to be changed. The K’s were not satisfied with that result. [ 8 ] On April 23, 2021, the K’s applied under s. 51 of the FLA to be appointed as temporary guardians, for orders allocating parental responsibilities, parenting time, contact, and a protection order. They also sought interim orders to the same effect.

They said they did so to ensure that there was judicial oversight of what had transpired, particularly the MCFD’s perceived inadequate response to the reports. [ 9 ] I gave oral reasons on the K’s application for interim orders on April 27, 2014. I determined that I had insufficient information to grant the orders sought and made orders for disclosure of documents, including some in possession of the RCMP and the MCFD.

The disclosure applications and orders were made orally and without notice to those entities. [ 10 ] The MCFD had concerns with respect to the disclosure order that impacted the Ministry and filed a Notice of Motion (NOM) on May 4, 2021. MINISTRY’S APPLICATION [ 11 ] The Ministry’s NOM sought to set aside my disclosure order of April 27, 2021 and to add the Director of the Ministry (Director) as a party for the purposes of these proceedings generally, pursuant to section 204(2) of the Family Law Act and Rule 20(5) (

b) of the Provincial Court (Family) Rules . After a hearing, I provided oral reasons on May 27, 2021 and set aside the disclosure order. [ 12 ] On July 26, 2021, the K’s filed an Amended Application to Obtain an Order, seeking permanent guardianship pursuant to

section 51 of the FLA , allocation of parental responsibilities, parenting time, contact with the child and a protection order. More importantly, they sought to terminate Ms. P.’s guardianship, and in the alternative, orders that would ensure their involvement with E.M.P. and limit the B’s. [ 13 ] The Director’s application to be added as a party was heard on October 14, 2021. The first issues addressed in submissions related to the test for adding a person as a party and the impact of doing so, that is, whether the person added became an intervenor or a full party.

Other submissions focussed on whether the Director met the test. [ 14 ] The parties and the MCFD argued that the test for being added to this litigation was set out in the common law.

I have found myself in partial agreement with those submissions, but not entirely. [ 15 ] I have determined that the test to be added as a party under s. 204(2) of the FLA where there is an application for guardianship, parenting arrangements or contact is more broadly stated: whether the interests of justice require it, bearing in mind the purposes of the Provincial Court Family Rules [2] ( PCFR ) and ultimately, the best interests of the child. The common law may provide guidance in the exercise of that discretion, but they do not restrict it. When a person is added, they become a full party to the proceedings.

My reasons for these conclusions follow. ANALYSIS [ 16 ]

Section 97.1 of the Child, Family and Community Service Act [3] ( CFCSA ) specifically allows the Director to apply under s. 204(2) of the FLA for leave to intervene where the Director considers it is in the best interests of a child to do so. That

section of the FLA states: Intervention by Attorney General or other person 204

(1) The Attorney General may intervene in a proceeding under this Act and make submissions respecting any matter, arising in the proceeding, that affects the public interest.

(2) Any person may apply to the court for leave to intervene in a proceeding under this Act and the court may make an order entitling the person to intervene.

(3) The Attorney General or another person who intervenes in a proceeding becomes a party to the proceeding. [ 17 ] Although the NOM was filed under the Provincial Court (Family) Rules which were in effect at the time, the new Provincial Court Family Rules apply [4] . [ 18 ] Rule 62(

o) allows a judge to add a person as a party, “including leave to intervene”:

62 A judge may make orders to manage a case, including orders about the following: (

o) adding or removing a party to a case, including leave to intervene under section 204 (2) [intervention by Attorney General or otherperson] of the Family Law Act; [19] No test is set out in the PCFR for determining whether to add a person as a party. [20] The parties and the MCFD argued that the test for being added to litigation as an intervenor applied, and that test was set out inFriedmann v. Margrave[5]. The principles related to applications to make submissions as an intervenor on appeal, including thosereferred to in Friedmann, were more recently set out in A.B. v. C.D.[6].

I set out relevant excerpts from A.B. for the purposes of thesereasons: [30] To be granted intervenor status, the applicant must show it has some direct interest in the outcome of the proceeding (“directinterest basis”) or, alternatively, if the appeal raises public law issues, must demonstrate it can bring a perspective that is different anduseful to the court in resolving those issues (“public interest basis”): EGALE Canada Inc. v. Canada (Attorney General), 2002 BCCA396 at para. 7 (Rowles J.A. in Chambers); Vincent v.

Roche-Vincent, 2013 BCCA 136 at para. 4 (Neilson J.A. in Chambers). [31] In Vincent, Justice Neilson noted that this Court had advocated caution in granting intervention in private law matters and thatthat approach had particular application in a custody dispute, given the sensitive and personal nature of the issues that arise in such cases.While this case does not concern custody, it does raise sensitive and personal issues. [32] When a proposed intervenor seeks to intervene on a direct interest basis, it must show that its legal rights will be affected by thedecision or additional legal obligations will arise from the decision: North Pender Island Local Trust Committee v.

Conconi, 2010 BCCA405 at para. 6 (Lowry J.A. in Chambers). It is not enough that a certain outcome would have an adverse impact on the members of anintervenor: Carter v. Canada (Attorney General), 2012 BCCA 502 at para. 12 (Neilson J.A. in Chambers).

Nor it is enough that a certainoutcome would set a precedent that would indirectly affect the proposed intervenor in its own dealings: North Pender Island Local TrustCommittee at para. 6. [33] When a proposed intervenor seeks to intervene on the public interest basis, the Court’s concern is not with the interests of theintervenor, but with the interest of the Court in ensuring that important points of view are not overlooked: Equustek Solutions Inc. v.Google Inc., 2014 BCCA 448 at para. 8 (Groberman J.A. in Chambers). [34] The court may, where appropriate, give consideration to factors relating to the orderly and efficient administration of justice.The number of intervenors ought not to overwhelm the appeal in a manner that may be overly burdensome for the parties or the court:British Columbia Civil Liberties Association v.

Canada (Attorney General), 2018 BCCA 282 at para. 15 (Garson J.A. in Chambers)[BCCLA]. [35] In Equustek, Groberman J.A. explained at para. 10 that three “threshold considerations” apply to intervention applications,citing Guadagni v. British Columbia (Workers’ Compensation Board of British Columbia) (1988), (BC CA), 30B.C.L.R. 259 (C.A.) at para. 4 (Locke J.A. in Chambers): 1. The nature of the group seeking intervenor status; 2. The directness of the group’s interest in the matter; and 3.

The suitability of the issue in the appeal to an intervention. [36] In respect of the first consideration, a proposed intervenor must have a broad representative base if it purports to speak for aparticular sector or interest group: BCCLA at para. 14. The “unique and different perspective” of the proposed intervenor fits mostcomfortably under this consideration. [37] In the context of public interest interventions, the second consideration refers to the group’s interest in the issues on which itseeks to intervene.

In BCCLA, this was framed as whether the case “legitimately engage[s] the proposed intervenor’s interests in thepublic law issue on appeal”: at para. 14. [38] In respect of the third consideration, the proposed intervenor should not change the issues or expand the scope of the litigation,thereby commandeering the proceedings and placing an undue burden on the parties to respond to arguments and issues immaterial totheir private action: Ward v. Clark, 2001 BCCA 264 at paras. 6–11.

However, at the same time, the intervenor should not simplyduplicate arguments that will be made by the parties: Ahousaht Indian Band and Nation v. Canada (Attorney General), 2012 BCCA 330at para. 32 (Groberman J.A. in Chambers). The court will consider whether the intervenor will “bring a new or different perspective tothe consideration of the issues, or will make a useful contribution towards resolving the issues”: U.T.U., Locals 1778 & 1923 v. B.C.

RailLtd. (1990), 45 C.P.C. (2d) 33 at para. 6 (B.C.C.A.) (Proudfoot J.A. in Chambers). [39] The role of an intervenor is not to support the position of one party or the other, but rather to make principled submissions onpoints of law pertinent to the appeal. While such submissions may tend to support one party’s position, that is not their purpose:Friedmann v. MacGarvie, 2012 BCCA 109 at para. 28 (Bennett J.A. in Chambers). [Emphasis added] [21] Friedmann was applied at an initial hearing in F.C.R.A False Creek Residents Association v.

Vancouver (City)[7] (False Creek).Most germane are the following excerpts: [44] In Kitimat, the Court quoted extensively from the learned author, Joseph Story, from his Commentaries on EquityPleadings, 8th ed., Boston; Little, Brown and Company, 1870, regarding whether or not an applicant ought to be made a party to

proceedings , and concluded by saying at para. 25: Story's proposition, that the prime consideration in determining whether a person should be a party to the litigation is the interests of justice, is consistent with the overarching consideration on the application of any rule, the primary value being the interests of justice. [45] The Court in Kitimat then went on to say at para. 26: It is my view that Alcan was entitled to be joined under both Rule 15(5)(a)(ii) and Rule 15(5)(a)(iii).

The question is illuminated by considering Alcan's position in the event that it is not a full party to the litigation, that an order adverse to the respondent is made in the proceeding, that the present respondent declines to appeal the matter and that Alcan wishes to do so. Under the Court of Appeal Act , Alcan, if anything less than a party, would not have the right of appeal even though a court order may be made detracting from an order of the Minister of Energy and Mines, or an order-in-council, or an agreement between itself and the Province, or certain water licences it holds .

In that circumstance Alcan's only opportunity to remedy the court order would be to commence a legal proceeding in which it is a party, seeking a contrary order concerning the instrument in question and risking embarrassment of the court.

Such a result, in my view, is contrary to the interests of justice. [46] Thus, in my view, one of the propositions that clearly emerges from the reading of the Kitimat case is whether or not the granting of the application sought in the case at bar is in the interests of justice, quite apart from the Rule itself . [All emphasis added] [ 22 ] The application in False Creek was made pursuant to Rule 6-2(7) of the Supreme Court Civil Rules [8] :

(7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10), … (

b) order that a person be added or substituted as a party if (

i) that person ought to have been joined as a party, or (ii) that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and (

c) order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with (

i) any relief claimed in the proceeding, or (ii) the subject matter of the proceeding that, in the opinion of the court, it would be just and convenient to determine as between the person and that party. [ 23 ] That rule sets out specific considerations or requirements for a person to be added as a party, while s. 204 of the FLA does not. Even though that rule states that a judge has discretion to add a person as a party where “it would be just” to do so, False Creek states that the interests of justice are a distinct and separate overarching requirement. [ 24 ] Friedmann was also applied in M.J.S. v.

A.D. [9] , in which an application for intervenor status was made pursuant to section 18(2) (4) of the Family Relations Act (“ FRA ”), and section 20(5) (

b) of the Provincial Court (Family) Rules . The latter states: 20

(5) A judge may, at any time, do one or more of the following: (a) … (

b) order that a person be added as a party for purposes of a hearing or the proceedings generally; [ 25 ] I note that rule permitted a person to be added for a specific hearing, whereas its replacement under the PCFR does not. Since legislative amendments are generally considered remedial, it seems a legislative choice was made to no longer allow a person to be added for a limited purpose. [ 26 ] The background facts in M.J.S. were that in proceedings related to that case, the paternal grandparents had sought access. Their application was dismissed.

Then, in M.J.S. , the grandparents sought intervenor status and to be added as parties generally to the parents’ proceedings. The issues in those proceedings were child support and whether the father’s access should be supervised.

The grandparent’s application was dismissed for several reasons, including that they were effectively re-litigating the access issue they lost, their involvement had already been determined to be contrary to the child’s best interests, and their rights were not connected or material to the issues before the court. [ 27 ] With respect to the test, Saunders, J. stated: [3] The first application was filed under the FRA which was repealed on March 18, 2013 and the provisions of

section 204 of the FLA now apply and replace the provisions of

section 18 of the FRA . That

section provides for intervention by the Attorney General or other person and allows the party to become a party to the proceeding . This is at the discretion of the court and the

section recognizes that intervenors acting in the public interest can assist the court in making its determination in some instances. [Emphasis added]

[ 28 ] Three points are relevant to the present discussion: there was no issue with respect to guardianship; since there are only “some instances” where an intervenor acting in the public interest can help the court, in some cases they will not; and adding a person is discretionary.

With respect and not to be critical of that decision, there was no discussion regarding the test to be applied; perhaps because on any version, the applicants would have failed. [ 29 ] In W. (C.K.) [10] , Lilles, J. dealt with an application by the Selkirk First Nation to be granted standing in child protection proceedings in the Yukon. He considered what the term “standing” meant: [19] As T.A. Cromwell points out in his book Locus Standi, A Commentary on the Law of Standing in Canada , (Toronto: Carswell, 1986), the term ‘standing’ is not used consistently to describe a single concept.

This has resulted in considerable confusion as to both its meaning and its application. [20] To grant a third party standing in a legal proceeding has significant consequences. It entitles that party to call witnesses, cross- examine witnesses called by other parties, make submissions and to be part of any settlement of the action. It also binds that third party to the judgment. Third parties are more likely to be allowed to participate in a proceeding on a more limited basis, for example, to make a written or oral presentation relating it to the matter before the court.

This lesser form of standing is called intervener status. [21] The granting of standing and intervener status is largely a procedural matter, which involves the exercise of judicial discretion . The issue underlying the exercise of this discretion is the effectiveness of the court process.

Depending on the nature of the proceeding and the forum of the litigation, that discretion may be guided by rules of Court, by legislation or by common sense as part of the trial judge’s inherent jurisdiction to conduct the trial in a manner that would be just, efficient and convenient. [22] The more common reasons identified by Cromwell for exercising judicial discretion to give a party standing are : • In order to avoid a multiplicity of actions arising out of the same factual situation. • The need to conserve or make most efficient use of judicial resources. • The practical value of the applicant’s involvement in the proposed adjudication, including the contribution of the applicant to a just outcome. • The value of having the applicant legally bound by the court's decision. [23] Intervener status is something less than full party status.

It permits the intervener to participate in the proceedings to the extent and on such terms as the court directs. Any trial court has inherent jurisdiction to appoint interveners in appropriate cases and to fix the terms of that intervention. It may be limited to filing a written brief or it may include the right to attend the trial, and make submissions. It is instructive to consider intervener and full party status to be part of the same continuum, where full party status is located at the upper limit.

Interveners may be allowed a significant role including calling witnesses and directing questions to other witnesses. In the other extreme, their involvement may be limited, in the courts discretion, to filing a written brief. [24] The threshold for interventions is lower than for full standing … [Emphasis added] [ 30 ] In W.N. v. C.G . [11] , the Court of Appeal considered the relationship between the CFCSA and the FLA’s predecessor, the Family Relations Act [12] .

The relevant excerpts are: [2] The central issue raised in this appeal is whether the judge erred in deciding that, where the Ministry has returned children to the care of a natural parent, it would be against public policy to permit foster parents to apply for custody under the FRA in contest with the custody rights of a natural parent .

This raises the novel and nuanced question of whether parental ties are an overriding factor in the FRA where a competing custody applicant has established a relationship with the child by acting as that child’s foster parent. … [74] Thus I conclude from the jurisprudence that the jurisdiction of the court under the FRA is not necessarily ousted where CFCSA proceedings are underway . … [76] In the case of conflict, the CFCSA is paramount. … [80] In regards to whether there is a conflict , I note that child protection legislation is not concerned with what would be the most nurturing environment for a child but with when it is necessary to intervene with a child’s upbringing and/or residence in order to protect that child’s health and safety.

It is specific legislation targeting a narrow purpose and, when properly invoked, should be given precedence. [81] In my view, considering the purpose of child protection legislation, when considering a concurrent custody application, one should not place undue emphasis on CFCSA guiding principles which favour returning children to their natural parents as soon as possible . These considerations apply to determinations of whether the circumstances require state intervention; they do not contemplate and were not intended to have application to questions of custody for any other purpose .

As will be addressed below, the FRA scheme accounts for ties to natural parents in a different manner. [82] Here, there is no conflict. The CFCSA provisions at play do not determine long-term custody arrangements. In fact, the

order in place at the time of trial did not mark a state-imposed custody arrangement but the cessation thereof. As stated by the Ministry at trial, the CFCSA scheme was still operative but the Director no longer had a custodial interest. [83] Foster parents may be aware that their involvement may be intended to be temporary. However, on the other hand, a child’s return to his or her parents is not the same as a decision that his or her parents are the best people to have custody; it is merely the result of state intervention being no longer required to protect the health and safety of that child.

As is clear from the FRA , the law does not restrict who may apply for custody of a child but considers the best interests of the child to be determinative. [85] To summarize, it is my view that concurrent proceedings under the FRA and CFCSA are permissible. However, the FRA scheme cannot be used to challenge a decision made by the Director under the CFCSA . A supervision order is not a determination of custody; therefore, the trial judge had jurisdiction under the FRA . … [89] The judge’s erroneous conclusions on the public policy front lead her to further err in determining the FRA application.

Under the FRA , the best interests of the child determines the appropriate custody order. When considering the best interests of the child, blood ties are an important factor, but only one factor that the judge ought to have considered. There is no statutory prohibition precluding a foster parent from applying for custody . It will be an unusual case in which the Ministry has agreed to return the children to the natural parent because there are no child protection concerns, but a court would nevertheless award custody to the foster parents. But such a result is not, in my view, necessarily against public policy.

Granting custody to the foster parents may in some cases be very much in the best interests of the child and may override the importance of the parent/child relationship . To be clear, I agree with the trial judge that the CFCSA goal is to protect children in need of protection but also to facilitate the safe raising of a child with its natural parents if possible. I agree that it is not generally desirable for a natural parent to be pitted against a foster parent when the natural parent has satisfied the Ministry that there are no ongoing child protection concerns.

But the error in this case was the judge’s decision that the foster parents had no entitlement to apply for custody under s. 35 of the FRA once the Ministry’s custodial interest had ceased. The FRA specifically contemplates applications by non-parents. Public policy considerations cannot operate in a manner that would conflict with a statute . [Emphasis added] [ 31 ] With respect to matters affecting the public interest (which may not be the same as “public policy”) the role of the Attorney General (AG) intervening in a proceeding, and the consequences of being added as a party, were canvassed in A.B. v.

C.D .: [95] In support of his application, the AGBC refers to the longstanding constitutional principle that an Attorney General is in a different position from ordinary litigants . In that regard he notes that in Westminster Constitutions such as ours, subject to legislative override, rights of the public are invested in the Crown. The Attorney General, an officer of the Crown, enforces those rights.

Attorneys General are thus vested with the authority both at common law and by statute to initiate or intervene in legal proceedings in a variety of different contexts in order to protect and advance the public interest as they see fit . [96] The AGBC submits that the legislative intention of s. 204 is to ensure that all courts, including this Court, that are hearing matters involving the FLA have the benefit of the AGBC’s submissions in cases that engage the public interest that extend beyond the interests of the immediate parties . [98] I agree with the AGBC that s. 204 of the FLA gives the AGBC the right to intervene in a proceeding under the FLA .

I also agree with the AGBC that the proceedings below were under the FLA within the meaning of s. 204(1) . Accordingly, the AGBC had the right under s. 204(1) of the FLA to intervene in the Supreme Court and make submissions respecting any matter arising in that proceeding that affected the public interest . Had the AGBC done so, he would pursuant to s. 204(3) of the FLA have become a party to that proceeding and would have had an absolute right as a party to participate in this appeal .

The question is whether that right extends to the right to intervene in an appeal in this Court when he did not do so in the court below. In other words, is an appeal to this Court a “proceeding” under s. 204 of the FLA in which the AGBC may intervene as of right. [110] The purpose of s. 204(1) is to allow the AGBC to intervene in cases under the FLA respecting matters that affect the public interest. The public interest is greater on appeal than at trial. An appeal creates law that binds the whole province.

While the FLA is generally concerned with private disputes, as this case demonstrates a FLA case can raise issues of general public importance . In many cases the AGBC would only learn of cases that warrant intervention when the trial reasons are released . An

interpretation of s. 204(1) that would allow the AGBC to intervene as of right only at the trial level would not in my opinion be consistent with the purpose of the legislation . In the result I find that the AGBC can intervene as of right in this appeal. [111] In his application the AGBC sought permission to address certain issues. Given the language of s. 204(1) it is for the AGBC, not this Court, to determine the issues on which the AGBC will make submissions, so long as the issue is “arising in the proceeding” .

In making its determination on which issues it chooses to address, the AGBC might well wish to take into consideration this Court’s jurisprudence on interventions and the comments in these reasons concerning the suitability of intervention on certain of the issues raised in his application. [112] Pursuant to s. 204(3) , the AGBC becomes a party to the proceeding and has all the rights of a party in the appeal. The style of cause should be amended to include the AGBC as a respondent on appeal.

As a party the AGBC is entitled to file a factum, make oral submissions at the hearing and receive copies of the factums, appeal record, transcripts, appeal books and books of authorities. [Emphasis added] [ 32 ] A.B. v. C.D . confirms that the Attorney General has the right to intervene in a hearing and make submissions where the public interest is affected, but points out that in many cases the Attorney General does not become aware of proceedings that impact the public interest until after a decision has been rendered, and perhaps only when an appeal is filed.

That seems contrary to the public interest and the ability to make timely and just decisions in all the circumstances of a particular case, which suggests the AG should be given notice

of the issues in this case, and be able to make a decision to give effect to that right. If the AG intervenes, the Director’s public interest basis for intervening may be affected. [ 33 ] In my view, the meaning of “ intervene in a proceeding” does not mean the person or the Attorney General are intervenors, as traditionally understood and as discussed in W. (C.K.) . The Court of Appeal in A.B. v. C.D. makes it clear the AG becomes a full party by operation of s. 204(3).

I conclude that the same would apply to any other person whose application to intervene is granted under s. 204(2) , since legislation governs this application, not the common law. A person is granted leave to intervene and if the person does so, becomes a party.

Since a person applying to intervene under the FLA becomes a party, the intervenor test urged by the parties is inapt. [ 34 ] Where there is an application for guardianship, parenting arrangements or contact, s. 37(2) of the FLA sets out specifically what a court must consider, but directs that “all of the child’s needs and circumstances must be considered”.

If an applicant to become a party has a direct interest in the litigation, that is, they are part of the child’s circumstances, or they have an indirect interest and have a valuable contribution to make, then it may be important to add them as a party, if that is sought.

Whether they ought to be added as a party may be guided in part by whether their perspective can be adequately contributed without their being a party, because the addition of a party necessarily complicates and lengthens proceedings. [ 35 ] The purposes of the PCFR , which govern how the Director’s application is made, are important: Purpose 1 The purpose of these rules is to encourage parties to resolve their cases by agreement or to help them obtain a just and timely decision in a way that (

a) takes into account the impact that the conduct of a case may have on a child and family, (

b) minimizes conflict, (

c) promotes cooperation between the parties, and (

d) provides processes for resolution that are efficient and consistent with the complexity of the cases to be resolved. [ 36 ] Adding a person as a party should assist the court in coming to a just decision, take into account how their participation as a party might impact the child, minimize conflict and help streamline cases to ensure that decisions are timely. In my view, what was said at paragraph 46 of False Creek and the excerpts in W. (C.K. are instructive, but not determinative.

CONCLUSION [ 37 ] Under s. 204(2) of the FLA , the test to be added as a party to proceedings involving an application for guardianship, parenting arrangements or contact may be more broadly stated as whether the interests of justice require it, bearing in mind the purposes of the PCFR and ultimately, the best interests of the child, since that is the only consideration in determining guardianship, parenting arrangements and contact.

The common law may provide guidance in the exercise of that discretion, but does not restrict it. [ 38 ] That test does not apply to the Attorney General, who has a right to intervene under s. 204(1) in FLA cases that engage the public interest. This case appears to do so.

Pursuant to Rules 61 and 62 of the PCFR , I order that the Attorney General be served with a copy of the pleadings and decisions made so far in these proceedings. _____________________________ The Honourable Judge Guild Provincial Court of British Columbia [1] SBC 2011, c 25 [2] BC Reg 120/2020 [3] RSBC 1996, c 46 [4] Rule 196(1) [5] 2012 BCCA 109 [6] 2019 BCCA 297 [7] 2014 BCSC 1674 [8] BC Reg 168/2009

[9] 2013 BCPC 230 [10] 2002 YKTC 3 , 2002 Y.K.T.C. 3 [11] 2012 BCCA 149 [12] RSBC 1996, c 128