DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2021 BCPC 314

Citation: British Columbia (Child, Family and Community Service) v. P.D.J. 2021 BCPC 314 Date: 20211208 File No: [Omitted for publication] Registry: [Omitted for publication] 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: L.L.G.J. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: P.D.J. PARENT R.L.G. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Director: L. Hawes Counsel for Applicant D.T. K. Melbye Counsel for Applicant T.L. L.

Kennedy Place of Hearing: [Omitted for publication], B.C. Written Submissions filed: August 13, and November 1, 2021

Date of Judgment: December 8, 2021 History [1] This case is concerned with the guardianship of L.J., now age 2. [2] L.J. was removed from her parents’ care by the Ministry of Children & Family Development (“MCFD”) on March 31, 2021. [3] On April 7, 2021, His Honour Judge MacCarthy of this court placed L.J. in the care of her maternal grandparents, Ms. T.L. andMr. G., under the supervision of MCFD. [4] On April 22, 2021, MCFD filed an application for a temporary custody order under the Child, Family & Community Service Act(“the CFCSA”). That application remains pending. [5] L.J.’s parents died on May 1, 2021. [6] On May 10, 2021, L.J.’s adult sister, D.T., applied for an order, pursuant

section 51 of the Family Law Act SBC 2011, c 25 (“theFLA”), declaring her to be L.J.’s guardian. That application remains pending. The Issue [7] Ms. T.L. and Mr. G. assert that MCFD became L.J.’s legal guardian by operation of law immediately upon her parents’ death.Ms. D.T. and MCFD disagree, and assert that Ms. D.T.’s application for a guardianship order should proceed in tandem with MCFD’sapplication for a temporary custody order under the CFCSA. The parties have asked that I decide that issue. The Statutes [8]

Section 51 of the Infants Act RSBC 1996, c 223 provides:

(1) If a child has no guardian or if the guardian appointed is dead, refuses or is incompetent at law to act, (

a) a director under the Child, Family and Community Service Act is the personal guardian of the child, (

b) the Public Guardian and Trustee is the property guardian of the child, or (

c) paragraphs (

a) and (

b) both apply, as circumstances require, unless a tribunal of competent jurisdiction otherwise orders.

(2) If a director under the Child, Family and Community Service Act is the personal guardian of a child, the director has all the powersthat a guardian, as a guardian of the person of a child appointed by will or otherwise, had on May 19, 1917 in England under Acts 12,Charles the Second,

chapter 24, and 49 and 50 Victoria,

chapter 27,

section 4.

(3) If the Public Guardian and Trustee is the property guardian of a child, the Public Guardian and Trustee has all powers that aguardian, as a guardian of the estate appointed by will or otherwise, had over the estate of a child on May 19, 1917 in England under Acts12, Charles the Second,

chapter 24, and 49 and 50 Victoria,

chapter 27,

section 4. [9] Section 13(1)(

j) of the CFCSA provides that a child is in need of protection if (inter alia) “… the child’s parent is dead andadequate provision has not been made for the child’s care …”.

Section 47 provides that, if MCFD has custody of a child under an interimorder or a temporary custody order, it has the authority to make any decision in relation to the child which a guardian could make, exceptthe authority to consent to the child’s adoption.

Section 50 provides that, if a continuing custody order is made in relation to a child,MCFD “… becomes the sole personal guardian of the child and may consent to the child’s adoption …”. [10]

Section 51 of the FLA provides that a “court” may appoint a person to be the guardian of a child. It imposes no limits on thecircumstances in which such an order may be made. A “court” is defined by

section 1 to mean: (

i) the Supreme Court of BritishColumbia; or (ii) “… to the extent that it has jurisdiction to make an order, the Provincial Court of British Columbia”. Construing the Statutes [11] If one were to construe the CFCSA in isolation, one would easily conclude that MCFD does not become a child’s guardian unlessand until a continuing care order is made. If MCFD became a guardian automatically upon the death of a child’s parents,

section 47 ofthe CFCSA would have simply said so and

section 50 would have been unnecessary. [12] If one were to construe the Infants Act in isolation, one would equally easily conclude that MCFD automatically becomes theguardian of a child whose parents have died. [13] The governing principles were stated in R. v. Greenwood (ON CA), [1992] OJ No. 271; 7 OR (3d) 1 @paragraphs 15 – 17: It is a fundamental principle of statutory construction that in approaching the

interpretation of two statutes in apparent conflict, the courtshould attempt, if possible, to resolve the contradiction and try to harmonize them. Parliament should be presumed consistent in its

intention and any apparent repugnancy should be avoided by reconciling the two enactments where possible: see Pierre-Andre Cote, TheInterpretation of Legislation in Canada (Cowansville, Que.: Yvon Blais Inc., 1984), at pp. 279 and 284-85. In R. v. Greenshields, (SCC), [1958] S.C.R. 216, 17 D.L.R. (2d) 33, the Supreme Court of Canada was called upon toreconcile a statutory conflict.

Locke J., although dissenting in the result, expressed the applicable principle of statutory construction at p.226 S.C.R., pp. 42-43 D.L.R., as follows: In the case of conflict between an earlier and a later statute, a repeal by implication is never to be favoured and is only effected where theprovisions of the later enactment are so inconsistent with, or repugnant to, those of the earlier that the two cannot stand together.

Unlessthe two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal cannot be implied.Special Acts are not repealed by general Acts unless there be some express reference to the previous legislation or a necessaryinconsistency in the two Acts standing together which prevents the maxim generalia specialibus non derogant being applied: Broom'sLegal Maxims, 10th ed. 1939, p. 349: Maxwell, op. cit., p. 176. The maxim generalia specialibus non derogant referred to by Locke J.means that, for the purposes of

interpretation of two statutes in apparent conflict, the provisions of a general statute must yield to those ofa special one. In York (Township) v. North York (Township) (1925), 57 O.R. 644 (C.A.), Riddell J.A. states the principle at pp. 648-49: It is, of course, elementary that special legislation overrides general legislation in case of a conflict -- the general maxim is Generaliaspecialibus non derogant -- see Lancashire Asylums Board v. Manchester Corporation, [1900] 1 Q.B. 458, at p. 470, per Smith, L.J. --even where the general legislation is subsequent: Barker v.

Edgar, [1898] A.C. 748, at p. 754, in the Judicial Committee. The reason isthat the Legislature has given attention to the particular subject and made provision for it, and the presumption is that such provision isnot to be interfered with by general legislation intended for a wide range of objects: Craies on Statute Law, 3rd ed., p. 317. Applying this maxim of construction, the provisions of the special statute are not construed as repealing the general statute, but asproviding an exception to the general. In the Supreme Court of Canada decision of Ottawa (City) v.

Eastview (Town), (SCC), [1941] S.C.R. 448, [1941] 4 D.L.R. 65, at p. 462 S.C.R., p. 77 D.L.R. Rinfret J. said: The principle is, therefore, that where there are provisions in a special Act and in a general Act on the same subject which areinconsistent, if the special Act gives a complete rule on the subject, the expression of the rule acts as an exception of the subject-matterof the rule from the general Act . . . [14] Both the Infants Act and the CFCSA are “special statutes”. Each deals with a narrow and well-defined subject-matter.

It might besaid that the CFCSA is less general than the Infants Act, because the CFCSA deals only with children in need of protection, while theInfants Act deals with all children. [15] Ms. Hawes, counsel for MCFD, submits that the two statutes can be reconciled by applying the phrase “as the circumstancesrequire” in

section 51 of the Infants Act. She says that the present circumstances do not require that MCFD become L.J.’s guardianbecause: (

i) child protection proceedings are now pending, with the result that MCFD can perform the duties of a guardian under theauthority of

section 47 of the CFCSA, without becoming a guardian; and (ii) there is a credible application now before the courts for theappointment of Ms. D.T. to be L.J.’s permanent guardian. [16] I think that Ms. Hawes’ submission is the only plausible way to reconcile

section 41 of the Infants Act with sections 47 and 51 ofthe CFCSA. Sections 47 and 51 manifest a clear legislative intention that, while MCFD should be empowered to exercise certainfunctions of a guardian before a continuing custody order is made, it should not become a guardian until that order is made. Thatintention can be reconciled with

section 41 of the Infants Act only by inferring that, where the child is in the care of MCFD on the date ofher parents’ death, the prevailing circumstances do not require that a new guardian be appointed (by operation of the statute)immediately. That makes sense because MCFD can exercise, in relation to a child in care, all of the powers of a guardian except toconsent to an adoption. Disposition [17] MCFD is not now L.J.’s guardian. The pending proceedings under the CFCSA and the FLA may continue in the normal course. December 8, 2021 _______________________ T.

Gouge, PCJ CORRIGENDUM - Released December 13, 2021 In the Reasons for Judgment dated December 8, 2021, the following change has been made: Paragraph [14] should read: [14] Both the Infants Act and the CFCSA are “special statutes”. Each deals with a narrow and well-defined subject-matter. It might besaid that the CFCSA is less general than the Infants Act, because the CFCSA deals only with children in need of protection, while theInfants Act deals with all children.

The Honourable Judge Gouge Provincial Court of British Columbia