Director v. A.B. and E.S. Date:, 2011 BCPC 160

Citation: Director v. A.B. and E.S. Date: 20110318 2011 BCPC 0160 File No: F 31372 Registry: Surrey 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: J.B. , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: A.B. PARENT AND: E.S. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Director: N. Rence and N. Kinsman Counsel for the Parent: J. Speed (for the Mother, A.B.) Appearing for himself: E.S. (the Father) Place of Hearing: Surrey , B.C.

Date of Hearing: March 8, 2011 Date of Judgment: March 18, 2011 [ 1 ] This is an Application filed by the Director on January 20, 2011, for an Order pursuant to Section 45 (1.1) of the Child, Family and Community Service Act (hereinafter referred to as ” the Act ”) to extend the overall time that the child is in the temporary custody of the Director until the conclusion of the court proceedings. Counsel for the mother appeared, however, had no instructions from the mother as to the Application.

The father appeared, as a self-represented party, and was not fully versed in the nature of the Application before me and therefore was unable to take any position. Background of Court Orders [ 2 ] The child, J.B., was removed at birth by the Director on [DOB]. [ 3 ] On July 16, 2009, the Honourable Judge Borowicz granted a Consent Order (with the Social Worker, counsel for the mother and the mother appearing): (

a) Pursuant to Section 35(2)(a), the Director retain custody of J.B. until a

Section 41 Order is made by the Court; (

b) Pursuant to Section 55(4) that the mother shall have reasonable access to J.B., supervised at the discretion of the Director; and

(

c) Pursuant to Section 37(1) that the hearing was to commence on August 27, 2009, to determine if J.B. is in need of protection. [ 4 ] On August 27, 2009, an Order was granted by the Honourable Judge Borowicz, pursuant to Section 69(1) (b), that the requirement to personally serve the unknown father be dispensed with for all proceedings. Of note, the Report to Court (Form

A) filed by the Director on July 9, 2009, states that the mother was engaged in a history of drug addiction, violence, transiency and prostitution, and advised the Social Worker that she “did not know who the father of her child was and disclosed it could be one of three John’s she was involved with...” [ 5 ] On November 26, 2009, a Consent Order was made by the Honourable Judge Lenaghan (with the Social Worker and the mother appearing): (

a) Pursuant to

Section 60 and 41(1)(

c) that the child remain in the temporary custody of the Director for a period of three months ending February 26, 2010; (

b) Pursuant to Section 60(3) that the requirement to obtain the Written Consent of the Mosquito Grizzly Bear Lean Man Reserve and the unknown father is dispensed with. I specifically note herein that in accordance with the Act and noting the age of the child being under the age of 5, the total time period in which the child is to remain in the temporary custody of the Director is a 12 month period, which would expire on November 26, 2010, which is in accordance with the Act . [ 6 ] On February 25, 2010, an Order was made by the Honourable Judge Borowicz (with the Social Worker and counsel for the mother appearing): (

a) Pursuant to Section 69(1)(1) that the time period for serving the mother with notice of the Director’s Application for a three month extension to a temporary custody order be shortened to February 18, 2010. [ 7 ] On March 4, 2010, a Consent Order was made by the Honourable Judge Hicks (with the Social Worker appearing and counsel for the mother as counsel and agent for the mother): (

a) Pursuant to

Section 60 and 44(3) (

b) that the Order of November 26, 2009, is hereby extended for a period of three months expiring on June 4, 2010. [ 8 ] On June 3, 2010, the Director filed the Application for the Continuing Custody Order. The Social Worker was present. The Record of Proceedings notes that the father (who appeared before me on March 8, 2011) appeared. No one appeared for the mother.

Neither counsel for the Director nor counsel for the mother, since the appearance of the father on June 3, 2010, has, as officers of the court, brought to the attention of the Court that the Order of November 26, 2009, remains in effect wherein based on the Form A information that the mother furnished to the Social Worker, the father remains as being unknown and service has been dispensed upon him. There is no Affidavit of Service on the file to date evidencing what, if any, documents that the father, who appeared before me on March 8, 2011, has been served with or received.

This is, and remains, contrary to the best interest of the child. [ 9 ] On June 17, 2010, the matter was before the Court on a Director’s remand list day. The Social Worker appeared and the father personally appeared. [ 10 ] The matter was further placed before the Court on a Director’s remand list day on June 24, 2010, and July 15, 2010. The Social Worker appeared. The father did not appear, the mother did not appear, and counsel for the mother did not appear. [ 11 ] On July 29, 2010, the matter was once again before the Court on a Director’s remand list day.

The Social Worker appeared, the father appeared, counsel for the mother appeared, but the mother did not appear. It is here that regrettably once again, I find myself absent vital information and I can only conclude that such absence is contrary to the best interest of the child. No one has amended the prior Orders in place dispensing of notice on the father and the father has, by prior Orders, been declared to be unknown. [ 12 ] E.S., as of July 29, 2010, has appeared as being the father of the child. A Family Case Conference was scheduled for September 9, 2010.

There is no pink slip affixed in the Court file to the Record of Proceedings which is done to provide evidence that all parties were aware that the Family Case Conference was scheduled for September 9, 2010, and those parties who attended the Judicial Case Manager’s office sign the slip. There is no slip in the file. The problem with this is that thereafter, a Family Case Conference was scheduled for September 9, 2010. The father did not attend. I do not know why the father did not attend. I do not know if he knew to attend the Judicial Case Manager’s office on July 29, 2010.

Even if he did not attend, particularly as a self-represented litigant, it is incumbent upon counsel for the Director and the Social Worker to ensure that the father be made aware of the Family Case Conference. Participation by the mother and the father is the key in the delivery of services in the Act and for the best interest of the child. There is no notation or any indication in the file that he was made aware of such date.

The conference then regrettably proceeded in his absence. [ 13 ] On September 23, 2010, the matter was before the Court on a Director’s remand list day and of note, the Social Worker appeared, counsel for the mother appeared, the father appeared, however, the mother did not appear. Someone, whether it is counsel for the Director or the Social Worker, was able to advise the father to make sure that he attends Court on September 23, 2010. Once again, I do not know why, however, the father did not attend the Judicial Case Manager’s office in order to

schedule the Pre Trial Conference dates and the trial dates for the Section 49(5) Application by the Director for a Continuing Custody Order. This time there is the pink slip affixed to the Record of Proceedings and the Judicial Case Manager has specifically written on such that “Dad did not attend the JCM office.” Again, because he is self-represented litigant, I do not know why the Social Worker and counsel, when they were present with him on September 23, 2010; did not ensure that he attends.

Again, I find this contrary to the best interest of the child with such that has occurred to the father. [ 14 ] In her submissions to me on March 8, 2011, counsel for the Director advised me that on September 23, 2010, the matter was also placed on the Director’s remand list to determine if the father was going to be commencing a Family Relations Act ( FRA ) action, and that

there were discussions about a possible return of the child to the father. What is troubling is that the Order dispensing of notice and service on the father remained and still does remain outstanding, and yet the Director was urging the father to commence a FRA action with the goal to return the child to him. [ 15 ] On January 20, 2011, this file was placed as an addition to the Director’s remand list by counsel for the Director. I was the presiding Judge on that day. Counsel for the Director appeared and counsel for the mother sent an agent.

The father did not appear and there is no indication as to whether or not the father was aware of the Application being filed that day as an addition on the list by the Director. The Director filed an Application for an Order, pursuant to Section 45(1.1), to extend the overall time that the child is in the temporary custody of the Director until the conclusion of the court proceedings and that such an Order be granted retroactively to November 26, 2010. The agent who appeared took no position. The father did not appear.

I do not know if the father was advised either of the Application or of the Court date, again, contrary to the best interests of the child. [ 16 ] At no time on January 20, 2011, did counsel for the Director bring to the Court’s attention that the Application for the Section 45(1.1) Order was being filed some seven weeks and six days after the expiration of the Order that was in place which expired on November 26, 2010.

Counsel for the Director acknowledges that the legal office was aware in January 2011 that the limitation period had expired as of November 2010 (but was not aware before that date that the temporary custody time period had lapsed since November 2010), and acknowledges that it was not brought to the attention of the Court when the documents were filed in Court on January 20, 2011. As the presiding Judge that day, it was only because I reviewed the history of the Orders that I saw and spoke up inquiring about the missed limitation period.

I find such practice troubling, particularly on a busy remand list day, and particularly that counsel should be bringing errors of its own or of its Social Workers to the attention of the Court when limitations are missed. I declined to grant the Order on such date and specifically advised Director’s Counsel to return in one week to speak to the matter with case law to support why such an Order was to be made.

I further advised Director’s counsel on the record on that date that if I was not sitting in the remand list on the date of January 27, 2011, I would be in the Court building in another court, and to speak to the matter before me on January 27, 2011, where I was assigned. [ 17 ] The Record of Proceedings is clearly marked in the Court file that the matter was to be heard before me, that I am seized, that it was scheduled for January 27, 2011, at 9:30 a.m. in Court 314 (the Court where I was scheduled to preside). Counsel for the Director was specifically verbally advised such while in Court on January 20, 2011.

No one attended for the Director to speak to the matter on January 27, 2011, despite myself as the presiding Judge very clearly on January 20, 2011, declining to grant the Order and directing that the matter be before me on January 27, 2011. I did so in order that a decision could be made in a timely manner.

These actions by the Director are contrary to the best interest of the child as it resulted in further delay. [ 18 ] A review of the Court file notes that a requisition was faxed to the Court Registry at approximately 4:00 p.m. on January 27, 2011, signed by counsel for the Director, to have the matter set for February 24, 2011. I do not know if the father was aware.

I am perplexed that as the presiding and seized Judge why counsel did so, why counsel did not appear before me on January 27, 2011, when specifically directed to do so, and why the matter was faxed in to be adjourned so late at the end of a day. [ 19 ] My

schedule shows that on February 24, 2011, I was scheduled to sit in the Director’s remand list day, however, knowing that the Application was filed past a limitation period, knowing that I had expressed concern on January 20, 2011, about the tardiness of the Application, knowing that I directed the matter be before me on January 27, 2011, for case law, counsel for the Director chose not to bring the matter before me as I directed that be done, and counsel for the Director chose not to have the matter brought before me any earlier but simply scheduled it on a day that I was to be in that courtroom.

I am troubled by this delay again solely on the part of the counsel for the Director which, once again, is contrary to the best interest of the child and resulted in a further delay. [ 20 ] On February 24, 2011, I was sitting and presiding in the Director’s remand list day. The matter was called and a different counsel for the Director (same office) spoke to the matter seeking the Order. I asked this Counsel if he had the case law as I had been waiting for since January 20, 2011, and none had been forthcoming.

He had not been made aware of my concerns of January 20, 2011, nor that I had sought the matter be heard on January 27, 2011. He declined to speak to the matter further and I directed that he attend at the Judicial Case Manager’s office immediately to have the matter once again specifically heard before me with submissions and case law. Again, this delay has been solely attributed to counsel for the Director and not because of the Court, the parents or court time. This is contrary to the best interest of the child.

Neither parents attended on February 24, 2011, and I am not aware if the father was made aware. [ 21 ] The matter was scheduled before me on March 8, 2011. Counsel for the Director (a third lawyer), counsel for the mother, the Social Worker and the father all appeared before me. The mother did not appear. Counsel for the mother advised the Court that he had not had communication with her, nor he had any instructions, but that he wished to remain as counsel on record.

The father appeared as a self-represented litigant and was not fully versed in why the matter was in Court and that he advised the Court that he simply wanted his child. I can understand the frustration of the father given what has transpired. The father was frustrated and given the history of how he has not been properly kept advised of court proceedings and an Order remains in place dispensing of any notice on him, I agree with his frustration and sense of abandonment. This is contrary to the best interests of the child.

Decision and Relevant Legislation [ 22 ] The Order in place in which the child is to remain in the temporary custody of the Director expired on November 26, 2010. [ 23 ] The Application to extend the overall time was not filed until January 20, 2011. [ 24 ] I am mindful of the following sections of the Act in making my decision:

Section 2: Guiding Principles This Act must be interpreted and administered so that the safety and well-being of the children are the paramount considerations and in accordance 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 rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (

d) the child’s views should be taken into account when decision 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; and (

g) decisions relating to children should be made and implemented in a timely manner.

Section 3: Service Delivery Principles The following principles apply to the provisions of services under this Act ; (

a) families and children should be informed of the services available to them and encouraged to participate in decision that affect them Note: Sections 3(

b) to 3(

e) are not applicable in the matter before me in my decision.

Section 4: 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 the child’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 a delay in making a decision.

Section 44: Extension of Supervision Orders and Temporary Orders (

a) if the circumstances that caused the child to need protection are likely to improve within a reasonable time, the director may, before the Order expires, apply to the Court for an extension of: i. a supervision order other than one made at a continuing custody hearing; or ii. a temporary custody order. (b) ------ (

c) If satisfied that the circumstances that caused the child to need protection are likely to improve within a reasonable time, the court may, in the child’s best interests: 1. ----- 2. Extend the term of the temporary custody order, but not beyond the period permitted under

section 45. 3. ----

Section 45: Total period of Temporary Custody 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 not exceed, from the date of the initial order until the child is returned to the parent 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 that order. (b) ---

(c) ---

(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 best interests to do so.

Section 49: Continuing custody hearing and orders 5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that: (

a) the circumstances that led to the child’s removal will improve within a reasonable time; or (

b) the parent will be able to meet the child’s needs. [ 25 ] Counsel for the Director acknowledges that their Application should have been brought earlier and that it was filed late. Counsel for the Director acknowledges that they knew in January 2011 that the limitation period had passed in November 2010 but were not aware that it had lapsed from November 2010 to January 2011. The time period as permitted under the Act for the period that the child can remain in the temporary custody of the Director expired on November 26, 2010.

Counsel for the Director knew that the time period had passed, however, no Application was filed in the Court until January 20, 2011, some 7 weeks and 6 days past the limitation period, and even when that Application was filed in the Court on the remand list day as an addition, counsel for the Director appearing that day did not bring to the Court’s attention the fact that the Application and Order being sought that day was some 7 weeks and 6 days past the limitation period.

I find it distressing that counsel was aware that the limitation period had passed and that it was not brought to the attention of the Court, and it was only because the Court noticed the entered Order and calculated the expiration of the time period that it was addressed in Court on January 20, 2011. That is contrary to the best interests of the child to know that such time period has passed and was not brought to the attention of the Court. The father did not appear that day and I do not know if the father was even served with the Application.

Again, the other difficulty that remains is that, despite the father who is self-represented is now acknowledged to be the father of the child, the Director has not taken any steps to rescind the Orders which remain in place dispensing of any further notice on the father and in declaring the father to be unknown. [ 26 ] No party appearing before me has given me any case law to guide me, particularly to support the position taken by the Director, which I find surprising.

The cases which I rely upon herein, therefore, are those I have sourced myself. [ 27 ] The Social Worker gave evidence in support of the Director’s Application that the Order for a Section 45(1.1) Order be granted and be granted retroactively. I acknowledge that the Court has the discretion to grant such an Order and to do so retroactively. The difficulty is that this evidence was not given to the Court on January 20, 2011.

When the Court asked counsel for the Director for case law and evidence to support the Application being sought on January 20, 2011, counsel was not prepared and so the Court specifically ordered that the matter be returnable on January 27, 2011, in order to ensure a timely decision for the best interest of the child.

I specifically spoke to counsel for the Director and advised counsel that I was to be seized of the matter and which Court I was sitting in on that day. [ 28 ] On January 27, 2011, counsel for the Director did not appear before me to speak to the matter and, in fact, counsel for the Director faxed in a requisition at 3:58 p.m. to adjourn the matter to February 24, 2011, which was a Director’s remand list day when I was scheduled to appear.

That was specifically contrary to what I had directed to occur. [ 29 ] I was very much aware that a hearing date for June 2011 was set and specifically wished to deal with the Application in a timely manner. Counsel adjourned the matter on January 27, 2011, without my knowledge or consent as the seized Judge. When asked why the matter was then further delayed until February 24, 2011, counsel for the Director submitted that this was the first day that I was sitting in the Director’s remand list day. While true, this is unacceptable for practice by counsel.

At anytime, counsel for the Director could have and should have had the matter brought before me for a decision, which was the very purpose of the January 27, 2011 hearing, but did not do so. That further delay continuing since January 20, 2011, must be borne solely by counsel for the Director. [ 30 ] On February 24, 2011, a different counsel for the Director appeared and he was not fully aware that on January 20, 2011, I had directed another counsel for the Director to have the matter before me with case law on January 27, 2011.

He then adjourned the matter to the Judicial Case Manager where it was set before me on March 8, 2011, with a third counsel for the Director speaking to the matter on March 8, 2011. [ 31 ] I find it troubling that not only was counsel for the Director aware that the Temporary Custody Order expired on November 26, 2010, that no timely filing of an Application for an extension occurred until January 20, 2011, but when that filing occurred on January 20, 2011, counsel did not bring to the attention of the Court their lapse in filing and the missing of a limitation period, and from January 20, 2011 to March 8, 2011, a series of adjournments solely on the part of counsel for the Director has now further delayed a decision.

None of these delays are attributable to the parents nor scheduling in the Court system. I find this very troubling. [ 32 ] The evidence of the Social Worker was not heard until March 8, 2011. The Social Worker testified that the hearing scheduled for June 2011 is for a Section 49(5) Order. She testified that the mother of the child is presently actively using drugs and is pregnant with her third child. The child who is the subject of these proceedings was removed at birth.

The Social Worker acknowledged in her testimony that the father (who appeared before me on March 8, 2011) is indeed the father of the child and that the Ministry is working with the father to return the child to the father. The father is seeing the child 5 days per week.

There was neither evidence nor any explanation as to why the Orders in place dispensing of notice on the father still being declared as unknown have not been amended nor why there is not any Order in place acknowledging that the father, who appeared before me on March 8, 2011, is the father and must be included properly in these proceedings. [ 33 ] When asked why the Application was filed late, the Social Worker testified that she is busy with emergencies and she has a caseload of 32 files.

She testified that her own system does not diarize or bring forward limitation periods and that a new system is “being designed”. The Social Worker was not aware if the father had commenced a Family Relations Act action nor had she inquired of the self-represented father if he had done so since the initial discussions of September 23, 2010, despite the father presently seeing the

child 5 times per week. [34] The Father appeared before me on March 8, 2011, as a self-represented litigant. He has been and is seeing the child 5 times perweek as arranged through the Ministry. When asked, he advised the Court that he commenced by himself a Family Relations Act actionin this Registry on September 23, 2010. Counsel for the mother had been served by himself in September 2010; however, for reasonsthat I cannot grapple with, counsel for the mother who appeared before me on March 8, 2011, has not filed any reply.

I advised thefather that he should seek legal advice through Legal Aid or Duty Counsel as the mother’s time period in which to file any documents hassignificantly passed and that he is in a position to proceed without further notice to her.

He was not aware and the significant time lagfrom September 2010 to March 2011 with counsel for the mother not filing any documentation in the Family Relations Act file is veryconcerning. [35] The self-represented father was not aware that he had to serve the Director (who at the time of his filing in September 2010 hadtemporary custody of the child) and while in Court on March 8, 2011, I directed the father and the Social Worker (or alternativelycounsel for the Director) jointly attend at the Family Registry counter immediately for him to serve the court papers on the Director andhe was going to do so.

I am troubled that the Ministry has been aware from at least September 2010, and in fact earlier, that the father isindeed the father of the child and despite the requirements of the Act that Sections 4 requires that the best interests of the child beconsidered and the quality of the relationship the child has with a parent, no one, including the Social Worker, followed up to ensure thatthe father had taken any steps to commence his Court action, despite the Social Worker arranging that the father see the child 5 times perweek. I am also mindful of Section 4(1)(

g) which is the effect on the child if there is a delay in making a decision. The delay insecuring any FRA Order has transpired from September 2010 to the present. The self-represented father appeared before me truly andsincerely felt confused and overwhelmed with the process. Counsel for the mother has failed to file any reply. The Social Worker hasfailed to follow up with the self-represented father to even determined, since September 23, 2010, if he commenced a FRA action and, ifso, the status of such.

All of this is contrary to the best interests of the child. [36] While there is to be due consideration granted to the Social Worker that it is not their responsibility to ensure that a partycommences a separate Court action, I find it very distressing that neither counsel nor the Social Worker had kept in propercommunication with the father about the Court process, that no one had endeavoured to rescind the Orders in place dispensing of noticeon the father and that he was declared as being unknown, and that the Social Worker testified that she does not diarize limitation periods. [37] Counsel for the Director submitted to the Court that their own office does not diarize limitation periods and that it is theresponsibility of the Social Worker to do so.

However, the Social Worker testified that they have no system in place to do so and that sheis busy with files. No one from the Ministry, whether a Social Worker or legal counsel, then, takes responsibility for ensuring that filesare properly diarized and maintained, that limitation periods are tracked, and that is a troubling and significant error on the part of bothcounsel and the Ministry.

An entity that is responsible for ensuring the best interests of the children of this province, particularly whenthe Ministry has temporary custody of a child, absolutely must be mindful, have protocol in place, and take full responsibility for therequirements of the Act, particularly limitation periods. [38] Counsel for the Ministry submits to this Court that the matter of limitation periods and extensions did not “become a live issue”until the decision of Director v T.D. and M.G., a file of the Provincial Court of British Columbia, Surrey Registry, which was a decisionof the Honourable Judge Raven of August 12, 2010 (hereinafter referred to as “T.D.”).

I strongly disagree that this was the triggeringdecision in August 2010 that made limitation periods and extensions “a live issue”. [39] Limitation periods exist for a reason. There are high expectations placed upon a mother and a father to follow through withprogrammes as directed by the Ministry in many files. If they do not do so, they are held accountable. There are high expectationsplaced upon this Court to ensure that the best interests of the child are paramount and that the legislation of the Act is upheld.

I thereforefind it very troubling and a distinct lack of accountability that counsel for the Director does not diarize limitations and states that it is theresponsibility of the Social Worker to do so and that in turn, the Social Worker states that she does not diarize limitation periods. Thesepeople are the custodians of this and many other children. [40] There is a requirement of accountability by all and that means no exceptions to counsel for the Director nor to a Social Worker. Yes, mistakes and inadvertent errors occur.

This was not inadvertent and the lack of follow through in a timely manner has only addedfurther to the delay. As of the date of my decision today, this matter is now almost four months past the limitation period. This was alack of accountability and a lack of follow through that must be solely born by the Ministry, whether by counsel or the Social Worker orboth. This is extremely troubling. I am also not convinced, as counsel for the Director submits, that the matter of Section 45(1.1) timeperiods became a “live issue” with the decision of T.D. (supra) of August 2010.

There are a number of decisions prior to such expressingconcern by our Courts about the importance of limitation periods involving this Act. [41] There is the June 1997 decision of the Honourable Judge Klaver in the Port Alberni Registry in the Provincial Court of BritishColumbia, that being The Child, Family and Community Services Act and J.M., C.M., A.M., and B.M.M. (hereinafter referred to as J.M.).

In that case, counsel for the Director advised the Court that the 12 month period of the children in the custody of the Director expired inMay 1997 with the matter being brought to the attention of the Court in June 1997. Klaver, J granted the

Section 45 Order, taking intoconsideration the best interests of the children and to ensure that the children are the paramount consideration and being guided by such,he granted the Order as the hearing had already commenced and been underway, and he had already heard some 4 days of evidence, butnot all of the evidence. That decision was appealed and in July 1997, Mr. Justice Blair upheld Klaver, J’s decision and cited Sections 2,45(1.1), and 66(2) of the Act. In dismissing the appeal, Mr.

Justice Blair noted that the hearing had already been well underway withfour days of evidence and noted that while the application of time limits should not be mandatory, it would be “strongly directory, to beobeyed to the fullest extent possible, consistent with the best interests of the child.” (Page 4, Paragraph 12 in relying upon H.W. v Children’s Aid Society (1996) (NS CA), 25 R.F.L. (4th) 82.) [42] There is the Memorandum of Decision of Judge A.

Rounthwaite of October 27, 1998, in the Surrey Registry in the matter of TheChild, Family, and Community Service Act v R.V., C.V., and A.V. (hereinafter referred to as “R.V.”), wherein she relied upon Mr. JusticeBlair’s decision in J.M. concluding that, in taking into consideration the best interests of the children, she had the jurisdiction to grant aSection 45(1.1) Order past the twelve month period. There is the 2002 decision of the Honourable Judge T. Dohm in the Kamloops

Registry of The Child, Family and Community Service Act and R.H.D.F., J.W.F., and C.S.F. (hereinafter referred to as R.H.D.F.),wherein the Director sought a Section 45(1.1) Order. Counsel for the Director in R.H.D.F. characterized the failure to file theapplication for an extension past the 12 month period as “an administrative oversight” (Page 3, Paragraph 4).

In the matter before me,there is no “administrative oversight” in that counsel for the Director has acknowledged that they were aware that the time limit hadpassed, counsel delayed in filing the Section 45(1.1) application; counsel for the Director was not prepared to address the matter onJanuary 20, 2011, nor did counsel bring the lapsed time period to the attention of the Court; counsel failed to address the matter whendirected to do so on January 27, 2011; counsel was not able to address the matter on February 24, 2011, and the matter was finallyspoken to by counsel on March 8, 2011.

None of those can be characterized as “administrative oversight”.

Counsel was alive and awareof the missed time of November 26, 2010, and was always aware of the lapsed time, but it was not addressed in an efficient manner,which troubles me as expectations are placed on a mother and a father, so, too, similarly, one should expect that counsel for the Directorand the Social Worker, at a minimum, have in place good practice to diarize matters and not simply bring a matter some 7 weeks and 6days past a limitation period, thereafter adjourn it for weeks by their own choice and then blanket submit that it was not until the 2010decision of T.D. that Section 45(1.1) Orders became a “live issue”.

When one is the temporary custodial party of a child there, too, onthe said person or persons, are expectations of reasonableness and the best interest of the child. I concur with the reliance by Judge T.Dohm in R.H.D.F. wherein

Section 2 as the guiding principle is important as a starting point in that the “safety and wellbeing” of thechild is paramount. I am also mindful for the matter before me that

Section 2(

a) reminds us all that “a family is a preferred environmentfor the care and upbringing” of the child and that the “responsibility for the protection” of the child “rests primarily with the parents”. [43] In applying

Section 2(

a) to the matter before me, it remains troubling that the father has now been identified and has beenidentified since the summer of 2010 and, at the time of this matter in March 2011, is seeing the child 5 times per week. However, no onehas taken the proper steps to rescind or amend the Orders in place wherein the father is deemed to be unknown and no one has taken thesteps similarly with the Orders in place dispensing of service and notice. Those steps are contrary to assisting and being guided that thefamily is the preferred environment by still excluding E.S.

Similarly, there is an absence of Affidavits of Service or evidence of what, ifany, ongoing documentation has been served or notice given to the father, E.S., which I conclude, again, is contrary to the guidingprinciple of

Section 2(

a) of the Act. [44] I am mindful of

Section 2(

g) of the Act wherein we are guided to ensure that decisions relating to a child or children are to be“made and implemented in a timely manner.” I acknowledge such and am mindful that this child has been removed since birth in 2009,however, a timely decision should not be made at the expense of not ensuring that both the mother and the father are given the same dueconsideration as parents of this child. [45] To date, court documentation in the file focuses on the mother, her transient life in the sex trade and her use of drugs.

There is nomention of the father, save and except the initial documentation wherein there is reliance upon the mother that she says the father isunknown, such word is accepted and he is then excluded. At this time he sees his child five times per week. It was clear to me at theMarch 8, 2011 hearing before me that the self-represented father, E.S., is confused, frustrated and lost in this system. I don’t blame him.

He has received little to no guidance that I can ascertain from the pleadings, from filed documentation and from evidence I heard fromthe Social Worker. [46] The FRA application of the father, E.S., was filed in a timely way in September 2010. No one has filed a reply and they have orshould have done so. He is in a position months ago to proceed and no one has assisted or guided him to proceed doing so. It is clearthat he relies heavily upon the Ministry in trusting that the right thing is being done. He needs a FRA Order in place. He is self-represented.

He needs to have the benefit of legal counsel to assist him both by applying for Legal Aid or retaining legal counsel in theFRA matter. He needs the benefit of legal counsel to guide and assist him in the Ministry matter. To do so is in the best interest of thischild who sees his father, E.S., five times per week and to do so meets the spirit and guiding principles as set out in

Section 2. Similarlyas with the decision of Judge T. Dohm in R.H.D.F., the hearing had not commenced. In the matter before me, the hearing for the Section49(5) matter does not commence until June 2011. While I balance and am mindful that a June 2011 hearing date is not in the fardistance, there is no assurance it will complete in the allocated time, thus possibly (and I stress only possibly) will have a continuationdate, but what troubles me is that in the matter before me the limitation expired November 26, 2010. Counsel knew that.

No documentwas filed until January 20, 2011, and then by a series of decisions made by counsel for the Director, it was further adjourned to March 8,2011, closer to the hearing date of June 2011. That pushes the Court perhaps to simply admonish counsel for less than stellarappreciation of the best interest of this child and be forced to grant the Order because of the June 2011 hearing date. I simply cannotallow such to occur.

All of the delays herein were completely avoidable and the further delay upon delay was compounded solely by thedecision of counsel and those delays are contrary to the best interests of the child, they are prejudicial to the father who is in almost dailycontact with his child. [47] In expressing concern about how this matter has come before me, I am mindful that Judge T. Dohm similarly expressed suchfrustration and relied upon the decision of J(

D) v British Columbia (Superintendent of Family and Child Services) (BC SC), 46 R.F.L. (3d) 277 wherein the Honourable Mr. Justice Parrett stated at Page 290, Paragraph 49: I do not wish to be taken as saying that fundamental matters in the Act, such as time limits, hearing requirements and notice requirements,are in any way to be treated flexibly by the Superintendent. On the contrary, such matters are to be strictly obeyed and where they arenot, the courts will not condone such failure by the Superintendent to observe the statutory requirements of its authority.

However, thedesire of the Court to censure possible lapses in meeting statutory requirements through a finding of loss of jurisdiction must be weighedagainst the consequences of such a finding. [48] The Section 49(5) hearing is scheduled for June 2011 for a Continuing Custody Order.

The father at the time of all other Ordersin place was still deemed to be unknown with service dispensed. [49] I am mindful that in balancing the best interests of the child, in being mindful of the family as a preferred environment, and inbeing mindful of the safety and well being of the child, the decisions must be made in a timely manner; and in being mindful of thestatutory requirements of the Act, that all needs to be delicately balanced. In R.H.D.F., the Court did find that it had the jurisdiction andauthority to make a Section 45(1.1) Order, but declined to do so. This was upheld at appeal.

In the appeal at the Supreme Court ofBritish Columbia court level, the Supreme Court, through Mr. Justice Blair, rendered Reasons on February 26, 2003. Mr. Justice Blair

makes specific note of the “frustration” and “live concern” that Judge T. Dohm noted in his Reasons regarding conduct of the Director and cited at Page 6, Paragraph 11: This case has been attended throughout with delay...The judgments that I have referred to make it plain that

section 2(

g) of the Act must be given meaning. ....the failure to apply in a timely way for an order extending the time in temporary custody, speaks more of neglect than oversight. [ 50 ] I conclude and rely upon Judge T. Dohm’s comments and echo that such comments are most definitely applicable in the matter before me. Timely attendance and appreciation that there should not be delay has not been fully appreciated by the Director.

I am troubled that this even remains so as of March 8, 2011, when the Social Worker testified that she has no system in place to monitor limitation periods, and counsel echoed that they are working on putting a system in place, and that counsel stated that Section 45(1.1) Orders being not automatically granted only became a “live issue” since the 2010 decision of Judge Raven in T.D . I am troubled. That, to me, speaks to a lack of appreciation of the spirit of the Act and a lack of comprehension of the utmost importance in remaining focussed on the family unit and more so on the child. [ 51 ] Each and every

Section of the Act must be carefully considered when the best interests of a child and the removal of a child from one or more of his or her parents has or is occurring. I am mindful that a Section 49(5) continuing custody hearing is scheduled. I am mindful of the need to protect children, mindful of the best interests particularly as set out in

Section 4 and mindful of the overall guiding principles set out in

Section 2. I am mindful that it remains troubling that steps have not been taken to ensure that the father, E.S., is recognized as such and Orders in place dispensing of service and notice on him and Orders finding the father to be unknown have not been amended.

I am mindful and concerned that I am extremely limited as to what documentation the father, E.S., has been served with and how much he has been apprised and kept in the loop by the Social Worker regarding the actual court proceedings. [ 52 ] While it is not incumbent upon the Social Worker at anytime to render legal advice, I am troubled that the father, E.S., appeared before me on March 8, 2011, truly confounded and perplexed by what was transpiring.

At a very minimum since November 26, 2010, delays have been solely attributable to the Director and there seems to be no sense of serious appreciation that the delays are prejudicial to the child in not acting in a reasonable time period for the Section 45(1.1) Order and that the Act requires that matters be dealt with in a timely manner. These are actual factual conclusions that I can find from the facts presented to me and are not mere assumptions. The father is presently seeing the child five days per week.

The evidence from the Social Worker gave me evidence about the actions of the mother and how her actions are at this time a protection concern. There was nothing presented to me in her evidence that supported protection concerns regarding the father, so any denial of the Order sought is not, in my finding, prejudicial to the child. Should the Director have grounds, the Director can always re-remove. I am very troubled by the delays herein and Judge T.

Dohm summed similar concerns at Paragraph 25 of his Reasons when he stated: The intrusive nature of this type of proceeding requires the Director to be genuinely concerned about compliance with the statute. I have given this case all consideration that I could in the time available to me. I considered the law, I have considered the history of the case, its duration, and I conclude that to make the Order sought in this case would only operate to encourage further omissions. [ 53 ] I am mindful of my own decision of March 24, 2010, of Director v N.M. and M.M. regarding two children.

I was in the midst of a CCO trial. The matter commenced in June 2009. Counsel did not book sufficient time and the matter had a continuation date of November 2009. Again, regrettably all counsel under-booked the time required for the trial and continuation dates were booked before me in March 2010. It was not until we were nearing the end of the trial that it was I who brought to the attention of all counsel (Director, mother and father) that the time period for the Temporary Custody Order had expired.

I found it troubling then and I remain to find it troubling that it was the Court who points out to counsel that the time period had expired. I expressed concern in N.M . to all counsel that I lacked jurisdiction to continue as the time period had lapsed in December 2009 and had I continued on and made a CCO, it very well could have been challenged that the time period for temporary custody lapsed in December 2009 and that I had no jurisdiction to make any Orders of a CCO. [ 54 ] Counsel for the Director made a verbal application to extend the time and seek a Section 45(1.1) Order.

In N.M ., the application was opposed by parents’ counsel. In citing Director v R.V., C.V. and A.V ., it was found that the Court does have the jurisdiction under Section 45(1.1) to extend the time periods prescribed under

Section 45, even if the application to extend is done after the expiration of the time period. In N.M ., I granted the Order because I found not to do so would be severely prejudicial to the two children, one of whom is in special needs. The trial commenced in June, 2009, there were continuation dates of November 2009 and further continuation dates of March, 2010. I did, however, express concern that the Court had to raise the matter of the expired time period and that counsel for the Director needed to be more cognizant of limitation periods.

In granting the Section 45(1.1) Order in N.M., I also was mindful that the parties were awaiting the preparation and production of an expert report regarding the child with special needs that required a significant time period for the child to see the specialist, which bore directly on the best interest of the child. In the matter before me today, no hearing has commenced. No reports are outstanding. [ 55 ] I am also mindful of the decision of the Honourable Judge Raven of August 12, 2010, Director v T.D. and M.G ., Surrey Registry (hereinafter referred to as T.D .).

That matter commenced in February 2010, with dates in February, May, June and August, 2010, wherein Judge Raven was in the midst of a

Section 49 trial. In the matter before Judge Raven, she brought to the attention of the parties that the application before her filed by the Director was pursuant to Section 49(4) or (5), but in actual fact, it should have been filed pursuant to Section 49(10), which in and of itself was a significant error on the part of counsel filing the documentation and being in the midst of a hearing.

The application for the time period in which the children would be able to remain in the temporary custody of the Director expired in February 2009 and no application was brought by counsel for the Director to extend such before Judge Raven and the Director’s case was closed at trial, which was a fifteen month time period after the time period had expired. The Director sought to amend the application to a Section 49(10) application.

That was carefully considered by Judge Raven and the application was denied and a mistrial was declared. [ 56 ] Counsel in the matter before me submits that in T.D ., the comments of Judge Raven were obiter as it pertains to Section 45(1.1). While true in that she declared a mistrial, she does spend the time to review

Section 45 and comments on the Director’s application to retroactively extend the maximum period of time the children may remain in the temporary custody of the Director. She, too (as do I),

accepts this Court has the discretion and jurisdiction to consider an application to extend the time and to make any such Order retroactively. In T.D ., that time period had lapsed some 15 months. In commenting, she considered Sections 2 and

Section 45 of the Act and the best interests of the children. [ 57 ] As in the matter before me, the children in T.D. had a connection with family members and saw their father regularly. In the matter before me, the father sees the child five times per week. There was no evidence on the part of the Social Worker that was contrary to the best interest of the child regarding the father. The evidence expressed concern about the mother. The father has commenced a FRA action in September 2010 and no one has filed a reply, therefore he is in a position to seek the relief that he seeks.

In the matter before me, any delays that have occurred since November 2010 have not been on the part of Court scheduling to bring an application for a Section 45(1.1) Order. Counsel for the Director acknowledges that they were aware of the time period and aware that it had lapsed, but did not attend to the filing or seeking of an Order in a timely manner and then in January 2011, when asked for case law to support such, counsel delayed the matter to March 2011, none of that delay was on the part of Court scheduling from November to March.

I rely upon the T.D . decision wherein, similar to the matter before me, Judge Raven comments on Page 15, “There is no reasonable explanation for the Director’s conduct which amounts to more than temporary inadvertence in this case.

Allowing the Director’s Application to extend time in the circumstances of this case would in my view render Section 45(1) of the CFCSA meaningless, and encourage the Director’s representatives to ignore it. …there are various remedies and tools the Director has available to ensure the children are safe even if the children are not in the Director’s custody pursuant to a Court Order….For these reasons, I decline to exercise my discretion to extend the maximum period of time [the children] can remain in the temporary custody of the Director.” These are powerful comments for which I concur and are applicable in the matter before me. [ 58 ] In reviewing and carefully considering the evidence that I heard from the Social Worker in support of a Section 45(1.1) Order, I am mindful that there was nothing derogatory stated of the father in the evidence.

The Social Worker did say that the mother is actively using drugs and is presently pregnant. There was no evidence that the child is in danger if with the father. There was no evidence of safety concerns of the child with the father. I am mindful and have carefully considered all of the Sections of the Act that I have cited herein and throughout. I am concerned that the severity and importance of a Section 45(1.1) Order has not been actively addressed by the Director or the Social Worker.

I am not satisfied that the evidence I have heard meets a satisfactory evidentiary burden of the Director as it pertains to both the mother and the father. I am not satisfied with the manner in which the father, who sees the child 5 times per week, has been left out in much of these proceedings and no one has taken steps to rescind the Orders in place excluding him. There needs to be a serious recognition of accountability, particularly with limitation periods.

No one from the Ministry, whether counsel or Social Worker, diarize limitation periods, which is troubling when the Ministry has temporary custody of the child. [ 59 ] Accordingly, after giving very careful consideration to the Act and the relevant Sections as cited herein, case law, and the specific facts before me in this particular matter, I am not prepared to grant a Section 45(1.1) Order. [ 60 ] The following Order is made: (

a) The Application for a Section 45(1.1) Order is dismissed and the pre trial and hearing dates are struck; (

b) The Order of the Honourable Judge Borowicz of August 27, 2009, specifically as it pertains to the father as being unknown and for dispensation of service and notice upon him, is set aside; (

c) The Order of the Honourable Judge Lenaghan of November 26, 2009, wherein he granted an Order dispensing of the written consent of the unknown father was granted is set aside [ 61 ] These are my Reasons. _________________________________________ The Honourable Judge Kimberley Arthur-Leung Provincial Court of British Columbia