Director v. G.M.B. and E.D. and G.W. Date:, 2016 BCPC 54

Citation: Director v. G.M.B. and E.D. and G.W. Date: 20160210 2016 BCPC 0054 File No: F-7498 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: C.E.M.G , born [omitted for publication] C.E.W.D. , born [omitted for publication] Z.D.G-W. , born [omitted for publication] H.G.P.G-W. , born [omitted for publication] L.T.G-W. , born [omitted for publication] D.G. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: G.M.B. MOTHER AND: E.D FATHER AND: G.W. FATHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.J. WRIGHT

Counsel for the Director: K. Whonnock Counsel for the Mother, G.M.B. , by teleconference: S. Davidson Counsel for the Father, E.D. : M. Griffith-Zahner Counsel for the Father, G.W. , by teleconference: B. Crampton Place of Hearing: Prince Rupert , B.C.

Date of Judgment: February 10, 2016 INTRODUCTION [ 1 ] In these child protection proceedings two individuals, who are the natural fathers of three of the six children taken into care by the Director, applied for an order to have those three children added as parties, with the sole intent of that order being that, as a result, the Director will then arrange for legal counsel to be appointed for each child. [ 2 ] The mother supports the fathers' applications, while the Director is opposed. [ 3 ] A third natural father, the father of the youngest of the six children, takes no position to the applications by the other two natural fathers.

BACKGROUND [ 4 ] I pause to note that while in these oral reasons for judgment I have set out the full names of the parties, the children and others, that if this decision is transcribed then it will be revised to preserve their anonymity. To save time, I am not spelling out the names of individuals and place names that were referred to, the correct spellings will be provided if this decision is transcribed. [ 5 ] If I refer to sections of the statute, including the Child, Family and Community Service Act , RSBC

(1996) Chapter 46 (the " Act ") I may choose to only refer to the headings and

section numbers themselves, and if so will not read the entire provision into the record. [ 6 ] Finally, for ease of reference, and not to be informal or familiar, I have assigned labels to the parties and the children. The mother of all of the six children is G.M.G. (the "Mother"). There are three fathers of the six children. The children, from oldest to youngest, together with their respective fathers are as follows: 1. The father, E.D. (“E.D.”): (

a) C.E.M.G., born [omitted for publication], age 17 ("C.E.M.G."); and, (

b) C.E.W.D., born [omitted for publication], age 15 ("C.E.W.D."). 2. The father, C.W. (“C.W.”): (

a) Z.D.G-W., born [omitted for publication], age 13 ("Z.D.G-W."); (

b) H.G.P.G-W., born [omitted for publication], age 10 ("H.G.P.G-W."); and, (

c) L.T.G-W., born [omitted for publication], age 5 (“L.T.G-W.”). 3. The father, G.W. (“G.W.”): (

a) D.G., born [omitted for publication], age 9 months (“D.G.”). [ 7 ] On October 29, 2015, after the six children were apprehended on or about September 5, 2015, E.D. filed a Family Law application, Prince Rupert, number 4701, where he sought to have an existing child support order against him for C.E.M.G. and C.E.W.D. terminated and arrears cancelled (the "E.D.

FLA action"). [ 8 ] On November 25, 2015 the Mother filed a reply opposing E.D.’s claim and made a counterclaim for child support. [ 9 ] On October 29, 2015, C.W. filed a Family Law application where he sought to have the existing care order in favour of the Mother varied, so that the children he was the father of, reside with him full-time (the "C.W. FLA action"). [ 10 ] On November 18, 2015 the Mother filed a reply opposing C.W.'s claims, and made a counterclaim for child support. [ 11 ] An order has been made that the E.D. and C.W.

FLA actions are to be heard at the same time as these child protection proceedings. [ 12 ] E.D., for C.E.M.G. and C.E.W.D., and C.W. for Z.D.G-W., have each made interim applications in these proceedings to have these children added as parties (the "party applications"). As mentioned, the Director is opposed. The third father, G.W., takes no position.

[13] The Director is seeking a three months temporary custody order, pursuant to s. 41(1)(

c) of the Act. [14] On November 12, 2015 the presentation hearing was held, and by consent, pursuant to s. 35(2)(

a) of the Act, all six childrenwere ordered to remain in the care of the Director. No evidence has yet been called in the protection hearing stage of the proceedings. [15] Each of the party applications set out that the relief sought was to have counsel appointed.

However, during the hearing of theparty applications, further to concerns expressed by the court about the authority to make such orders, and with the consent of theDirector, each of the applications was revised and amended to delete the claim to have counsel appointed, and to replace it with a claimto have each of the three children added as parties, pursuant to s. 39(4) of the Act. [16] Despite that amendment the stated purpose of the party applications is in fact for counsel to be appointed for the children.

Counsel for the Director and for E.D. and C.W. all agree that if a child is added as a party that it is expected that the Director will, givenits internal procedures and policies, arrange for and pay for legal counsel for that child. [17] The party applications came on for hearing on December 10, 2015. There was no oral evidence called.

The only affidavitevidence was an affidavit filed December 10, 2015, from the Mother (the "Mother's affidavit"). [18] Counsel for the Director and for E.D. and C.W. agreed to proceed without the need for any further evidence. [19] The court was also provided with two case authorities, as follows:

a) Director of Child, Family Community Service v. A.A.K. and A.C.K., an unreported decision of Judge M. Church of the ProvincialCourt of British Columbia, at Williams Lake, B.C. dated May 19, 2015.

b) Director of Child, Family Community Service v. T.T., 2008 BCPC 114 , a decision of Judge Pothecary of the ProvincialCourt of British Columbia. [20] Following submissions, my oral decision was adjourned to today's date, February 10, 2016. POSITION OF THE PARTIES [21] E.D., the father of C.E.M.G. and C.E.W.D., submits that given the ages of these two children, C.E.M.G. is 17 and C.E.W.D. is15, it is important that their voices be heard, and having counsel appointed for them will ensure that they are able to actively participatein the proceedings.

He said that it is in their best interests that they have counsel so that their specific concerns will be fully taken intoaccount. [22] C.W., the father of Z.D.G-W., age 13, adopts the submissions of E.D. In addition, he directed the court to the provisions of s. 2of the Act, wherein the guiding principles in the Act are set out. He submits that it is essential that Z.D.G-W. have counsel so that all ofthe relevant factors set out in s. 2, and elsewhere in the Act, can be taken into account by the court.

C.W. also referred to the Mother'saffidavit and says that there is evidence that the children are being pressured by their mother about where they should live, and that isanother reason why they should have counsel. [23] The Mother's position is that while she does not admit that she is pressuring any of the children, given their respective ages,C.E.M.G. and C.E.W.D. would benefit from having counsel.

With regards to Z.D.G-W., she points out that in her affidavit she has givenevidence that he has certain medical issues, namely Epilepsy, and has low comprehension abilities, and therefore she is concerned that hewould not be able to understand the court process, or properly instruct counsel. [24] The Director is opposed to the applications of E.D. and C.W.

The Director says that C.E.W.D. is also a special needs child, heis blind in one eye, and therefore there are concerns whether he, or Z.D.G-W., for the reasons outlined by their Mother, can properlyinstruct counsel. [25] Further, the Director says that there are important practical considerations to be taken into account. There are already fivecounsel involved in these child protection proceedings, adding additional counsel would create a logistical nightmare, the Directorargued which in turn will cause significant delays in concluding these proceedings.

ANALYSIS AND DISCUSSION [26] The provisions of the Act that were referred to by the parties are s. 2, with the heading "Guiding Principles," and s. 37(4) [sic],with the heading "Parties to a Proceeding". [27] In Director and Child Family Community Service v. A.A.K. and A.C.K., the Director sought to have a 12-year-old child, then inthe care of the Director, added as a party to the proceedings, so that counsel could be appointed for the child.

Amongst other things, thechild was refusing to see her parents and was refusing to access services being offered to her by the social worker assigned to her. [28] In A.A.K, Judge Church referred, amongst others, to the decision of Judge Hutchinson of the British Columbia Supreme Court inJ.L. v. (Director of Child, Family and Community Services) 2001 BCSC 1604 , 2001 BCJ 2838. [29] At paragraphs 13 to 16 of A.A.K., Judge Church referred in detail to the J.L. decision, and said as follows: [13] A person who requires the status of a party under the Act is entitled to notice of every hearing; is entitled to be heard and callwitnesses at the hearing; may apply to rescind an order under s. 54; has the right to attend a case conference; is entitled to disclosure ofthe records in the possession of the Director; is entitled to apply for defined access, and their consent must be obtained if a consent orderis to be valid." [14] The justice went on to say at paragraph 10 that:

Section 39(4) gives the court additional discretion at "any hearing" to order a person to be a party.

This discretion, according to the scheme of the whole section, should only be used sparingly and, I conclude, only if the matter before the court demands it for the proper resolution of the issues under consideration. [15] He went on to find in that case, that the Provincial Court judge had erred in exercising his discretion to add the grandparents as parties as there was no evidence before him to indicate that the best interests of the children could be furthered by the addition of the grandparents as parties or that the issues before the court could only properly be adjudicated upon if they were given that status. [16] It is clear from this case law that adding a party under s. 39(4) , particularly regarding a child whom the proceedings was commenced, is a discretion that should only be exercised sparingly and in accordance with the principles set out in the J.L. case. [ 30 ] I accept, and adopt as correct, the legal principles set out by Judge Church as applying to the issues before this court in the party applications.

In A.A.K. Judge Church dismissed the Director's application to add the 12-year-old child as a party, and stated the following at paragraphs 17 and 18. [17] I am not satisfied on the evidence before me that the matter before this court demands that “A” be added as a party for the proper resolution of the issues. In the vast majority of cases, including this one, the resolution of issues in a protection hearing do not require that the child, who is the subject of that protection hearing, be added as a party. [18]

Section 2(

d) of the CFCSA provides that the safety and wellbeing of children are the paramount considerations in accordance with a number of enunciated principles, including that the child's views be taken into account when decisions relating to the child are made. There are many ways that a child's views can be put before the court so that they can be taken into account in accordance with that principle. [ 31 ] Judge Church concluded that there was nothing preventing the Director, other than its own internal policy, from providing "A" with independent counsel.

She further held, at paragraph 19 that: The fact that the Director requires this child to have party status in order to fund legal counsel is not, in my view, an appropriate reason for me to exercise my discretion under s. 39(4) . [ 32 ] In the case at bar, it is the fathers of the three children, not the Director, who apply for the order to have the children added as parties to the proceedings, pursuant to s. 39(4) .

However, in my view, the legal principles that Judge Church outlined in A.A.K. remain applicable. [ 33 ] The fathers, E.D. and C.W. submit that C.E.M.G., C.E.W.D. and Z.D.G-W. must have counsel appointed for them, so that the court at the protection hearing would be able to take into account their best interests.

Further, they argue that the issues in these proceedings cannot be properly adjudicated upon by the court without them having counsel. [ 34 ] Based on the evidence available to me, I am not satisfied that I should exercise my discretion to have any of these three children added as parties. [ 35 ] The circumstances of this child protection case are not that unusual.

In that regard, although it was not referred to by counsel at the parties’ proceedings hearing, I have reviewed the amended Form A report of the Provincial Court of British Columbia, filed October 19, 2015 (the "Form A report"). [ 36 ] The Director alleges that while in the care of the Mother these three children were and are in need of protection. The Director says that the Ministry of Children and Family Development has been involved with the children since 1999, and over that time there have been 27 negative incident reports.

These reports relate to the "mother's substance abuse and ability to parent; domestic violence, and the general neglect of the children." [ 37 ] There are similar complaints set out in the Form A report with regards to each of the three fathers. Of course, evidence will have to be called at the protection hearing before the court is able to make a determination on any of these issues or claims. [ 38 ] The only evidence I have been provided is the Mother's affidavit, wherein she sets out that C.E.M.G. has changed her mind about whether she wants to live with her, or with E.D., or at the foster home.

Also in that affidavit she says that C.E.W.D. has been indecisive of who he wants to live with, either the Mother or E.D. She also deposes in that affidavit that Z.D.G-W. does not want to live with C.W., but does not explain why. [ 39 ] This type of dispute is not at all unusual in child protection hearings, and in any event, these circumstances by and of themselves are not sufficient, in my view, to warrant having these children added as parties so that counsel may be appointed. [ 40 ] I assume that the Director will be calling the assigned social worker, together with other witnesses.

Each of these witnesses will be subject to cross-examination by the three fathers’ counsel and the Mother's counsel. [ 41 ] I would also note that the Act provides a number of ways in which evidence of the child's best interests can be adduced, including, but not limited to, s. 66 , 67 and 68 . I also note that an order has been made that the E.D. FLA action and the G.W. FLA action are to be heard at the same time as these proceedings.

In those FLA proceedings, these fathers could also seek, pursuant to s. 122 of the Family Law Act , to have a views of the child report prepared, which in turn could be utilized in these proceedings. [ 42 ] Overall I am not satisfied, again based on the evidence before me, that any of these three children need to have counsel appointed in order for their best interests to be taken into account, and to properly adjudicate the matters expected to be present before the court at the protection hearing.

I therefore decline to exercise my discretion to order that any of these three children be added as parties, pursuant to s. 39(4) of the Act .

[ 43 ] In closing, I would also add that I am certainly alive to the very real potential of significant delays that would flow from additional counsel being made part of these proceedings, and that is a factor which, although not determinative, I have taken into account in reaching my decision in this matter. [ 44 ] The youngest three children are ages 10, 5, and 9 months. Given their young ages, it is in their best interests that these proceedings be concluded as soon as possible, and having counsel appointed for the older three children would seriously jeopardize the speedy and expeditious outcome of these matters. [ 45 ] I note s. 2 (

g) of the Act , which states: Decisions relating to children should be made and implemented in a timely manner. [ 46 ] I also note s. 45(1), total period of temporary custody, which in

summary provides that, absent a court order granting an extension, the maximum time in care of a child under the age of five is 12 months, and for children between five and 12, the maximum is 18 months. CONCLUSION [ 47 ] The applications of E.D. and C.W. to have the children, C.E.M.G., C.E.W.D. and Z.D.G-W. added as parties, pursuant to s. 39(4) of the Act , are dismissed. (REASONS CONCLUDED)