S.D. and S.B. v. Director Date:, 2016 BCPC 38

Citation: S.D. and S.B. v. Director Date: 20160204 2016 BCPC 0038 File No: F122124 Registry: Sechelt 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: T.R.M. , born [DOB] BETWEEN: S.D. and S.B. APPLICANTS AND: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE S. MERRICK

Counsel for the Director: A. Lunny Counsel for the Applicants: J. Wilson Place of Hearing: Sechelt , B.C. Date of Hearing: February 4, 2016 Date of Judgment: February 4, 2016 [ 1 ] THE COURT: T.R.M. is the five-year-old son of S.D. and S.B. [ 2 ] C.C. is the paternal aunt of T. She and her husband, K.E., have been caring for T. for a number of years now. [ 3 ] Pursuant to the order of Judge Rogers on May 15th, 2013, T. has been in the continuing care of the Director. [ 4 ] The parents applied for and were granted permission in accordance with

section 54 of the Act to apply to set aside the continuing custody order. That matter is set for hearing to commence March 18th of this year. [ 5 ] This is an application by Ms. C. and Mr. E. to be added as parties to that proceeding. They are represented by counsel at this application, and counsel is available for the dates set for the hearing. [ 6 ] The Director does not oppose the application that Ms. C. and Mr. E. be added as parties. The application, however, is opposed by Ms. D. and Mr.

B. [ 7 ] An issue has arisen as to whether the authority to add a party, or in this case to add the parties, is pursuant to section 39(4) of the Act as Ms. C. and Mr. E. argue, or whether it would be pursuant to

section 54 of the Act . [ 8 ] If this was an application by Ms. C. and Mr.

E. to set aside the continuing custody order, then I agree I would be bound by the decision of The Director of Child, Family and Community Service and K. , 2003 BCSC 742 , which I accept as strong authority for the proposition that the application would be denied. [ 9 ] But this is not an application to set aside the custody order, so I am of the view that therefore section 39(4) is an appropriate consideration. [ 10 ] It is not necessary for me to decide today, but I am cognizant of the fact that if the application was granted, would that not then allow Ms. C. and Mr.

E. to apply to set aside the continuing custody order. That is not the issue in front of me today, and that is best left for another day. [ 11 ] I agree with Director's counsel that the discretion to add a person or persons as a party should be used sparingly, and only if the matter demands it for the proper resolution of the issues under consideration. See J.L. and Director of Child, Family and Community Service , 2001 BCSC 1604 . [ 12 ] Based on the submissions of counsel, the significant consideration is this.

There was a mediation held in which the parents agreed to the Director's plan, essentially that the continuing care custody order remain in effect, and that Ms. C. and Mr. E. proceed with an adoption of T. They obviously then later changed their minds and proceeded with the application.

Director's counsel says that they have made a decision not to rely on that. [ 13 ] I am the seized judge of this file and have dealt with previous applications, and although I was not the judge at the CCO hearing, I do have some familiarity with the file. [ 14 ] The fact that the Director is not intending to raise the mediated agreement is within the Director's discretion.

The Director described the Director's position as taking a holistic approach, and that is within the Director's discretion. [ 15 ] I do not put significant weight on the fact that there was a mediated agreement, and I would not use a mediated agreement to prevent the application being granted if, in fact, the other statutory requirements for setting aside the order have been made.

In my view, and to this extent, I agree with the Director's position that the fact there was a mediated agreement is really of little weight or of concern in this application. [ 16 ] At the end of the day, I am not persuaded that there is anything that Ms. C. and Mr. E. can add to these proceedings if they are named as parties. [ 17 ] The legislative intent is clear to limit the involvement of foster parents in court proceedings.

The case authorities are supportive of that position, and I must be satisfied at the end of the day that the matter demands, for the proper resolution of the issues under consideration, that the parties seeking to be added be added. They will testify. They can present their full knowledge. They can be examined and cross-examined. But given the binding authority that says it should be used sparingly and that the matter demands it, I am not persuaded the matter demands it. [ 18 ] Ms. C. and Mr. E. will be witnesses. They will give testimony. Consequently, the application pursuant to section 39(4) -- and I

am of the view that is the proper

section to consider this application -- is dismissed. They will not be added as parties. (RULING CONCLUDED)