L.S. v. S.S., 2003 BCSC 428

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.S. and S.S. v. The Ministry of Children and Family Development et al. 2003 BCSC 428 Date: 20030320 Docket: L022712 Registry: Vancouver Between: L.S. and S.S. Petitioners And The Ministry of Children and Family Development, and The Director, Fraser Region Respondents And The Attorney-General for British Columbia Respondent And The Attorney-General for Canada Respondent Before: The Honourable Mr. Justice Lowry Reasons for Judgment Counsel for the Petitioners: M.

Dunnaway Counsel for the Respondents, The Ministry of Children and Family Development, and The Director, Fraser Region: J. Wingham Intervenor: D. Boyd Dates and Place Hearing: March 3 and 4, 2003 Vancouver, B.C. [ 1 ] Lz is a ten year old child who suffers from Fetal Alcohol Effect. She was placed in the foster home of L.S. and her husband S.S. in 1994. A continuing custody order made in 1997 vested guardianship of her person in the Director of the Fraser Region of what is now the Ministry of Children and Family Development. Various foster home agreements have been made between the Director and the S.s.

Since 1998, the agreements have been with only L.S. The S.s petition for a broad range of declaratory and injunctive relief against the Ministry and the Director in particular to enforce what they say are Lz’s rights with respect to living in their home.

The issue to be decided now is confined to a determination of what, if any, standing the S.s have to bring the petition they do. [ 2 ] The background to this unusual application is somewhat convoluted, but the facts necessary to an understanding of the relief sought can be briefly summarized. [ 3 ] In the fall of 1999, when Lz was seven, the Director required that S.S. leave the foster home if Lz was to continue to live there, and then that he have no contact with her, because her sister, Ls, who was six years old, disclosed that he had, on one occasion when she was visiting in the home in August, touched her sexually.

Ls’s disclosure led to an investigation by the Director and by the police. S.S. was prosecuted and tried before the Provincial Court at the end of 2000. He has always denied any misconduct and he was found not guilty of the offence with which he was charged. L.S. has been wholly supportive of her husband throughout, maintaining that he is not capable of sexually abusing a child. He has, subject to a recent reorganization, been employed as a drug and alcohol rehabilitation counsellor by the Ministry throughout. [ 4 ] The Director’s investigation included assessments of both Lz and Ls by Dr.

Mary Korpach, the consulting psychologist at the Suspected Child Abuse and Neglect Clinic, Surrey Memorial Hospital. Her reports were issued in November 1999. Her conclusion was that there was reason to believe that S.S. had engaged in sexual misconduct with Ls, and from what Lz said during the assessment about

her relationship with S.S., concerns were raised in that regard with respect to her as well. It was suggested that the dynamics of the foster home were preventing her from dealing with emotional issues with which she was struggling. Lz was then removed from the home as permitted by the terms of the foster home agreement. She lived in four other foster homes before being returned to L.S. in June 2000.

L.S. agreed that if Lz were returned to her home, S.S. would not live in the home and that he would have no contact with Lz. [ 5 ] Nonetheless, given that S.S. had been acquitted of the offence with which he was charged, he and L.S. began, in the spring of 2001, to press the Director (i.e., the social workers involved) to permit S.S. to resume living with his wife and Lz. He was asked to undergo a forensic psychological assessment which he agreed to do. [ 6 ] Before that was undertaken, however, a further assessment of Ls was made by Dr.

John Yuille, a psychologist specializing in determining the credibility of the accounts of sexual abuse given by children. His report supported the opinion of Dr. Korpach. [ 7 ] The Director engaged Dr. Conrad Bowden, a clinical, consulting, and forensic psychologist, to conduct an assessment of S.S. to determine whether he posed any risk to children and to evaluate his parental capacity. Dr. Bowden conducted interviews of S.S. as well as both Lz and Ls. In October 2001, he issued a comprehensive report.

The thrust of what he concluded is contained in the following paragraph: The family of L., S., and Lz has undergone an incredible disruption. It is in Lz’s best interests to have contact with her father [S.S.]. His ability to parent has never been in question and I do not believe him to be at risk, that is any more than any other parent is at risk, to sexually abuse Lz. I see no reason from my assessment why the family should not be reunited. [ 8 ] The Director did not accept Dr. Bowden’s assessment and refused to disclose his report to the S.s for some time.

However, while there is some conflict in the evidence, it appears that it was following receipt of the report that S.S. was permitted to have contact with Lz. The Director permitted him to have one ninety minute access visit outside the home each month (increased to two each month in December 2002), providing the visits were supervised by someone other than L.S. [ 9 ] Dr. Rebecca England, a psychologist, was engaged to consider Dr. Bowden’s report and provide comment. In January 2002, she issued a report that was critical of the basis on which Dr. Bowden had reached his conclusions about S.S. Dr.

Bowden was then given the opportunity to respond, and in doing so, he defended his assessment and explained why, in his view, Dr. England’s criticism was unjustified. [ 10 ] It is clear that the Director and the social workers involved continue to believe that S.S. touched Ls sexually in August of 1999 and that there is some continuing risk that he would engage in similar misconduct if he were permitted to live in the home.

It is equally clear that L.S. does not believe that happened and support of her husband throughout has caused concern that she would not be sufficiently diligent about her husband’s contact with Lz to protect her. [ 11 ] When a copy of Dr. Bowden’s report was disclosed to the S.s, substantial parts of it were deleted. Understandably, that created suspicion and gave the S.s reason to believe that the social workers were not acting fairly toward them and Lz.

This proceeding was commenced and the whole of the report was then eventually produced. [ 12 ] One additional complicating factor is that, N.P., Lz’s natural mother, has commenced proceedings in the Provincial Court to have the continuing custody orders that pertaining to Lz as well as to Ls, and one younger daughter, set aside in an effort to have the three children returned to her. She lives in Terrace.

The proceedings have not yet progressed very far, and while the Director would consent to the S.s applying to become parties to those proceedings, with a view to having all matters of custody and access relating to Lz determined in one forum, the S.s maintain that, as a matter of jurisdiction, they cannot obtain the relief they seek before the Provincial Court and will not participate in the proceedings there. [ 13 ] What S.S. and L.S. seek is some form of relief that would permit S.S. to return to the home and preclude the Director from terminating the foster home agreement as, on its face, can be done unilaterally should the Director consider Lz should not continue to live where she does. [ 14 ] The S.s seek neither the custody nor the guardianship of Lz, and they say that what they want cannot be regarded as a matter of access.

Those are all matters that fall within the jurisdiction of the Provincial Court under ss. 54 and 56 of the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 . Rather, they seek to achieve S.S.’s return to the home by having this court enforce what they say is the right Lz has to have her interests best served by living with the only father she knows, this being a right to be nurtured according to community standards for which s. 70(1)(

a) of the Act provides. Lz’s right is one they say the court can enforce even though it is being pursued in a proceeding they bring in their own names and to which Lz is not a party. [ 15 ] S.S. and L.S. maintain that their standing to petition as they do is found in the Act. They say it provides both for foster parents to apply with respect to access ( ss. 54 and 56 ) and for the review of the Director’s care of wards (s. 70).

They say the Act cannot be seen as delegating unfettered power to the Director to determine all matters relating to the care and custody of children in care as the preceding legislation was seen to do. They rely on what was said in a recent decision of this court: British Columbia (Director of Family and Child Services) v.

P.K. and T.K. , 2002 BCSC 1762 at ¶ 53 : Clearly the present Act cannot be seen as intended to delegate unfettered power to the Director to determine all matters relating to the care and custody of children in care, as the [preceding legislation] was perceived by the Court of Appeal in [ Perteet v. British Columbia (Superintendent of Family and Child Service ] .

[16] In Perteet v. British Columbia (Superintendent of Family and Child Service), (BC CA), [1988] B.C.J. No.245, the Court of Appeal held that under the Family and Child Services Act, R.S.B.C. 1980, c. 11, which was then in force, fosterparents did not have standing to make application for custody or access because that statute was an exclusive and comprehensive coderelating to the care and custody of children in need of protection and it made no provision for an application by foster parents for custodyor access.

It was said at pp. 8—9 that where it came to the court‘s attention that a child who was a permanent ward of theSuperintendent was in need of protection, it would exercise its inherent parens patriae jurisdiction to protect the child, but thatjurisdiction could not be exercised to substitute the court’s jurisdiction for that of the Superintendent in determining what is in the bestinterests of the child. [17] What was said in Perteet was recognized by this court in the P.K. and T.K. case to be inapplicable to the standing of foster parentsto make application for access under the Child, Family and Community Service Act which replaced the legislation in force when Perteetwas decided.

Section 56 of the present Act was held on its wording (“any other person may apply”) to grant standing to foster parents toapply for access in the Provincial Court. However, I can see no basis on which it can be said that s. 70 provides for the review of theDirector’s care of wards by this or any court as the S.s contend. The provision they rely on specifically is as follows: 70(1) Children in care have the following rights: (

a) to be fed, clothed and nurtured according to community standards and to be given the same quality of care as other children in theplacement; … [18] Section 70(1), contains a lengthy (ss. (a)-(o)) enumeration of the rights of children in care, and no comparable provision is to befound in the predecessor legislation. Unlike s. 56, however, it contains nothing that could be said to give a foster parent standing topetition the court.

Nor is standing to enforce a child’s s. 70(1) rights by court application found elsewhere in the Act. [19] The current legislation may not be intended to delegate unfettered power to the Director in respect of all matters relating to the careand custody of wards. Foster parents may now apply for access where the Director has not seen fit to grant it, and they may have otherrights that were not recognized before the current Act was passed.

However, that does not mean that the Act gives to foster parents astanding to petition in their own names more broadly for a review of the Director’s decisions pertaining to what is in a child’s bestinterest. They simply have no standing to do that.

If it were otherwise, virtually every decision taken by the Director that bore upon thebest interests of a child in care could be challenged through court application by a party to a foster home agreement or, it would seem, byany other person. [20] For a brief period, there was legislation that provided for complaints about the breach of the s. 70(1) rights of a child in care to bemade to what was known as the Children’s Commission.

Under s. 10 of the Children’s Commission Act, S.B.C. 1997, c. 11, a child, thechild’s parent, and any other person representing the child were designated persons who could make a complaint to the Commission. The S.s have cited two decisions made under that legislation where complaints were made by foster parents on the basis that the s. 70(1)rights of children in care were not being observed: In the Matter of Two Complaints of Alleged Breaches of the Rights of M.A.H.

July27, 1997 (Child and Family Review Board) and In the Matter of the Complaint relating to an Alleged Breach of Rights of CB andCMB, Complaint Case No. PDOO-O8 Children’s Commission Tribunal Decision, June 1, 2000. The standing of the foster parentswould appear to have been clear and was, in any event, not questioned in either case.

The legislation has now been repealed and is ofsignificance only as illustrative of the kind of statutory provision required to give foster parents standing to initiate proceedings for theenforcement of the s. 70(1) rights of a child in care. [21] In my view, the underlying reasoning in Perteet remains applicable. The current legislation is, like its predecessor, an exclusive,comprehensive code that vests in the Director the determination of what is in the best interests of children in his care save whereprovision may be expressly made for the exercise of that discretion to be questioned.

In saying that, I recognize that because the rights ofa child are enforced through proceedings taken in the child’s name by his or her legal guardian, it does appear that the current legislationprovides for rights the breach of which is without remedy as long as the Director remains the guardian of the child. It may be that aremedy for the breach of such rights can only be sought against the Director once a continuing custody order has ended (see s. 53(

a) ofthe Act) and the Director has ceased to be the guardian of the child. [22] S.S. and L.S. then say that the court should exercise its inherent parens patriae jurisdiction. It is common ground such jurisdictionis to be invoked only if it can be said that the Director has acted capriciously or in bad faith in a manner harmful to Lz. The S.s say thatin continuing to prevent S.S. from living in the home where Lz lives with L.S., after receiving Dr. Bowden’s report, the Director hasacted in bad faith and that he has caused, and continues to cause, harm to Lz.

They say they have made out a prima facie case that thecourt must now explore as suggested in Perteet. [23] I am, however, unable to find in the evidence that has been adduced anything which could be said to amount to bad faith on thepart of the Director or the social workers who have been involved.

There is no reason to suggest that continuing to preclude S.S. fromliving in the foster home where Lz lives, and minimizing the access she has to him, has been motivated by anything other than theconcern to be expected in the most unfortunate circumstances that have prevailed. [24] No authority is cited in support of the S.s’ contention as to what could amount to bad faith on the part of the Director. He relies, inparticular, on two decisions of the Court of Appeal where allegations of bad faith were considered in the context of actions for damagesagainst the Superintendent of Family and Child Services: G.(A.) v.

British Columbia (Superintendent of Family & Child Services)(1989), (BC CA), 38 B.C.L.R. (2d) 215 and D.(B.) v. British Columbia (Superintendent of Family and Child

Services) (1997), 30 B.C.L.R. (3d) 201 . On that authority, the Director and the social workers involved could be said to have exercised bad faith only if they failed to carry out their duty to consider the matter or if the conclusion they reached was so unreasonable as to show a failure to carry out their duty. Certainly, errors in judgment do not constitute bad faith. [ 25 ] The evidence shows there to have been an ongoing consideration of the matter. The Director’s unwillingness to accept and act on the opinion of Dr.

Bowden cannot amount to conduct amounting to bad faith, particularly when contrary views, originating at the time of Ls’s disclosure, have been expressed which the Director could not ignore. It was his duty to consider Dr. Bowden’s opinion, as he did; it was not his duty to accept it. The actions of the Director and the social workers involved have, as already indicated, been driven by an honest belief in the truth of Ls’s disclosure.

There can be no bad faith in the steps that have been taken to protect Lz when such have been thought to be necessary. [ 26 ] Consistent with what was said at p. 11 in Perteet , those who would seek to have the court’s parens patriae jurisdiction invoked bear a heavy onus in demonstrating that such should be exercised to override a decision made by the Director. In my view, the S.s’ case falls far short of meeting that burden. No prima facie case has been made out. [ 27 ] I conclude then that the relief sought by S.S. and L.S. in this proceeding cannot be granted. Their petition is dismissed. “P.D.

Lowry, J.” The Honourable Mr. Justice P.D. Lowry