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British Columbia (Children and Family Development) v. S.C., 2023 BCPC 60 (CanLII)

Date:
2023-03-14
File number:
F9353
Citation:
British Columbia (Children and Family Development) v. S.C., 2023 BCPC 60 (CanLII), <https://canlii.ca/t/jwmn6>, retrieved on 2024-03-28

Citation:

British Columbia (Children and Family Development) v. S.C.

 

2023 BCPC 60 

Date:

20230314

File No:

F9353

Registry:

Abbotsford

 

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.T.K.D., born [omitted for publication]

 

 

BETWEEN:

 

DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE

APPLICANT

 

AND:

S.C.

PARENT

  



     

ORAL RULING

OF THE

HONOURABLE JUDGE J.A. HARRIS

 

 

 

Counsel for the Director:

K. Hedman

Counsel for the Parent:

S. Rauch

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

February 9, 2023

Date of Judgment:

March 14, 2023

 

                                                                                                                                                           

                                                                                                                                                           


Introduction

[1]         S.C. wants to cancel a Continuing Custody Order that was made by this Court on July 6, 2004.  That Order was made with respect to her child, T.T.K.D.  The application is brought under s. 54(1) and Rule 8(6) of the Child, Family and Community Service Act (”CFCSA”).  With respect to the application under s. 54(1) of the CFCSA, this is the first stage of that application and Ms. C. asks for permission to have the matter heard at a full hearing.

[2]         This is not a typical application to set aside a Continuing Custody Order.  The Child in question was an Indigenous child who tragically passed away in 2020, at the age of 17, at a group home while in the care of the Director.  If he were alive today, he would be 20 years old.

[3]         The Director is opposed to the application and argues, among other things, that Ms. C. does not have standing to make this application, that she does not meet the criteria for setting aside the Order under rule 8(6) and that this Court does not have the jurisdiction to cancel the Order in question.

[4]         The parties agree that in 2004 Ms. C. ceased to be T.’s legal guardian as a result of a Continuing Custody Order.  Regardless of that, she was and always will be his biological parent.  She played an important role in his life and I honour and acknowledge that.  My decision with respect to the legal principles before me on this application is just that, a decision about the law.  My decision is not a judgment of Ms. C. as a person.  It is not a judgment about the value of T.’s life.  It is not a commentary on how much she loved and cared for T.  I am very sorry for her loss.

Issues

[5]         The issues raised by the parties are:

1.   Is Ms. C. a “party to the proceeding” as set out in s. 54 and s. 49 of the CFCSA?

2.   If Ms. C. is a party, have the circumstances that caused the Court to make the Continuing Custody Order changed significantly?

3.   Does this Court have jurisdiction to cancel the Continuing Custody Order under s. 54 given that T. is deceased; and further, that if he were alive he would be 20 years old?

4.   Does Rule 8(6) apply?

Background

[6]         The evidence on the hearing was limited and consists of:

1.   An affidavit of Jennifer Cripps, a paralegal employed by counsel for the Director;

2.   The facts set out in Ms. C.’s application filed August 19, 2022 which were admitted by the Director for the purposes of this hearing; and

3.   Brief viva voce evidence given by Ms. C.

[7]         T. was born at Abbotsford Regional Hospital on [omitted for publication].  He was removed from Ms. C. the following day by Xyolhemeylh Child and Family Services.  That was the local delegated Indigenous child protection agency.  That agency is now known as Fraser Valley Aboriginal Children and Family Services Society.  Ms. C. testified that when T. was born, a “worker” simply came in and told her they were taking him from her.

[8]         The Director filed a Presentation Report on January 9, 2003.  There were court appearances on that document on:

         January 9, 2003;

         January 21 2003;

         February 4, 2003;

         March 18, 2003;

         June 17, 2003;

         June 24, 2003;

         September 23, 2003;

         December 23, 2003; and

         January 6, 2004.

[9]         An Application for a Continuing Custody Order was filed March 9, 2004 and there were appearances on that document on:

         March 9, 2004; and

         March 23, 2004.

[10]      On March 30, 2004, Judge Gulbransen made an order for substitutional service on Ms. C.  That order permitted the Director to serve Ms. C. by personally serving J.D., T.’s paternal grandmother, and by posting an ad in a local [omitted for publication] newspaper.  A copy of a certificate of service demonstrating that a copy of the application for the Continuing Custody Order was left with J.D. is attached to the affidavit of Ms. Cripps as Exhibit A.  A newspaper ad which is not dated but is on the same page as ads announcing events in May and July 2004 is attached to that affidavit as Exhibit B.  I find that the ad would have appeared between March 30 and May 31 of 2004 given the dates observable in the other ads.

[11]      There were further appearances on the Application for Continuing Custody on:

         May 11, 2004;

         June 1, 2004.

[12]      On July 6, 2004 neither of T.’s parents attended court.  Judge Gulbransen made a Continuing Custody Order in their absence.  Ms. C. testified on this hearing that she was not aware of the “legal status” of T. although she did not explain exactly what she meant by that or what timeframe she was referring to.  She also testified that she was never personally served with the Director’s application for the Continuing Custody Order.  She said that she lived in [omitted for publication] during the time that the court proceedings were ongoing.  She further said she did not become aware of the Continuing Custody Order until after he had passed away.  Ms. C. told me that she thought T. was under her care when she had him with her.  I do not have any evidence about when or where or how frequently T. lived with her.  Ms. C. told me that she tried to get support, which I understood to mean from the Director, and did what she could to take care of T. and I believe that.

[13]      Sadly, T. passed away at his group home in September of 2020.  At the time he was in the care of the Director under the Continuing Custody Order.  Ms. C. says that she has been unable to obtain information about the circumstances surrounding his death.  She filed this application to set aside the Continuing Custody Order on August 19, 2022.

1.   Is Ms. C. a “Party to the Proceeding” as set out in s. 54 and s. 49 of the CFCSA?

[14]      Ms. C. takes the position that the legislation can be interpreted to allow me to conclude that she is a party under s. 54.  Her argument is that the legislation permits a parent who was present at the hearing giving rise to the Continuing Custody Order to be a party but it does not explicitly say that if the parent was not there they cannot be a party under s. 54.  She argues that the Director is asking me to interpret this section too narrowly and seeking to unduly limit the definition of a “party” for the purpose of s. 54.  She also says that the cases referred to by the Director are distinguishable and argues that I should consider using s. 39 and s. 49 retroactively to make Ms. C. a party at the Continuing Custody hearing.

[15]      The Director takes the position that Ms. C. was not a party to the proceeding when the Continuing Custody Order was made and therefore does not have standing to make an application under s. 54.

[16]      The CFCSA contains a framework that determines who is a party to a Continuing Custody Order hearing and who can seek to set aside a Continuing Custody Order.  Section 49 sets out very clearly that if a parent appears at the start of a Continuing Custody Order hearing they are entitled to be a party at that hearing.  Section 54 allows the Director or a party to a proceeding where a Continuing Custody Order was made, to ask the court for permission to cancel the Continuing Custody Order.

[17]      This Court has previously stated that in order to be a party at a Continuing Custody Order hearing a parent must have appeared at that hearing.  This Court has also clearly stated that in the case of parents applying to set aside a Continuing Custody Order, they would have to be present at the original hearing to be an applicant on an application to set the Continuing Custody Order aside.  (See I.(A.)(Re), 1996 BCPC 2 at 3 and W.(S.) v. British Columbia (Director of Family and Child Services), 2001 BCPC 33 at para. 28).

[18]      Ms. C. urges me to broaden the definition of a “party” and conclude that she is a party even though she was not at the Continuing Custody Order hearing because she did not have knowledge of the hearing.  However, in W.(S.), the applicant father found himself in the same circumstances and this court explicitly stated that if he was not a party at the Continuing Custody hearing he could not have standing under s. 54.

[19]      Counsel for Ms. C. says that this has become an issue of access to justice.  Ms. C. is out of time for an appeal or a judicial review and she says that she needs a way to apply for a remedy that allows her to make decisions about her son’s remains and personal property and ascertain the facts surrounding his death.

[20]      That may very well be the case.  But that does not mean that I can or should get creative with statutory interpretation.  It does not mean that I can or should try to make this case fit within the parameters of a section of the CFCSA that it clearly does not fit within.  It does not mean that I can or should ignore prior decisions of this Court.

[21]      In Imperial Oil v. Jacques, 2014 SCC 66 the Supreme Court of Canada reaffirmed at para. 47:

The modern approach to statutory interpretation requires that the words of an Act be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” …

[22]      When I bear those principles of statutory interpretation in mind, I am unable to accept Ms. C.’s submission that she is a party as defined in s. 54.  Section 49 (2) and (3) clearly set out who can be a party at a Continuing Custody Order hearing.  The CFCSA is a closed code and all of my powers in child protection proceedings come directly from that Act (see F.B. v. Director (NWACFS) et al., 2015 BCPC 101 para. 40).  Together those sections of the CFCSA expressly state that if a parent attends at the commencement of a Continuing Custody Order hearing they are entitled to be a party at the hearing and to have notice of subsequent hearings, including under s. 54.  On the facts before me, I find that Ms. C. was properly served under s. 2 pursuant to the Substitutional Service Order of Judge Gulbransen.  She did not attend the hearing and was not entitled to be a party, nor was she a party, at the Continuing Custody Order hearing.

[23]      There is nothing in the CFCSA that permits me to retroactively make Ms. C. a party to the concluded Continuing Custody hearing.  Section 39(4) gives the Court discretion to make someone a party at any hearing.  That section speaks to adding parties to a hearing that is currently before the Court.  In S.D. and S.B. v. Director, 2016 BCPC 38, foster parents applied to be added as parties to an application to set aside a Continuing Custody hearing.  The court declined to exercise its jurisdiction to do so noting that the legislative intent limits the involvement of foster parents in CFCSA proceedings.  In that case, a parent met the definition of a party and was able to bring the application.  Those circumstances are different than the circumstances before me because there was already an application to set aside a Continuing Custody Order that they could be added to.

[24]      Ms. C. seeks standing – I can’t add her as a party to the Continuing Custody hearing retroactively.  Nor can I add her as a party to an application to set aside the Continuing Custody Order when she is the one seeking to set it aside.  Even if I did have the jurisdiction to add her as a party retroactively, I would decline to exercise my jurisdiction to add her pursuant to s. 39(4) because the legislative intent is clear in s. 49 and s. 54 that a parent needs to be present at the Continuing Custody hearing in order to apply to set the Continuing Custody Order aside under s. 54.

[25]      Because Ms. C. was not a party at the Continuing Custody Order hearing she is not “a party to a proceeding in which a continuing custody order was made” as required by s. 54(1) and she does not meet the requirements for bringing an application under s. 54.  There is nothing in s. 54 that retroactively permits this Court to make Ms. C. a party.  The CFCSA is clear, the case law is clear.  She does not meet the definition of a party.

[26]      I have reviewed and considered the applicable Federal Legislation, An Act Respecting First Nations Inuit and Metis (“ARFNIM”) and also heard some brief submissions from counsel today in respect of that legislation.  I have also considered two Provincial Court decisions that have concluded that ARFNIM applies to CFCSA matters (see First Nation A. v. A.B., [2020] B.C.J. No. 2279; British Columbia (Director of Child, Family and Community Service) v. A.D.R., [2021] B.C.J. No. 1580).  I have also heard submissions with respect to the Director and R., 2022 BCPC 15.  Both counsel acknowledge, and I agree, that the Federal Legislation has relevance to CFCSA matters and in particular, assists with respect to applying the best interest test in respect of Indigenous children as well as promoting cultural continuity, cultural preservation and equality.  But there is nothing in the Federal Legislation that changes my analysis with respect to ss. 39, 49 and 54.

[27]      I am mindful of the importance of reconciliation as referred to in the calls to action offered by the Truth and Reconciliation Committee.  I am also mindful of their findings with respect to the overrepresentation of Indigenous children in care and the experiences of those children while in care.  I acknowledge the importance of access for justice for all citizens, including Indigenous Canadians.  T.’s death at such a young age is surely a tragedy, the death of any child would be.  I recognize the loss Ms. C. has suffered and the tremendous emotional pain she has felt both before and after his death.  But this Court is a statutory court and I gain all of my legal powers from statutes and case law.  I cannot bend the law to make it fit a particular situation.

[28]      I conclude that Ms. C. does not have standing to bring an application under s. 54 of the CFCSA and I dismiss her application under s. 54 on that basis.

2.   If Ms. C. is a Party have the Circumstances that Caused the Court to make the Continuing Custody Order Changed Significantly?

[29]      Even if I found that Ms. C. was a party as defined in s. 54 I would dismiss the application at the permission stage on the basis that the evidence before me does not establish that the circumstances that caused the Court to make the Continuing Custody Order have changed significantly.

[30]      The test at the permission stage is to “summarily cull applications brought without any prospect of success” (see C.L. v. British Columbia (The Director of C.F.C.S.), 2004 BCSC 172 at para. 6).

[31]      Through her counsel, Ms. C. says that this application does not concern her desire to revisit who will care for T. or her desire to become his guardian.  Instead, she says that the application concerns what happened in the past.  She submits that T. was subject to the Continuing Custody Order without her knowledge.  She says that at a full hearing under s. 54 the court would hear about Ms. C.’s lack of notice with respect to the proceedings as well as what happened at T.’s birth.  Ms. C.’s counsel also told me that at a full hearing she would argue that the court had lost jurisdiction over T. as a result of procedural errors that were made before the Continuing Custody Order was made.

[32]      Counsel for Ms. C. submits that the change of circumstances in this case is that Ms. C. did not receive proper notice of the Continuing Custody Order proceedings; and further submits that if she had received notice things would have been different.  I was also advised, in slightly different words, that the change in circumstance is that Ms. C. did not hear about the Continuing Custody Order until after T.’s death when she reviewed the court record with a lawyer.  Simply put, she says the change in circumstance is that now she knows about the Continuing Custody Order and now she knows that it was made after an alleged loss of jurisdiction.

[33]      Assuming the Court has jurisdiction to hear the s. 54 application and assuming that the applicant is a party, this is a summary hearing where the applicant seeks permission to apply to cancel the Continuing Custody Order.  Permission hearings are meant to weed out applications that do not have any “prospect of success” and the only factor to be considered at this stage is whether circumstances that caused the court to make the Continuing Custody Order have changed significantly (see: C.L. v. British Columbia (The Director of C.F.C.S.), 2004 BCSC 172 at paras. 6 and 7).  The onus is on the applicant to demonstrate a “realistic chance of arguing that there has been a significant change in circumstances that caused the original order to be granted” and I am not permitted to consider the best interests of the child at this stage (see: C.L. at para. 9).

[34]      In G.F.T. v. British Columbia (The Director of Child, Family and Community Service), 2005 BCSC 1195, the BC Supreme Court stated that at this stage permission to apply to cancel a Continuing Custody Order should only be granted “if the circumstances that caused the court to make the Continuing Custody Order had changed significantly”.  “Changed significantly” has been held to mean there is something new and different that did not exist at the Continuing Custody Order hearing.  A s. 54 application is not a rehearing of the Continuing Custody Order proceedings.  (See paras. 10 and 19.)

[35]      In Ms. C.’s case that significant change in circumstance test is not met.  There is no evidence or even submissions as to what the circumstances were that caused the Continuing Custody Order to be issued.  There are transcripts from previous proceedings in the court file.  However, they were not referred to or relied on by the Applicant on this application and they had not been reviewed by counsel for the Director at the time of the hearing.  The only materials relied on by Ms. C. were her application and her brief viva voce evidence.

[36]      With respect to Ms. C.’s argument that the change in circumstance is that she only heard of the Continuing Custody Order after T. passed away and in reviewing the court record for the first time found this issue.  I agree that this is a change in circumstance but it is not a change in the circumstances that caused the Continuing Custody Order to be made.

[37]      With respect to Ms. C.’s argument that the Continuing Custody Order was made after the Temporary Custody Order expired and therefore was made without jurisdiction, that is not a change in the circumstances that gave rise to the Order.  On an application under s. 54 the Court is not concerned with procedural errors and is “solely concerned with the merits of the decision to grant a continuing custody order”.  The remedy for procedural errors is an appeal under s. 81 of the CFCSA. (See W.(S.) at para. 46.)

[38]      Even if I had concluded that Ms. C. had the necessary standing to bring her application under s. 54, the test for granting permission to bring a s. 54 application is not met.  I have reached this conclusion after considering ARFNIM and the Applicant’s and Child’s Indigenous heritage and the importance of access to justice.  I would dismiss her application under s. 54 on this basis as well.

3.   Does this Court have Jurisdiction to Cancel the Continuing Custody Order Given that T. is Deceased and Further, that if he were Alive he Would be 20 years old?

[39]      The CFCSA defines a “child” as a person under 19 and the Interpretation Act defines a “person” as including a corporation, partnership or party and the personal or other legal representatives of a person to whom the context can apply according to law.  A “personal representative” is defined as including an executor of a will and an administrator with or without will annexed of an estate, and, if a personal representative is also a trustee or part or all of the estate includes the personal representative and trustee.  There is no section of the CFCSA that expressly states that the court has no jurisdiction to make any order under the CFCSA when a child dies before reaching the age of 19.

[40]      In my view, the question is less a question of general jurisdiction and more a question of whether the test for setting aside a Continuing Custody Order under s. 54 could be met in this case.  However, this is an application at the permission stage.  Given that the law is clear that the court should not consider the best interests of the child at the permission stage (see: C.L. at para. 10), and given that I have concluded that the application under s. 54 should be dismissed on the basis set out above, I will not consider this issue further.

4.   Does Rule 8(6) Apply?

[41]      The parties agree that the Continuing Custody Order was made in the absence of Ms. C.  Rule 8(6) of the Provincial Court (Child, Family and Community Service Act) Rules permits a judge to cancel an order made in the absence of a party who received notice of a hearing if the applicant demonstrates, on balance, all of the following circumstances:

1.   the party applies to cancel the order within a reasonable time;

2.   the party had good reason for failing to attend when the order was made;

3.   there is a good reason for changing or cancelling the order; and

4.   the change or cancellation would be in the best interests of the child.

(See Director v. C.R. and R.D., 2005 BCPC 449 para. 17)

[42]      Ms. C. testified that she did not know about the Continuing Custody Order and that she was not personally served.  For the purpose of this application, I accept that she was served according to the Substitutional Service Order.  That means that legally notice was given to Ms. C..  However, I also accept that Ms. C. did not have personal knowledge of the Continuing Custody Application until after T.’s death.

[43]      Because of the Substitutional Service Order, Ms. C.’s case is different from one where there has been an order dispensing with service.  Where service has been dispensed with, Rule 8(6) does not apply (see W.(S.)).  In C.R.and R.D., the parents applied to set aside a Continuing Custody Order pursuant to either Rule 8(6) or section 54 of the CFCSA.  In that case, the parties agreed and the judge accepted that that Rule 8(6) was the proper mechanism to change or cancel an order made in default of appearance by a party.  I conclude that Ms. C. can apply under Rule 8(6) to set aside the Continuing Custody Order.

[44]      The Director says that the Order should not be cancelled under this Rule because the application was not made within a reasonable time and because there is no reasonable explanation made for Ms. C.’s failure to attend at the Continuing Custody hearing.

[45]      Counsel for Ms. C. did not make detailed submissions with respect to Rule 8.  She said that Rule 8 would be better discussed at the hearing under s. 54.  A review of the legislation and related case law makes it clear that applications under s. 54 and applications under Rule 8 are separate and distinct from each other.  In fact, Rule 8 is usually used where an applicant parent has made an application under s. 54 but has failed to satisfy the court that they were a party to the Continuing Custody Order hearing.

[46]      I conclude that Rule 8(6) would apply in this case given my determination that Ms. C. cannot be a party on a s. 54 application in this case.

[47]      Given the comment by counsel for Ms. C. that Rule 8 would be better discussed at a full hearing under s. 54, I am satisfied that she did not fully canvass the issue of Rule 8 on this hearing.  She did not provide me with any submissions or evidence on the merits of Rule 8 in this set of circumstances.  The Director did not make lengthy submissions on the Rule either.

[48]      Given the importance of access to justice and the need for a fair hearing, I am prepared to hear any additional submissions or evidence the parties seek to lead at another hearing before ruling on whether the test in Rule 8 is met in this case.

Conclusion

[49]      The application pursuant to s. 54 of the CFCSA is dismissed.  There will be a hearing to determine whether the Continuing Custody Order should be set aside under Rule 8(6).  I will be seized of that hearing.

 

 

____________________________

The Honourable Judge J.A. Harris

Provincial Court of British Columbia