IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           The parties are agreed that the Director had grounds for removal of C.A.L., born [omitted for posting], I.L., born [omitted for posting], and C.M.L., born [omitted for posting]. The issue is with respect to the appropriate interim order. The Director seeks an order for interim custody. C.A.R. agrees that is appropriate. G.M.L. argues the children should be returned to him as a parent apparently entitled to custody.

[2]           The issue before me is whether G.M.L. is a parent apparently entitled to custody for the purposes of returning the children to him under s. 35(2). If not, G.M.L. seeks interim access.

[3]           Section 35(2) reads as follows:

[4]           The Director takes the position that a parent apparently entitled to custody must be the parent who has primary residency. Ms. Oliver-Dunbar disagrees saying that G.M.L. had custody, albeit not primary residence, before the removal and is therefore a parent who is apparently entitled to custody. Mr. Dundee for C.A.R. made submissions opposing return to G.M.L. under s. 35(2).

[5]           There is no guidance in the definition section of the legislation. Under s. 1, custody is defined to include care and guardianship of a child. That means the definition of custody is not entirely encompassed in this definition but certainly involves anyone tasked with the care and guardianship of a child. It does not speak of primary residence or parenting time (formerly access).

[6]           Guardianship is defined under s. 1 to include all the rights, duties and responsibilities of a parent. Again, it does not speak to primary residence or to parenting time. What it cannot mean is that the parent must have all of the responsibilities without exception. Otherwise, that would mean if a parent had some or most - but not all - responsibilities, they would not be guardians under this legislation. Again, the definition is not exhaustive.

[7]           Custody is a term that is no longer recognized under the Family Law Act. Instead, parents are guardians.  A parent who had access but not custody under the Family Relations Act is deemed a guardian under the new legislation. Consequently, even if G.M.L. did not have custody of his children under the Family Relations Act, he is a deemed guardian now.

[8]           Under s. 40 of the Family Law Act, only a guardian may have parental responsibilities but not every guardian has all parental responsibilities. Parental responsibilities are identified in s. 41. Every guardian has these parental responsibilities unless there is an agreement or a court order which designates which guardian has which responsibilities. Specifically, under s. 42(2) which defines the parental responsibilities of a guardian during parenting time, the Act provides:

[9]           If parental responsibilities have otherwise been designated, this does not include all of the parental responsibilities but only the day to day ones.

[10]        In this case, by order of the court on February 6, 2013, C.A.R. and G.M.L. were granted joint custody and joint guardianship of the children. Joint guardianship was defined as follows:

[11]        By the terms of that order, G.M.L. becomes the sole guardian of the children in the event of C.A.R.’s death and the same in reverse. C.A.R. was identified as the parent with primary responsibility for the day-to-day care of the children but not the sole responsibility of that day-to-day care. With respect to the larger guardian issues (not responsibilities), the parties were obligated to discuss and try to agree on a course of action. In default, C.A.R. had the right to make the decision but G.M.L. had the right to seek a review of that decision if he did not agree. What the order does not grant C.A.R. is the right to make decisions without consulting G.M.L. Both parents had a reciprocal entitlement to seek information from third parties. The primary residence was to be with C.A.R. By this order, both parents have essentially all of the guardianship responsibilities.

[12]        This order came on the eve of the change of legislation. As of March, 2013, the terms “custody”, “access” and “joint guardianship” ceased to be applicable. The terms of the order continued along with all of the obligations.  However, G.M.L.’s access time became parenting time and both parents became “guardians” of the children.

[13]        All of this is important because the Ministry, absent what it says is a legal preclusion to returning the children to the father, would have no issue with placing the children in his care on an interim basis. G.M.L. and C.A.R. are no longer together. They did have a joint history with the Director when they were together. G.M.L. has a new partner, C.P.  There are ongoing conflicts between C.P. and C.A.R. which have resulted in police and Ministry intervention.  The children were removed from C.A.R.

[14]        Mr. Kay argued that the court does not have jurisdiction at this stage to move the children to G.M.L.’s care. The restriction on what the court may do at this stage of the hearing is encompassed in s. 35(2). He argued that the wording suggests that the parent apparently entitled to custody is the person with whom the children were living. If G.M.L. is not a parent apparently entitled to custody, then placing the children with him is not a measure available to the court.

[15]        Mr. Kay also argued that the impact of changing the residence on an interim basis to the non-primary residence parent would change parental responsibilities and parenting time without a hearing under the Family Law Act.

[16]        Mr. Dundee joined his voice with Mr. Kay in this regard and provided the following decisions:  D.L.C. v. C.B.A., [1982] B.C.J. No. 3176, Re J.H., [2001] B.C.J. No. 1589, and British Columbia (Director of Child, Family and Community Service) v. L.A.S., [2012] B.C.J. No. 1129, as well as W.I. v. L.M.R., [2014] B.C.J. No. 1933.  I was also provided with the decision Director v. V.D., [2012] B.C.P.C. 153 (CanLII). On review of the cases, it seems that what constitutes a parent apparently entitled to custody is not predicated so much upon who has primary residence or even who has primary care, but upon the specific facts of each case.

[17]        Mr. Dundee argued that it is important to keep the difference in mind between the Family Law Act (“FLA”) and the Child, Family and Community Service Act (“CFCSA”). The FLA concerns itself with the best interests of the children.  While the CFCSA also considers the best interests, its primary focus is the need for protection. Protection is a more urgent concern than the best interests of the child. It is against that backdrop that he identifies what he termed generously as the “uneasy overlay of the statutes”. It is this uneasy overlay which creates the problem. The FLA has been put into force but the CFCSA has not been brought into line in terms of language or definitions.

[18]        Mr. Dundee argued that the Director could have considered placement with the father under a restrictive foster placement but the court may not do so at the presentation stage. This argument is persuasive and one wonders why the Director did not simply place the children with G.M.L. under a restrictive foster placement if they otherwise have no issue or less issues with him.

[19]        With the awkward wording of s. 35, even if C.A.R. were to consent to placement with G.M.L., the Director and the court cannot return the children to G.M.L. under s. 35(2)(d).  Only a person other than a parent can be considered for that placement and only with that person’s consent.

[20]        It is difficult to reconcile the rationale behind the distinctions in s. 35. It makes no sense to interpret this section to exclude a parent who does not have the primary residence of the children, but otherwise has guardianship and all other parenting responsibilities. Mr. Kay argued that if the court were able to place the children with the non-primary residence parent, there would be a multiplicity of these hearings to argue about whether placement with that parent is a less disruptive measure. I do not accept that the legislature specifically turned its mind to preventing non-primary residence parents taking their own children in a child protection matter simply to prevent a flood of applications before the court.   It makes even less sense when considering that the Director could have placed the children with G.M.L. in a restrictive foster placement.

[21]        Mr. Dundee highlighted ss. 36 and 41 to define why G.M.L. is precluded from s. 35 remedies. Under s. 36, the legislation deals with interim supervision orders that no longer protect the child. Section 36(2.1) requires the Director to give notice to various parties, including each parent. This section permits the Director to return the child under subsection (3) to the parent or other person who, at the time of removal, was caring for the child under the Director’s supervision. Mr. Dundee argued that this wording is more expansive because the options expand with each stage of a protection proceeding. If a child is placed with a parent or other person under a supervision order, it is not in the urgent circumstances of a presentation hearing, but after careful consideration of the protection and best interest concerns.

[22]        This is non-sensical, unstable for the child, and traumatizing for all concerned. In my view, it is not enough to say that if it is so clear at the outset the other parent is an appropriate placement, then the Director should place the child with the parent in a restrictive foster placement. This may be an appropriate course where the other parent is not a guardian or where the other parent has no or very limited parental responsibilities. It is not appropriate in a case such as this where a guardian has all the parental responsibilities, even if he does not have primary residence and day-to-day care.

[23]         Mr. Dundee submitted that the court’s option to place a child with the parent from whom the child is removed or with another person with consent does not involve the other parent because it would require a lengthier hearing. The presentation hearings are not intended to decide “custody” issues but to decide urgent protection options. Mr. Dundee argued that primary care is something the court should consider when determining what is intended by the legislation under s. 35. This requires an examination in each case to determine whether one parent has all of the parental responsibilities, some of the parental responsibilities or none of them. While it may be an ultimately desirable outcome to place a child with the parent from whom the child was not removed, it is a distracting consideration at the presentation stage. The court must address the risk of harm first with the parent from whom the children were taken and then proceed only if there are no less disruptive measures available.

[24]        Having said that, though, s. 41 does not have similar language to that found in s. 36. As Mr. Dundee pointed out, orders to be made at a protection hearing revert to the language used in s. 35, being that the child would be returned to or remain in the custody of the parent apparently entitled to custody; or with a person other than a parent with the consent of the other person under supervision; or in the custody of the Director. The protection hearing, of course, is much more like a trial. All of the protection considerations and risk issues are resolved at that protection hearing. Consequently, the seeming logic behind the difference in language of s. 36 does not hold true through to the conclusion of a protection proceeding.

[25]        If I were to adhere to this interpretation, the untenable result is that children would only be placed with a non-primary residence parent if there is first a continuing custody order. That cannot be the intention of the legislation. While the child or children are languishing needlessly in foster care instead of with a suitable other parent, the non-primary resident parent would have to apply under the family law proceedings and the issue of primary residence would have to be resolved before the conclusion of the protection proceedings. This can take many months and even years.  Otherwise, a continuing custody order has to be made and the Director has to place the child with the other parent either on an ongoing foster placement or through adoption by the child’s own parent.  This order of litigation is inconsistent with the order of proceedings mandated in D.L.C. v. C.B.A. 

[26]        D.L.C. v. C.B.A. is a case from 1984. It is a very dated case. The issue was whether the court had jurisdiction to hear a custody application under the Family Relations Act, together with an application for a continuing custody order. In that case, Judge Collings found that an application for custody could not be joined with an application for a continuing custody order. The court concluded that once the child was apprehended he or she becomes a ward as a matter of status. Consequently, other custodial rights over the child could not be litigated while the Superintendent had custody of the child. At paragraph 37, the court highlights the very dysfunctional outcome I highlighted:

[27]        I also highlight paragraph 18(4) wherein Judge Collings defined “return”:

[28]        Additionally, as in this case, the court looked to the Family Relations Act which was then the legislation governing custody and access in order to define what the CFCSA meant by “the parent apparently entitled to custody”.

[29]        If I were to follow the decision in D.L.C. v. C.B.A., which I must do if I am satisfied it is still valid law because it in turn relies upon J.M. v. Supt. of Fam. & Child Services, [1983] B.C.J. No. 15, then the family proceedings in Prince George cannot proceed until the protection hearing is concluded in Kamloops. Hence the importance of determining whether there was a less disruptive measure available by placing the children with G.M.L. If the children are placed with G.M.L. on an interim basis, we must still conclude the protection hearing before the Family Law Act proceedings can proceed. I am not satisfied that D.L.C. v. C.B.A. is still valid law which I will address at the end of these Reasons.

[30]        Re J.H. is a 2001 decision of my brother Judge Gove. He dealt with a case where the children had been removed from the mother. The children had different fathers. For the child whose father did not reside in the home with the mother, that father had an order for generous access, which he exercised. Guardianship was not addressed in that order and therefore the court concluded that, as a question of law, both parents had joint guardianship. The court was satisfied that it would be in the best interests for that child to be placed with his father. The father had made an application to vary the custody order but it had not been served in time for the application.

[31]        Unlike the case before me, the court was applying s. 36, which was a return after supervision. In dealing with what the Act meant by “the parent or other person who, at the time of the removal, was caring for the child” he concluded at paragraph 7 that the father was a person who had on a regular basis been responsible for the physical care and control of the child. The Family Relations Act defined guardianship to include all the rights, duties and responsibilities of a parent. The father was a guardian of the child and therefore had all of those rights, duties and responsibilities. So it is with the case before me.

[32]        In concluding, Judge Gove referred to s. 2 of the CFCSA under “Guiding Principles”:

[33]        Those sections remain unchanged today. I must still adhere to these principles which are second only in paramouncy to the safety and well-being of the children.

[34]        In Director v. V.D., a decision of mine from 2012, the child was placed voluntarily with the grandparents. The child was removed from the grandparents, not because of an incident that happened, but because the social workers were concerned that more might be going on outside of the public eye. I decided the case on the basis that I was not satisfied the Director had met the test there was no less destructive measure available. I found that the child ought not to have been removed. The Director’s counsel argued that I was not able to return the child under s. 35 because the grandparents were not “a parent apparently entitled to custody”, because they were not parents.  However, s. 1 defines “parents” to include a person with whom a child resides and who stands in place of a mother or father. I considered the inclusive meaning of “custody” under the Act and concluded that the grandparents were persons with whom the child resided and who stood in the place of a mother or father. The question before me on that case is quite different from the issue raised on this case. The issue in that case was the definition of “parent” more than “parent apparently entitled to custody”.

[35]        In the decision of Director v. L.A.S., my brother Judge Harrison had an application before him by one of the fathers seeking directions as to whether he is a “parent apparently entitled to custody”. If he were and the child were returned to that father, then the Director could withdraw from the proceedings. In that case, the child was removed at birth. It was initially thought that the mother’s current partner was the father but DNA evidence established that the Applicant was the biological father. He commenced an action under the Family Relations Act applying for custody of his child. It had not yet been heard when the CFCSA application came before Judge Harrison.

[36]        There were no orders or agreements with respect to custody or guardianship of the child. Because the child had been removed at birth, there was no one with whom the child usually resided other than in foster care. A consideration of those definitions, therefore, did not assist the court. In the absence of any court orders, however, the step-father argued that the mother was the sole guardian. The mother argued that not only did she have default guardianship but she was the only person with whom the child was usually resident, being in utero, and was therefore in the care of her mother. Compellingly, Judge Harrison stated this at paragraph 22:

[37]        Consequently, the granting of an order under s. 35 does not predetermine the outcome of the Family Law Act application with respect to guardianship and parenting responsibilities. As Mr. Kay pointed out, the full weight of the Director’s case and the response of both parents have not been heard. Nor has the family law case. This is a very preliminary stage of the proceedings.

[38]        Judge Harrison concluded that because Ms. S. was the sole guardian, she was solely invested with all of the rights, duties and obligations of a parent. He found that the father was not in the same position and was not a parent apparently entitled to custody. This is not the same as the facts before me.  G.M.L. does have joint custody and guardianship under the Family Relations Act, and he is a guardian under the FLA.  

[39]        Finally, in W.I. v. L.M.R., a decision of Regional Administrative Judge Smith made April 29, 2014, an application was before the court on a presentation hearing. R.A.J. Smith highlighted that the legislation permitted return of a child to a parent apparently entitled to custody, but not to any other parent. At paragraph 2, he outlines the rationale for the legislation:

[40]        On the other hand, there is the observation made by Judge Harrison in citing W.N. v. C.G. 2012 BCCA 149 (CanLII), 2012 B.C.C.A. 149 from our Court of Appeal:

[41]        At paragraph 6, Judge Smith said this:

[42]        He clarifies this to confirm that if there was a shared parenting arrangement then the Director could return the child to the other parent. Similarly, if the facts show that there is another parent impressed with custody and guardianship both as defined under the CFCSA and as determined on the facts, then that parent is also apparently entitled to custody.

[43]        Judge Smith concluded that he could make an order under the FLA on an interim basis granting the father primary parental responsibilities and then direct the child be returned to the new parent apparently entitled to custody. That is an option but an unnecessary one in this case.

[44]        I am satisfied that G.M.L. is a parent apparently entitled to custody. He is a guardian of the children. He has all of the parental responsibilities that C.A.R. has. She may have the “tiebreaker” decision-making powers, but her powers are not paramount. She has primary residence of the children and is tasked with the day-to-day care of the children. However, G.M.L. has been an active parent and, while the children are with him during his parenting time, he has all of those day-to-day responsibilities of caring for them.

[45]        I do not accept that the legislation intended to preclude a viable non-primary residence parent simply because he or she does not have primary residency of the child or children.

[46]        I understand the argument counsel have made with respect to lengthy proceedings, but clearly the avenues offered in the prior cases do not support these concerns.  Judge Smith contemplated a regime where an interim primary residence and fully responsibilities order could be made at the same time as the presentation hearing. The Court of Appeal recognized the legislative schemes contemplate concurrent proceedings.  Similarly, all parties recognize that there could be a restrictive foster placement with another parent. These scenarios could potentially impact an FLA proceeding as much as a return order under s. 35. In my view, Judge Harrison dispenses with this concern in Director v. L.A.S. 

[47]        I find that there were grounds for removal and that G.M.L. is a parent apparently entitled to custody. Having determined that he is, the parties wish to call evidence so that submissions can be made with respect to the appropriate terms for the interim order.

[48]        I urge the parties to apply to have the child protection case heard at the same time as the family law case. As I have stated, it is clear that the Court of Appeal contemplated such a regime in W.N. v. C.G.:

[49]        This decision prevails over D.L.C. v. C.B.A. and J.M. v. Supt. of Fam. & Child Services. These cases should be heard together to resolve both the protection concerns and the changes to primary residency and guardianship sought by G.M.L. and opposed by C.A.R.  I leave it to the parties to make the appropriate applications.  If they wish to make that application in Prince George, the protection hearing can be transferred there. However, the continuation of the presentation hearing must be scheduled before me to finalize the interim order. The parties expect that hearing to be 1.5 to 2 days. I expect it to be much shorter given its preliminary nature. I am referring the matter to the Judicial Case Manager to fix a one day hearing. If the parties reach a consent on the interim terms before that hearing date, they have leave to submit the consent order to me by desk order.