IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application by the Director of Child and Family Services for a continuing custody order of R.S.(2), born [omitted for posting].  The matter came before me for a pre-trial conference on August 20, 2014 at which time I asked counsel to address certain issues including the views of the child, how the continuing custody order would proceed, and service on the biological father, R.S.(1).  Written submissions concluded in December, 2014.

[2]           There were a number of other parties on various other related proceedings who have now all abandoned or failed to attend the pre-trial of their various applications.  L.R. is prepared to consent to the continuing custody order, so long as there is a concurrent access order in her favour.  About one hour of court time would be required for that case.

[3]           Section 49 of the Child, Family and Community Service Act (CFCSA), [R.S.B.C. 1996] c. 46, provides as follows:

[4]           Under s. 69(1)(b), R.S.(1) is therefore entitled to be served with notice unless there is a valid reason to dispense with service upon him under s. 69(1)(b).

[5]           Service on a parent on an application for a continuing custody order is not a matter of mere procedure or process but one of fundamental procedural fairness.  Both counsel referred me to S.S.M.B. v. British Columbia (Children and Family Development), 2014 BCSC 662 (CanLII), 2014 B.C.S.C. 662, on that point.  In addition, to dispense with service on the biological father there must be proper and compelling evidence.  It is not enough to merely allege that the identity or location of the father is uncertain or unknown, that some form of constructive notice has been effected, or that the father has not attempted to make inquiry or become part of the proceedings.  In her review of the law relating to the necessity for service in strict compliance with the Act, Griffin, J. referred to Re Pearson (1973), 1973 CanLII 1064 (BC SC), 37 D.L.R. (3d) 207 (B.C.S.C.); Children’s Aid Society of Metropolitan Toronto (Municipality) v. Lyttle, 1973 CanLII 13 (S.C.C.), [1973] S.C.R. 568; and C.S.L. v. British Columbia (Director of Child, Family & Community Service), 2007 BCCA 92 (CanLII), 2007 B.C.C.A. 92 (CanLII); and Kawartha Haliburton Children’s Aid Society v. T.G., 2012 ONSC 4529 (CanLII), 2012 O.N.S.C. 4529 (CanLII), in particular.

[6]           Mr. Dundee suggested that the requirement for formal service may be a more murky area.  While the CFCSA permits certain informalities in procedure and, in particularly, provides at s. 66(2): “no order under this Act may be set aside because of any informality of the hearings or for any other technical reason not affecting the merits of the case”, where it is a matter of procedural fairness there must be proper service.

[7]           Mr. Dundee argued that notice is the objective of the service provisions and service is the means by which notice is given.  He argued that if a person had actual notice of the nature of the application, as well as when and where it was to be heard, and they attended, that would satisfy the need for actual justice.  Mr. Dundee referred to Re Pearson and to Melissen v. Melissen, [1989] B.C.J. No. 2131, to exemplify where delivery of notice did not constitute service of it and where attorning to the jurisdiction dispensed with the issue of formal service.  I agree with Mr. Dundee that the better practice, particularly in continuing custody order applications, is to personally serve both parents to ensure that they have effective and proper notice of the application and hearing.

[8]           Mr. Kay expanded on this theme.  He argued that there is no lis between the Director and the parents.  Rather, service is a guarantee of procedural fairness.  He referred to Children’s Aid Society v. Lyttle, where the Supreme Court of Canada held that notice to a parent of wardship proceedings concerning the parent’s child is an “elementary principle of Crown natural justice”.  Indeed, in G.(J.P.) v. British Columbia (Superintended of Family & Child Services), (1993), 1993 CanLII 6868 (BC CA), 77 B.C.L.R. (2d) 204, our Court of Appeal directed a rehearing expressing concern that process may not have been fair to the parents who “in such an important matter, are entitled as a debt of justice, to a fair hearing conducted according to the law”.

[9]           I therefore conclude that the Director must first attempt to locate and personally serve R.S.(1) before there is any consideration of dispensing with service upon him.

[10]        R.S.(1) does not reside in British Columbia.  The Director does not know where R.S.(1) is but believes he may reside in Saskatchewan.  Efforts will have to be made to try to trace him.  Assuming that he still resides outside of British Columbia, there are no provisions in the CFCSA specifically permitting service ex juris upon him.  R.S.(1) cannot be served substitutionally because, if the court lacks jurisdiction to order service ex juris, it lacks jurisdiction to order substitutional service: Gardner v. Osman, [1998] B.C.J. No. 1894.

[11]        While the relatively new Provincial Court (Family) Rules have been amended to include a rule for service ex juris under Rule 9(12), there is no counterpart under the Provincial Court CFCSA Rules.  The CFCSA Rules only permit service ex juris in circumstances where the person to be served is temporarily outside of the jurisdiction under Rule 6(10).  This clearly by legislation limits the ability of this court to order service ex juris.  R.S.(1) is not temporarily outside of the province.  He resides outside of the province.

[12]        Unfortunately, it appears there is also no jurisprudence which considers service ex juris under the CFCSA.  I must look to existing case law and legislation to determine whether service is a matter of procedure for which I can exercise jurisdiction to order it be done ex juris in the circumstances.

[13]        The issue is the nature of the proceedings and whether jurisdiction is derived from service.  If it is not derived from service, then service is a matter of procedure.

[14]        Mr. Dundee took issue with the assessment of Judge Collings in the Hyde v. Hyde, [1986] B.C.J. No. 3107, where he held that the issues of custody and maintenance were actions in personam and therefore the court had no jurisdiction over a respondent outside the boundaries of the province if jurisdiction depended on service of process on that party.  Mr. Dundee argued that the authorities Judge Collings referred to in Hyde cast service as a matter of procedure and not a substantive remedy.  Additionally, Mr. Dundee argued that the premise that service is essential to establishing jurisdiction is no longer valid law.  I agree.

[15]        This was considered by Griffin, J. in S.S.M.B. at paragraphs 90-92.  She does not resolve the issue.  However, the legislation clearly preserves jurisdiction under s. 66(2).  Service is not the key to preserving that jurisdiction.  It is rendered a procedural matter, albeit an important one.

[16]        In any event, Mr. Dundee disputed that actions concerning custody of a child are actions in personam.  He argued that the distinction under common law rules between actions in personam and in rem was that service was essential to found jurisdiction for actions in personam but not for actions in rem.  He referred to Court Jurisdiction, 1989, John W. Horn, at p. 3 to address the difference between an action in personam and in rem:

[17]        Mr. Dundee argued that actions involving personal status, including the appointment of guardians for infants were considered actions in rem.  He opines therefore that Judge Collings’ comments regarding child custody may not be correct.  He argued that actions for child custody involve both elements of personal status, being that of the child, as well as parental rights.  He also argued that continuing custody proceedings have profound implications for the rights of parents which may be lost altogether.  I agree.  While the proceedings deal with the status of the child, they also deal with the rights of the parents and the child.  These proceedings are therefore more akin to an action in rem than in personam.  This coincides well with Mr. Kay’s submission that there is no lis between the parents and the Director.

[18]        This brings me to Mr. Dundee’s argument that authority is found for service outside the jurisdiction under the Court Jurisdiction and Proceedings Transfer Act (CJPTA).  In Olney v. Rainville, 2009 BCCA 380 (CanLII), 2009 B.C.C.A 380, the court was asked to make a declaration that a former spouse of a mother was not the child’s father.  In that case, none of the parties nor the child lived in this jurisdiction.  The only connection was that British Columbia was the mother’s legal domicile and, by extension, therefore the child’s legal domicile.  In considering whether this constituted an action against a party within the meaning of s. 3 of the CJPTA or whether it was an action without a defendant, the court said this at paragraph 33:

[19]        There is no question in the proceeding before me that the child is domiciled in this province and therefore this court prima facie has jurisdiction.  It is the domicile of the child and not service on the parents that creates that jurisdiction.

[20]        The court concluded that the action was at least in part against the former spouse but, in any event, the test under the CJPTA was whether there was a real and substantial connection between the province and the facts on which the proceeding was based.  Such is the case in the proceedings before me.

[21]        The CJPTA provides for territorial competence against a person if there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based under s. 3. At s. 10, that real and substantial connection is presumed to exist in certain specified circumstances, but none of these refer to family proceedings or child protection proceedings.  Mr. Dundee argued that the Universal Law Commission’s commentary on s. 10 claims that family proceedings were specifically omitted because they had their own statutory provisions concerning territorial jurisdiction.  However, the CFCSA does not have a similar provision with respect to territorial jurisdiction.  As Mr. Dundee argued, though, it seems beyond controversy that the court has jurisdiction over a child ordinarily resident in British Columbia who is the subject of child protection proceedings.

[22]        Mr. Dundee argued persuasively that there is a real and substantial connection to the province within the meaning of s. 3 of the CJPTA.  This is supported by Olney which held the child’s status should be determined according to the jurisdiction of his or her domicile. The proposition is assisted by S.R.L. v. K.J.T., [2014] B.C.J. No. 2128, where the court held that a child usually had the most substantial connection to the jurisdiction where he or she habitually resided.  In that case, the parties commenced competing legal proceedings in their home jurisdictions, one being in Tribal court in Minnesota, and the other being in British Columbia.  Both courts claimed territorial competence and a simultaneous hearing was undertaken.  The court proceeded with an analysis under the CJPTA although it was a family proceeding.

[23]        If the CJPTA can be applicable to family proceedings - which are specifically not included in that legislation - then it must be applicable to CFCSA proceedings.  It is an even more compelling argument that it should apply to such proceedings given that there is no territorial jurisdiction specifically provided for in the CFCSA.

[24]        Jurisdiction and forum conveniens are not live issues in this case.  The child’s only connection to Saskatchewan is that his father may live there.  The child has not even enjoyed access to his father in that province in recent years.  The child lives and will continue to live here.  The court therefore has jurisdiction over the proceedings be they in personam or in rem or a combination.  The origins of jurisdiction are in the legislation and the child’s domicile, not in service upon the parties.

[25]        The next question is whether the Provincial Court has jurisdiction to order service ex juris absent specific rules or an enactment.  Since L.L.C. v. P.G., [1994] B.C.J. 1951 and Smythe v. Bourgeois, 2008 BCSC 1847 (CanLII), 2008 B.C.S.C. 1847, this court has inherent jurisdiction over the procedures of the court where the rules have created a gap.  Section 66(2) of the CFCSA gives the court general power to give directions or orders.  If service is a purely procedural matter, then the court may fill such necessary gaps in the rules concerning service, including service ex juris by resorting to its inherent jurisdiction and this empowering section.

[26]        I agree with Mr. Dundee’s and Mr. Kay’s submissions that dispensing with service would be undesirable and would deprive R.S.(1) - and indeed the child - of procedural fairness.

[27]        Mr. Dundee submits that R.S.(1) should be served using the same process as though he were a resident of British Columbia.  I agree.  Logically flowing from that, if attempts are made to serve him and he cannot be served, the court will then have to consider whether it is appropriate to make a substitutional service order.

[28]        The child has expressed a clear preference to remain in contact with his family, although he recognizes that he cannot live with his mother.  No one disputes that this is R.S.(2)’s position.  However, counsel submit it would be appropriate for R.S.(2) to be interviewed to confirm his views directly and to allow him the opportunity to ask any questions he may have about the proceeding.  He could alternatively seek independent legal advice and determine for himself whether he wishes to be made a party to the proceedings.

[29]        The views of the child must be taken into account in this matter.  The trial judge can receive those views in any number of ways.  It may be that, unlike many child protection proceedings, R.S.(2) would not be further traumatized by having to come to court to discuss the nature and extent of his circumstances.  However, this is a matter for the trial judge and not the pre-trial judge.  To avoid a delay of the proceedings, I urge counsel to obtain independent legal advice for R.S.(2) and seek his input on whether he would wish to attend court to express his views either by submission to the court or private interview.  If he does not wish to come to court, then his views should be expressed through his counsel either directly to the court or through other counsel in this proceeding.  It will be of assistance to the trial judge to know what R.S.(2)’s preferences and questions are.

[30]        Counsel indicated that the hearing, once the views of the child have been obtained and expressed to the court, should be short in nature and consist only of a short presentation by both the Ministry and by the mother.  It is expected that such a hearing would only last about an hour.  This is bearing in mind that L.R. is in agreement with the continuing custody order provided that she has a contemporaneous order allowing her access under s. 56.  It appears that the Director is agreeable to this.  If that is the case, then submissions can be made to the court so long as adequate background is provided in order to give substance to the hearing before the trial judge.  This is a sensible manner in which to proceed.  However, it is contingent upon R.S.(1) being served and expressing no interests in the proceedings.  Should he express an interest in the proceedings, then the hearing will obviously not be able to be scheduled for an hour.

[31]        I order that R.S.(1) be served where ever he is located.  That service shall be personal service.  There are no times to respond provided for in the Rules.  However, R.S.(1) should be given adequate opportunity to retain counsel if he wishes to do so and to appear before the court if he wishes to do so.  To ensure that R.S.(1) has that adequate time, I order that this matter return before the family remand court on a Wednesday following 30 days from the date of service upon R.S.(1).  If R.S.(1) does not appear at that time, this matter may be set by the Judicial Case Manager for a one hour hearing provided that the Director and L.R. continue to be of the same view that one hour is adequate to establish grounds for the continuing custody order and to make adequate provisions for L.R.’s application for ongoing access following the continuing custody order.