IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT (Orally):  On September 7th of 2016 the Director filed a document headed "Amended Application for an Order" in these proceedings.  The application in its original form was filed on August 23rd of 2016 and spoken to on September 1st on a first appearance. 

[2]           Counsel for the Director, Ms. Gosal, advises that it became evident to Director's counsel on September 1st that Director's counsel had cited the wrong statutory authority for the order it was seeking in its original application. 

[3]           The Application seeks an order of continuing custody with respect to the child J.M.D., [d.o.b. omitted for publication].  Without getting into the details, the Director came to the conclusion on reflection that given the history of previous proceedings involving J.M.D. it ought not and could not proceed to seek and obtain a continuing custody order with respect to him under s. 49(5) of the CFCSA as the Director's Application first read, but rather that the continuing custody order would have to be pursued under s. 42.2(4)(d) of the CFCSA.  Ms. Gosal confirms in her submissions before the court that this is a matter of inadvertence, a failure to fully appreciate the appropriate pathway with respect to the governing statutory provisions that should have been reflected in the section reference in the Application.

[4]           No specific provision in the Provincial Court CFCSA Rules speaks to the question of amendment of pleadings.  Director's counsel filed an Amended Application purporting to correct the error made in the Application in its original form.  The word "Amended" is marked in hand above the printed words "Application for an Order" and the new section reference is underlined.  This in broad terms is the way that amendments to pleadings are normally signalled and featured.  As I have understood it, a copy of this purportedly amended and filed Application was provided to Mr. Simunovic as counsel for the surviving parent, M.D.

[5]           Ideally, notwithstanding the fact that the Rules make no express provision for amendments to pleadings in CFCSA matters, the Director would have formally sought leave to amend its Application to correct the statutory reference.  The absence of an express provision that speaks directly to amendments does not mean that amendments can be made unilaterally. 

[6]           This matter ended up on my list this morning on a list day and Mr. Simunovic, representing M.D., opposes what is in effect now a de facto oral Application for leave to amend. 

[7]           I repeat that the error in citing the appropriate provision of the CFCSA is candidly acknowledged by counsel Ms. Gosal as being counsel's error.  There was simply, on her submissions, which I accept, a failure to properly navigate through the statutory provisions and identify the appropriate statutory provision for the purposes of this Application having regard to the relevant history.

[8]           I am satisfied that I am able properly to hear this oral Application to correct a solicitor's error and ensure that the Application before the court properly characterizes the matter that the court is asked to adjudicate.

[9]           Mr. Simunovic has in the course of his submissions at one point said that he does not consider the amendment Application to impose any prejudice on his client M.D., although in his later submissions he suggested that there may be some prejudice.  I am not persuaded by Mr. Simunovic's submission that there is any real prejudice to his client that accrues to simply permitting the Director to accurately set out the basis in statutory law for its application. 

[10]        The first application was filed on August 23rd and was the subject of a first appearance on September 1st.  This oral application today comes before me on September 8th.  Not even a week has passed between the two.  The error has been detected at the earliest opportunity and the matter has been put back before the court at the earliest opportunity.

[11]        I have jurisdiction under Rule 8(11) to give a direction on any procedural matter that is not provided for in the Act or Rules.  The amendment of pleadings is not provided for in the Act or in the Rules and an amendment that simply corrects a mistaken statutory reference is, in my respectful view, a procedural matter for the purposes of Rule 8(11).

[12]        I pause to consider the Rules that govern proceedings in the Supreme Court of British Columbia which do have express provisions governing amendments to pleadings.  In a manner that is consistent with Rules of Court in many Commonwealth jurisdictions, the Rules of Court that govern in the Supreme Court make provision for what counsel often refer to as one free amendment so long as the amendment is made before service of the Notice of Trial.  No court leave is required for that amendment and that power to amend without court leave is exercised routinely in a multitude of circumstances, including circumstances like these where on further review an error is detected in the initial pleading.

[13]        No hearing has been set of the Application in its original form here and so one can see a parallel between that and the circumstances that govern when a free amendment is permitted under the Supreme Court Rules. 

[14]        I do not, with all respect to Mr. Simunovic's submissions, consider it a justifiable or proper use of court time and resources to usher this question of the amendment of the Director's mistaken Application into a future hearing.  There has been a frank concession that a slip was made, a mistake was made by counsel.  That slip can be corrected through an amendment.  I do not consider it a justifiable or appropriate use of court time and resources to require a further hearing on the matter.  Consequently, I grant leave to the Director to amend its Application for an order in this proceeding filed on August 23rd, 2016, to delete the reference to s. 49(5) as the jurisdictional source of the power to grant a continuing custody order, and substitute in its place a reference to s. 42.2(4)(d) of the CFCSA. 

[15]        I will add that, so that the irregularity of the process whereby the Director simply filed an amended Application without raising the matter is properly dealt with on the face of the file, that it is a requirement of my decision on this oral application that the Director file a properly amended version of its first Application referencing, among other things, that leave was granted for the amendment by me in this hearing today.  So the purported amended Application that was filed on September 7th will be superseded by a new amended Application that adverts to the fact that the question of the amendment was the subject of a hearing on this date before me.

[16]        Mr. Simunovic takes issue with certain aspects of other hearings before other judges in these proceedings.  Those are not matters that I need to consider today on a simple amendment application.  If Mr. Simunovic wishes to pursue arguments that he has about errors that he believes were made previously, then he can take the necessary steps to do so.  I have dealt with something approaching a clerical error on the face of an Application in what I consider to be a properly economical fashion.