IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On November 7, 2019, M.C.W. applied for a number of interim orders in the Child, Family and Community Service Act (the “CFCSA”) Court file, 17280, Smithers Registry, with respect her five children (the “Children”), namely:

[2]           M.C.W. is the biological mother of B.C.W., G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. J.P.W.is the father of B.C.W., C.D.W. is the father of G.P.G.W., G.A.R.W. and J.A.F.W., and D.J.R.F. is the father of C.R.F.W. M.C.W. and all her Children are members of the [omitted for publication] Nation. C.D.W. is a member of the [omitted for publication] Nation and the [omitted for publication] Band. I could not find any specific reference in the materials filed as to D.J.R.F. or J.P.W.’s Indigenous heritage. I gather from Mr. Robinson’s participation in these proceedings that either or both of these fathers are members of the [omitted for publication] Nation.

[3]           This CFCSA file began on August 21, 2015. Since then it has proceeded intermittently. On June 26, 2018, the four youngest Children were placed in the temporary custody of the Director of the CFCSA (the “Director”). On August 16, 2018, B.C.W., the oldest Child, was also placed in the temporary custody of the Director. On November 6, 2018, the Director applied for a continuing custody order of the Children. M.C.W. would like the four youngest Children to remain together in the care of their long-term foster parents, T.K. and C.K. The Lake Babine Nation does not support M.C.W. in this regard because T.K. and C.K. are neither extended family members nor Indigenous. The younger Children (G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W.), have spent much of their lives in T.K. and C.K.’ care. There is no doubt T.K. and C.K. love the Children and are committed to having them permanently in their care should the Director and Court agree.

[4]           In the recent months, Ministry of Family, Child and Community Development (“MCFD”), with the assistance of the Lake Babine Nation, have been attempting to cultivate a relationship between C.R.F.W. and her half-sister, R.F. R.F., who is an adult, lives in [omitted for publication], BC. C.R.F.W. is now two years old. M.C.W. fears MCFD is planning on breaking up the four youngest Children rather than permit them to remain together in the permanent care of their existing non-Indigenous foster parents.

[5]           The Director has thus far declined M.C.W.’ request to transfer permanent custody of G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. to T.K. and C.K. pursuant to s. 54.01 of the CFCSA. The CFCSA allows only the Director to make an application under s. 54.01. On October 11, 2019, M.C.W. applied for an order finding s. 54.01 of the CFCSA unconstitutional because it allows only the Director to apply to have permanent custody of any of the Children transferred to another person.

[6]           M.C.W. asks the Court prohibit the Director from sending C.R.F.W. or any of her children outside the [omitted for publication] pending the hearing of M.C.W.’ constitutional challenge and the Director’s application for a continuing custody order. She says the forced unification of R.F. and C.R.F.W. is traumatic and disruptive to C.R.F.W. because despite their shared biological father, R.F. is a stranger to C.R.F.W.

[7]           M.C.W. is also distressed at the time this matter has taken to proceed to hearing and asks the court to order it do so expeditiously.

[8]           The principal issues before this court is whether:

[9]           In an attempt to contextualize M.C.W.’ application, I have set out below a history of these proceedings.

[10]        M.C.W. oldest daughter B.C.W. (now 15 years old), has been the subject of the CFCSA proceedings since birth. She was first removed from M.C.W.’ care on April 13, 2005, when she was one year old. She was place in the interim custody of the Director on April 19, 2005, and in the temporary custody of the Director on October 27, 2005 until June 17, 2007, when she was returned to her mother’s care under the Director’s supervision. From January 22, 2010 to October 10, 2017, B.C.W. was protected by a voluntary care agreement. In February 2018, MCFD social workers attempted to remove B.C.W. from M.C.W.’ care, but B.C.W. refused to cooperate. Eventually on April 26, 2018, B.C.W. sought MCFD assistance and she was again removed from her mother’s care on April 27, 2018.

[11]        This CFCSA matter currently before the court commenced on August 21, 2015, when the Director of the CFCSA (the “Director”) removed G.P.G.W. (then 4 years old), G.A.R.W. (3 years old) and J.A.F.W. ([omitted for publication] months old) from their parents, C.D.W. and M.C.W., and placed them with T.K. and C.K., an MCFD approved foster home.

[12]        The Director filed a Presentation Report, Form 1, on August 26, 2015 (Document 1) and a Report to Court, Form A, on August 27, 2015 (Document 2).

[13]        The Director’s August 26, 2015 Presentation Report came before Judge Birnie on August 27, 2015, who adjourned it to the Judicial Case Manager (the “JCM”) to schedule a hearing. On August 27, 2015, the JCM scheduled a hearing of the Presentation Report (Document 1) on September 10, 2015.

[14]        On September 10, 2015, Judge Struyk made an order pursuant to ss. 41(1)(a) and 35(2)(b) with reference to s. 60 of the CFCSA, returning G.P.G.W., G.A.R.W. and J.A.F.W. to M.C.W. under the Director’s supervision for a period of six months (See Documents 1 & 2).

[15]        On October 5, 2015, Crystal Horton, delegate of the Director, again removed G.P.G.W., G.A.R.W. and J.A.F.W. from M.C.W.’ care and under s. 42(1) of the CFCSA. MCFD returned the children to T.K. and C.K.’ care. On October 6, 2015, the Director filed a new Presentation Report, Form 1 (Document 3) and on October 7, 2015, a Report to Court, Form A, (Document 4). In the Report to Court, Ms. Horton states:

[16]        The Director’s October 6, 2015 Presentation Report came before Judge Stewart on October 7, 2015, at which time it was adjourned to the JCM to fix a date for the presentation hearing.

[17]        On March 1, 2016, Judge Jackson made an interim order pursuant to s. 42.1(a) of the CFCSA that G.P.G.W., G.A.R.W. and J.A.F.W. remain in the interim care of MCFD on a without prejudice basis. Judge Jackson referred the matter to the JCM for the commencement of the protection hearing. The JCM scheduled the hearing on April 7, 2016.

[18]        On March 24, 2016, Crystal Horton, delegate, for the Director, filed an application for a temporary custody order in Form 2 under s. 41(1)(c) of the CFCSA (Document 9) for G.P.G.W., G.A.R.W. and J.A.F.W., together with a Court Plan of Care (Document 10). This application was adjourned on May 16, 2016. The children had been removed from their mother’s care and placed with T.K. and C.K., a MCFD approved foster home. The Director’s overall goal at that time was to return the children to live with M.C.W. Ms. Horton states in the Court Plan of Care:

[19]        The Director’s October 6, 2015 Presentation Report came before Judge Seidemann III on April 7, 2016, at which time it was adjourned.

[20]        On April 7, 2016, the JCM scheduled a hearing of the Director’s March 24, 2016 application on July 14, 2016. On May 16, 2016, the Director’s March 24, 2016 application came before Judge Weatherly who adjourned to the JCM to fix a hearing date. It returned to court before Judge Low on July 14, 2016, at time it was again adjourned.

[21]        On August 30, 2016, Judge Jackson found G.P.G.W., G.A.R.W. and J.A.F.W. were in need of protection and granted the Director’s application for a temporary custody order under s. 41(1)(c) of the CFCSA (see Document 9).

[22]        On November 15, 2016, Tracy Malchuk, delegate of the Director, applied for an extension of the August 30, 2016 temporary custody order with respect to G.P.G.W., G.A.R.W. and J.A.F.W., pursuant to s. 44(3)(b) of the CFCSA (Document 18).

[23]        On November 24, 2016, Judge Jackson granted the Director’s November 15, 2016 application pursuant to s. 44(3)(b) of the CFCSA for the extension of the time G.P.G.W., G.A.R.W. and J.A.F.W., are in the temporary custody of the Director for a further period of three months.

[24]        On February 9, 2017, Jessica Shaw, delegate of the Director, applied for a further extension of the August 30, 2016 temporary custody order with respect to G.P.G.W., G.A.R.W. and J.A.F.W., pursuant to s. 44 of the CFCSA (Document 26) and an order extending the maximum time those three children could be in the temporary custody of the Director until to May 23, 2017.

[25]        On February 22, 2017, Judge Doulis granted the Director’s February 9, 2017 application pursuant to s. 44(3)(b) of the CFCSA, extending the time that G.P.G.W., G.A.R.W. and J.A.F.W. were in the temporary custody of the Director for a further period of six months.

[26]        On April 25, 2017, Jessica Shaw, delegate for the Director, applied for an extension of the Director’s August 30, 2016 temporary custody order with respect to G.P.G.W., G.A.R.W. and J.A.F.W., pursuant to 44(3)(b) of the CFCSA (Document 28).

[27]        On May 15, 2017, Judge Doulis ordered pursuant to s. 44(3)(b) of the CFCSA, the August 30, 2016 order placing G.P.G.W., G.A.R.W. and J.A.F.W. in the temporary custody of the Director be extended for a further period of three months.

[28]        On July 14, 2017, Jessica Shaw, delegate for the Director, applied for a further other extension of the August 30, 2016 temporary custody order of G.P.G.W., G.A.R.W. and J.A.F.W. pursuant to s. 44 of the CFCSA (Document 33), and an order extending the maximum time those three children could be in the temporary custody of the Director until December 31, 2017.

[29]        On August 11, 2017, Judge Jackson, granted the Director’s July 14, 2017 application under ss. 45 and 44(3)(b) of the CFCSA, to extend the maximum time G.P.G.W., G.A.R.W. and J.A.F.W. could be in the temporary custody of the Director until December 31, 2017, and to extend the temporary custody order made August 30, 2016, for a further three months.

[30]        On October 20, 2017, Malcolm Crockett, delegate for the Director, applied for a six month supervision order (Document 41) after the expiration of the temporary custody order under s. 46 of the CFCSA, with respect to G.P.G.W., G.A.R.W. and J.A.F.W. In support of that application, the Director also filed the written consent of M.C.W. (Document 43) to the Director’s s. 46 application.

[31]        On October 24, 2017, Judge Jackson granted the Director’s October 20, 2017 application made pursuant to s. 60 and 46 of the CFCSA that G.P.G.W., G.A.R.W. and J.A.F.W. be returned to M.C.W.’ custody under the supervision of the Director for a period of six months.

[32]        On January 19, 2018, Rachel Chambers, delegate of the Director, filed a Presentation Report, Form 1 (Document 47) with respect to C.R.F.W. together with a Report to Court, Form F (Document 48) seeking a supervision order under ss. 33.2 and 41(2.1) of the CFCSA with respect to C.R.F.W., who was born [omitted for publication].

[33]        On February 1, 2018, the JCM scheduled a further appearance on the Director’s July 14, 2017 application for February 22, 2018.

[34]        On February 13, 2018, Tracy Malchuk, delegate for the Director, filed an application for a six month supervision order in Form 2 (Document 56), under s. 41(2.1) of the CFCSA with respect to C.R.F.W. (then 2 months old). In support of this application the Director filed a Court Plan of Care (Document 54) and the written Consent of M.C.W. (Document 55) to the Director’s application under s. 41(2.1). The Director’s overall plan of care was to have C.R.F.W. remain in the care of her mother, M.C.W., under the Director’s interim supervision. At that time, M.C.W. had been the primary caregiver to C.R.F.W.’s siblings under a supervision order since October 24, 2017.

[35]        On February 22, 2018, Judge Doulis ordered pursuant to 44(3)(b) and 45(1.1) that the August 30, 2016 order placing G.P.G.W., G.A.R.W. and J.A.F.W. in the temporary custody of the Director be extended for a further three months and the maximum time the Children may remain in the temporary custody of the Director be extended until December 31, 2018 (Document 33).

[36]        On February 22, 2018, Judge Doulis ordered pursuant to s. 41(2.1) that C.R.F.W. remain in M.C.W.’ custody under the Director’s supervision until April 23, 2018, on terms and conditions (Documents 47 and 48).

[37]        On March 1, 2018, Teri Goodrick, delegate for the Director, filed a Presentation Report, Form 1 (Document 59), a Report to Court, Form A, (Document 60) under s. 42 of the CFCSA with respect to G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. The children had been removed from M.C.W.’ care on February 26, 2018, and returned to T.K. and C.K.’ foster home. At the time of their removal, M.C.W. was too intoxicated to care for the children. B.C.W., who was 14 (born [omitted for publication]), refused to accompany the social workers and remained in her mother’s home.

[38]        On March 2, 2018, Judge Jackson adjourned the Director’s March 1, 2018 application for interim custody of to G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. (see Document 59).

[39]        On March 29, 2018, Judge Adams made an order pursuant to s. 42.1(6)(a) placing G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. in the interim custody of the Director after they had been removed while under the Director’s supervision order.

[40]        On April 12, 2018, the Judicial Case Manager scheduled a hearing of the Director’s February 13, 2018 application on May 10, 2018 (Document 56).

[41]        On April 26, 2018, Teri Goodrick, delegate for the Director , filed an application for a temporary custody order, Form 2, (Document 62) under s. 42.2(4)(b) of the CFCSA with respect to G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. In support of that application the Director filed a Court Plan of Care (Document 63). Ms. Goodrick indicated the Director’s overall goal was to return the children to M.C.W. At that time the children were residing with T.K. and C.K. in Smithers, BC.

[42]        On April 27, 2018, the Director removed B.C.W. from M.C.W.’ care and placed her in the foster home of L.J.M.

[43]        On April 30, 2018, Teri Goodrick, delegate of the Director, filed a Presentation Report, Form 1 (Document 64) and Report to Court, Form A, with respect to B.C.W. B.C.W. was removed from M.C.W.’ care on April 27, 2018, due to the increasing severity of her mother’s drug and alcohol use. Also, B.C.W. was feeling unsafe in her home when it was populated with intoxicated strangers. The Director placed B.C.W. in the care of L.J.M., a MCFD approved foster home.

[44]        On May 1, 2018, Judge Doulis ordered the Director have interim custody of B.C.W. (Document 64).

[45]        On May 10, 2018, Judge Jackson presided over the commencement of the protection hearing and adjourned the Director’s April 26, 2018 application under s. 42.2(4)(b) of the CFCSA (Documents 62 and 63) for temporary custody of G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. to the JCM. On June 6, 2018, the JCM scheduled a hearing on June 26, 2018, of the Director’s April 26, 2018 application.

[46]        On June 26, 2018, Judge Jackson allowed the Director’s April 26, 2018 application (Document 62) and ordered G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. remain in the temporary custody of the Director pursuant to s. 42.2(4)(b) of the CFCSA for a period of three months.

[47]        On July 6, 2018, Teri Goodrick, delegate of the Director, filed a Presentation Report, Form 1 (Document 69), and Report to Court, Form A, (Document 70) with respect to B.C.W. Pursuant to s. 30 of the CFCSA, B.C.W. was again removed from her M.C.W.’s care due to her escalating alcohol and drug use. B.C.W. was placed in the foster care of L.J.M.

[48]        On July 12, 2018, Judge Jackson made an order pursuant to s. 35(2)(a) of the CFCSA that B.C.W. be placed in the interim custody of the Director (Document 69).

[49]        On July 13, 2018, the JCM scheduled a hearing of the Director’s February 13, 2018 application for August 16, 2018 (Document 56).

[50]        On July 19, 2018, Teri Goodrick, delegate for the Director, filed an application (Document 72) for a temporary custody order under s. 41(1)(c) of the CFCSA with respect to B.C.W. The Director also filed a Court Plan of Care in support of that application (Document 73). The plan of care at that time was to “achieve a stable permanent placement for B.C.W., preferably with her mother, with extended family, or within her Aboriginal community.” At that time the delegate, Teri Goodrick, was working with Tanya Brown, the representative of the Lake Babine First Nation.

[51]        On July 25, 2018, the Director filed the written consent of J.P.W.to his daughter B.C.W. remaining in the temporary custody of the Director for a period of three months pursuant to s. 41(1)(c) of the CFCSA (Document 77).

[52]        On August 7, 2018, the Director filed M.C.W.’ Consent to B.C.W. remaining in the temporary custody of the Director for three months pursuant to s. 41(1)(c) of the CFCSA (Document 81).

[53]        On August 16, 2018, Judge Jackson granted the Director’s July 19, 2018 application (Document 72) for an order pursuant to s. 41(1)(c) with reference to s. 60, that B.C.W. remain in the temporary custody of the Director for a period of three months.

[54]        On August 22, 2018, Teri Goodrick, delegate for the Director, filed an application pursuant to s. 44(3)(b) of CFCSA for an extension of the temporary custody order granted on June 26, 2018, with respect to G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. (Document 83 and 62).

[55]        On September 11, 2018, the Director filed D.J.R.F.’s written consent (Document 87) under s. 60 of the CFCSA, with reference to s. 44(3)(b), that the order granted on June 26, 2018, placing G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W., in the temporary custody of the Director be extended for a further three months.

[56]        On September 13, 2018, Judge Gray made an order pursuant to s. 44(3)(b) of CFCSA extending the temporary custody order granted on June 26, 2018, with respect to G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. for three months (Document 83 and 62).

[57]        On November 6, 2018, Teri Goodrick, delegate of the Director, filed an application for a continuing custody order (“CCO”) under s. 49(5) of the CFCSA with respect to all M.C.W.’ children (see Document 91), namely, B.C.W., G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. At this time the four youngest children were the foster care of T.K. and C.K. and B.C.W. was in the foster care of L.J.M. In support of its CCO application, the Director filed a Court Plan of Care (Document 92). The Director indicated its overall goal of the plan of care was to “establish permanent placement for the children, preferably with extended family or within the cultural community.” Teri Goodrick states:

[58]        At the time of filing its November 6, 2019 CCO application, MCFD was working with Tanya Brown as the representative of the Lake Babine First Nations.

[59]        On November 7, 2018, the Director filed the written consent of J.P.W.to an order pursuant to s. 49(5) of the CFCSA that B.C.W. be placed in the continuing custody of the Director.

[60]        On November 14, 2018, the Director filed the Affidavit of Tricia Purnell, on behalf of Teri Goodrick (Document 102). Ms. Purnell is a social worker who assisted with the conduct of this matter. She states the MCFD has had no contact with C.R.F.W.’s father, D.J.R.F. since November 4, 2018. D.J.R.F. last had supervised access to C.R.F.W. on May 24, 2018, which she was five months old.

[61]        Also on November 14, 2018, the Director’s November 6, 2018 CCO application (Document 91) came before Judge Jackson, at which time it was adjourned to the JCM to fix a date for hearing.

[62]        On November 15, 2018, the JCM scheduled the Director’s April 26, 2018 application (Document 62) for a second appearance and a family case conference (“FCC”) on December 17, 2018.

[63]        On December 17, 2018, social worker Tricia Purnell filed an affidavit (Document 103) setting out MCFD’s attempts to contact D.J.R.F. about the Director’s pending CCO application.

[64]        On December 17, 2018, the Director’s November 6, 2018 CCO application (Document 91) came before Judge Docolas, who permitted the Director’s request to dispense with service of the application on D.J.R.F.

[65]        On January 10, 2019, the Director’s November 6, 2018 CCO application (Document 91) came before Judge Malfair for a FCC. No orders were made and the JCM scheduled a further one hour FCC on February 14, 2019.

[66]        On February 14, 2019, the Director’s November 6, 2018 CCO application (Document 91) came before Judge Doulis for a FCC. No order was made and the matter was referred to the JCM to schedule another FCC.

[67]        On February 25, 2019, the JCM scheduled a one hour FCC on May 16, 2019, with respect to the Director’s CCO application (Document 91).

[68]        On March 19, 2019, the JCM scheduled a four day hearing of the Director’s CCO application under s. 49(5) of the CFCSA (Document 91) from June 25 to June 28, 2019, in Smithers Provincial Court.

[69]        On May 9, 2019, M.C.W. new counsel (Mr. Lawson) filed an application for an order (Document 109) under the CFCSA asking the June 25 – 28, 2019 hearing dates be adjourned. The application states:

[70]        On May 16, 2019, M.C.W.’ May 9, 2019 disclosure application (Document 109) came before Judge Jackson for hearing. Judge Jackson adjourned the hearing dates and remitted the matter back to the JCM to reschedule the hearing.

[71]        On June 3, 2019, the JCM scheduled a FCC on June 27, 2019, with respect to the Director’s CCO application. On June 5, 2019, the Director filed an application for an order (Document 111), under s. 45(1.1) of the CFCSA that the maximum time the children (G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W.) may remain in the temporary custody of the Director be extended until the Court decided the Director’s CCO application. At the FCC on June 27, 2019, Judge Jackson ordered, by consent, the maximum time the Children may be in the temporary custody of the Director be extended the until Court made a decision on the Director’s CCO application.

[72]        On June 26, 2019, M.C.W. attended a meeting at the “Old Church” building in Smithers with eleven other people, including three social workers, M.C.W.’ brother, C.W., hereditary chief Alphonse Gagnon, Lake Babine Nation representatives, Tanya Brown and Sarah Jack, M.C.W.’ mother-in-law T.N., M.C.W.’ sister-in-law H.W. No lawyers attended the meeting. At the conclusion of the meeting, M.C.W. understood all the participants agreed her children would be placed with T.K. and C.K. under s. 54.01 of the CFCSA, which states:

[73]        Shortly after the June 26, 2019 meeting, upon consulting with her legal counsel, M.C.W. resiled from her initial agreement the four youngest Children be placed permanently in the care of T.K. and C.K. M.C.W. has since reconsidered her position and now believes this placement is best for G.P.G.W., G.A.R.W., J.A.F.W. and C.R.F.W. M.C.W. wishes the Director or Court transfer permanent custody of those four Children to T.K. and C.K. rather than to the Director pursuant to a CCO.

[74]        Subsequent to the June 26, 2019 meeting, MCFD and the Lake Babine Nation representative, Sarah Jack, began facilitating contact between C.R.F.W. and R.F. Apparently the early transitions did not go well and C.R.F.W. was distraught at been taken from her foster mother (C.K.) and transported to [omitted for publication] to spend time with R.F.

[75]        On June 28, 2019, M.C.W. filed a further application for an order for disclosure pursuant to s. 64 of the CFCSA and Rules 2(3), 8(8) and 11 of the Provincial Court (CFCSA) Rules (Document 116). In her application, M.C.W. asserts subsequent to the Director filing its November 6, 2019 CCO application, she requested disclosure on December 13, 2018, February 20, 2019, March 11, 2019 and April 8, 2019. No disclosure had been provided to M.C.W.

[76]        On July 10, 2019, the JCM scheduled court appearances on July 25, 2019 and October 10, 2019, and confirmed the four day hearing then scheduled from November 18 to 22, 2019.

[77]        On July 25, 2019, Judge Doulis granted M.C.W.’ June 28, 2019 disclosure application (Document 116) and ordered the Director provide disclosure on or before August 30, 2019.

[78]        On September 4, 2019, Mr. Lawson wrote to the Director’s counsel asking if the Director would seek an order under s. 54.01 of the CFCSA permanently transferring custody of the four youngest Children to T.K. and C.K. Mr. Lawson reiterated this request on September 10 and 19, 2019.

[79]        As the result of a further meeting on October 10, 2019, M.C.W. believes the social workers have changed their initial position about the s. 54.01 order, and now wish the four youngest Children be placed in an Indigenous home, which of course, would exclude their current caregivers. I gather T.K. and C.K. have not sought guardianship of the children under the Family Law Act.

[80]        On October 10, 2019, the Director’s November 6, 2018 CCO application (Document 91) came before Judge Doulis, at which time it was adjourned until November 14, 2019.

[81]        On October 11, 2019, M.C.W. filed an application (Document 118) under the Constitutional Question Act, RSBC, 1998, c. 68, in which she alleged her security of person under s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) had been violated. Specifically, M.C.W. sought an order that:

[82]        In her October 11, 2019 Charter application (Document 118), M.C.W. sets out the following grounds for seeking a constitutional remedy:

[83]        On October 11, 2019, M.C.W. filed an affidavit (Document 117) in support of her application under the Constitutional Question Act. In her affidavit M.C.W. described her distressed childhood. Her mother had gone to Lejac residential school. M.C.W. was raised in a home rife with alcoholism and family violence. Three men with whom her parents drank heavily began sexually abusing M.C.W. when she was six years old. This abuse continued until M.C.W. was 11 because her mother refused to believe her. M.C.W. never received any counselling and began drinking when she was 13 years old. When she was 18, M.C.W. suffered serious injuries in a motor vehicle accident from which she has not recovered. When she was 29, M.C.W. suffered the loss of her second infant child, D., who died from a heart defect.

[84]        In her October 11, 2019 affidavit, M.C.W. says B.C.W. was 11 when she was removed from M.C.W.’ care and placed in foster care with L.J.M. B.C.W. is now 15. All M.C.W.’ other children, when removed from her care from time-to-time, were placed in the foster care of T.K. and C.K. M.C.W. states at para. 11:

[85]        M.C.W. expresses concern that recently the social workers have started breaking the Children apart from each other. A few months ago, the social workers started sending C.R.F.W. to [omitted for publication] to spend time with her half-sister, R.F. M.C.W. says C.R.F.W. is terrified of being taken from T.K. and C.K., with whom she is very bonded, and sent to a distant community to “a family of complete strangers”. C.K. became physically ill witnessing C.R.F.W.’s terror at being taken from away.

[86]        M.C.W. states the only resistance to transferring custody of her Children to T.K. and C.K. is the Lake Babine Nation. Ms. Jack advises M.C.W. and the court the Lake Babine Nation opposes Indigenous children being placed in non-Indigenous homes. T.K. and C.K. are not Indigenous. M.C.W. states at para. 21 in her affidavit:

[87]        M.C.W. understands that Hereditary Chiefs Ronnie West and Alphonse Gagnon support transferring permanent custody of the four youngest Children to T.K. and C.K.’ pursuant to s. 54.01 of the CFCSA rather than to the Director under a CCO.

[88]        On October 28, 2019, the JCM scheduled a one hour FCC on October 30, 2019, which M.C.W. subsequently adjourned.

[89]        On October 30, 2019, Chantelle Rajotte, legal counsel for the Attorney General of British Columbia wrote to Mr. Ian Lawson, legal counsel for M.C.W., in response to M.C.W.’ application under the Constitutional Question Act. She maintains M.C.W.’ notice is deficient, and states:

[90]        Also, Ms. Rajotte asked Mr. Lawson if he intended to amend M.C.W.’ application to conform to the Constitutional Question Act. She also stated the hearing of the application scheduled for November 18, 2019, would have to be adjourned “to allow time for the constitutional issue to be properly pled and the relevant evidence to be assembled.”

[91]        On October 31, 2019, Ms. Rajotte wrote a letter to Mr. Lawson advising him that M.C.W.’s constitutional challenge to s. 54.01 of the CFCSA would have to be heard prior to the Director’s CCO application. This meant the four day hearing of the Director’s CCO application set to commence on November 18, 2019, would have to be adjourned.

[92]        Ms. Rajotte acknowledges M.C.W. argues s. 54.01 infringes her security of person under s. 7 of the Charter; however, maintains that before the Attorney General can properly respond to the Charter challenge, M.C.W. needs to explain how the infringement contravenes the principles of fundamental justice for each of the three alleged Charter breaches.

[93]        On November 1, 2019, the Attorney General for BC filed a Notice of Application returnable November 6, 2019, to adjourn generally M.C.W.’ application under the Constitutional Questions Act then set for hearing on November 18, 2019 (Document 120).

[94]        On November 1, 2019, Samantha Chappell, from the office of the Attorney General for BC, filed an affidavit attaching Ms. Rajotte’s October 30 and 31, 2019 correspondence to Mr. Lawson asking him to particularize M.C.W.’ application in accordance with s.8 (4)(d) of the Constitutional Questions Act (Document 121).

[95]        On November 6, 2019, the Attorney General of BC’s application filed November 1, 2019 (Document 120) came before Judge Jackson. At that hearing, Mr. Lawson articulated M.C.W.’ concern about C.R.F.W.’s extended visits with a half-sister she had never met. Counsel for the Director assured the Court there was no imminent plans to relocate the four youngest Children from their current home with T.K. and C.K. As B.C.W. is now 15, she “votes with her feet” and simply refuses to reside in the MCFD foster home against her will.

[96]        At the November 6, 2019 adjournment application, Counsel for the Director indicated that before a s. 54.01 order could be made the Director would have to comply with s. 41(1)(b) of the CFCSA, which requires the subject Children be placed with a prospective custodian for six months.

[97]        On November 7, 2019, M.C.W. filed an application for an order (Document 123), in which she sought:

[98]        M.C.W.’ November 7, 2019 application (Document 123) came on for hearing before me on November 14, 2019. M.C.W. relied on her affidavit filed October 11, 2019 (Document 117) in support of her application. I heard from Mr. Lawson, counsel for M.C.W., Mr. Fitzmaurice, counsel for the Director, Ms. Rajotte, counsel for the Attorney General of BC, Sarah Jack, representative of the Lake Babine Nation, and Dwayne Robinson, Wet'suwet'en hereditary chief and representative of the Witset Band Council. M.C.W., Tricia Purnell, social worker and delegate for the Director and T.K. and C.K. also attended the November 14, 2019 hearing.

[99]        At the conclusion of the November 14, 2019 hearing, I reserved my decision on M.C.W.’ November 7, 2019 application. This is my ruling on that application.

[100]     I allowed M.C.W.’s abridgment application as it was essentially unopposed and all parties present appeared prepared to argue the merits of November 7, 2019 application. I did not, however, have the benefit of any evidence beyond that provided by M.C.W. in her October 11, 2019 affidavit. Nevertheless I heard the submissions of counsel and the Band representatives.

[101]     Counsel for the Director opposed M.C.W.’ request the hearing of her Charter application and the Director’s CCO application be scheduled in priority of all other matters. Ms. Rajotte advises the Attorney General would not be in a position to proceed until it received further particularization of M.C.W.’ Charter challenge. Mr. Lawson argues the Attorney General has all the particulars necessary. Ms. Jack was uncertain as to the availability of Lake Babine Nation’s legal counsel. I also understand from Mr. Fitzmaurice and Ms. Jack that D.J.R.F., C.R.F.W.’s father, has renewed interest in these proceedings and may be retaining legal counsel.

[102]     Despite the uncertainty, given the age of the children and the time they have been in care, I directed the parties to fix a two day hearing of M.C.W.’ Constitutional Question Act application (Document 118) and a four day hearing for the Director’s November 6, 2018 application (Document 91).

[103]     I was not and am not prepared to allow M.C.W.’ application for an order fixing hearing dates no later than February 1, 2020, or for an order her hearings have priority over any other matter scheduled before this Court. After canvassing the availability of hearing dates with the JCM, I advised the respondents there was court time in early 2020 if all counsel were available. Granting the order sought would require the Court to engage in an extensive and time-consuming examination of what matters are currently scheduled in this Court in the upcoming months and reassess the relative urgency of those matters. As Mr. Fitzmaurice has pointed out, the JCM, when scheduling court appearances, already observes a hierarchy of priority, in which CFCSA matters enjoy some prominence.

[104]     In this case, M.C.W.’ four youngest Children are currently residing with T.K. and C.K., which is exactly where M.C.W. wishes them to remain. The oldest child, B.C.W., appears to make her own decisions as to where and with whom she will live. The only instability of which I have been made aware is the issue of the Director facilitating visits between R.F. and C.R.F.W.

[105]     In support of her application for an order restricting interim access between the Children and any person outside the [omitted for publication], M.C.W. relies on ss. 2(a) and 98(1)(c) of the CFCSA. For ease of reference, I have reproduced these sections in their entirety:

[106]     The following provisions are also relevant to this application:

[107]     The Director references Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families (the “Act”), which received Royal Assent on June 21, 2019. This legislation was co-developed with Indigenous, provincial, and territorial governments with the goal of keeping Indigenous children and youth connected to their families, communities, and culture. It follows Canada’s ratification of the United Nations Convention on the Rights of the Child and commitments to implementing the United Nations Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission of Canada's Calls to Action, which includes enacting Indigenous child-welfare legislation.

[108]     The Act comes into force on January 1, 2020. It prioritizes Indigenous law, confers jurisdiction over child and family services to Indigenous peoples, and outlines guiding principles for delivering child and family services. The purpose and guiding principles of the new legislation is set out in para. 8, which state:

[109]     The Act establishes that, when determining the best interests of an Indigenous child, primary consideration is given to the child's physical, emotional and psychological safety, security and well-being. The Act emphasizes Indigenous children’s right to stay with their families and communities and grow up immersed in their cultures. It states

[110]     The Act further provides:

[111]     In her affidavit M.C.W. describes the traumatic effect on C.R.F.W. after been forcibly removed from her caregivers to spend time with R.F. in [omitted for publication]. She says C.R.F.W. was taken from C.K., who is the only mother C.R.F.W. has ever known, and shipped off to a total stranger in furtherance of the Lake Babine Band’s political agenda.

[112]     Ms. Jack has been active in facilitating access between R.F. and C.R.F.W., both locally and in [omitted for publication]. In her view, it is important that C.R.F.W. have an opportunity to get to know her sister and extended family. Ms. Jack acknowledges some of the early visits were difficult for C.R.F.W., who is extremely bonded to C.K. Ms. Jack says the transitions are now going smoothly and C.R.F.W. appears to enjoy her time with R.F.

[113]     Mr. Robinson says that in Witset, the father clan supports the mother clan. The hereditary chiefs encourage children who cannot be with their immediate families, to be placed with extended families within the community. He acknowledges this is not always possible, and sometimes the children are placed with non-Indigenous families, which can work well with appropriate cultural plans. Mr. Robinson agrees with Ms. Jack that all children should be aware of who they are and have an opportunity to know their relations.

[114]     Mr. Fitzmaurice argues there is no authority in the CFCSA or the jurisprudence interpreting that legislation for this Court to make the order which M.C.W. seeks. He points out that s. 2(c), which enshrines a child’s right to be protected from “abuse, neglect and harm or threats of harm” must be considered in conjunction with the other guiding principles. In particular, the Court must consider s. 2 (b.1), which provides that Indigenous families and their communities share responsibility for the upbringing and well-being of Indigenous children, and 2 (f) which holds that Indigenous children are entitled to learn about their culture and belong to their Indigenous communities.

[115]     Director’s counsel submits that facilitating visits between C.R.F.W. and R.F. does not constitute abuse or harm. Cultivating this connection is part of the Director’s obligation to maintain or facilitate contact with a child in care’s extended family. In this case, C.R.F.W.’s extended family differs from that of her siblings because it includes R.F. D.J.R.F. is the father to only one of M.C.W.’s five children. Consequently, C.R.F.W. will always have separate familial interest which are distinct from her siblings.

[116]     Mr. Fitzmaurice submits that s. 98(c) of the CFCSA, upon which M.C.W. basis her application for an order restricting access, is not intended for that purpose. It is clear the section is to empower the court to make protective intervention orders where children are been prostituted or otherwise exploited or abused. Section 98 applications are quasi-criminal in nature and procedure: B.C. (Director of family and child services) v. L.(D.), 2002 BCPC 190 (CanLII). I agree with Director’s counsel that s. 98(c) was not intended for the purposes for which it is being proffered in this hearing.

[117]     The purpose of the CFCSA is to protect children from harm and the threat of harm. It is the Director who is legislated to investigate child protection concerns and offer services to the family in order to remediate those concerns. In this case, the Children are in the temporary custody of the Director pending the outcome of the CCO hearing. Section 1 of the CFCSA assists in defining the scope of the Director’s responsibilities. It states in part:

[118]     It is the Director, not the Court, who exercises the parental responsibilities for a child in care. In my view, facilitating visits between C.R.F.W. and her half-sister falls squarely within the Director’s legislated rights, duties and responsibilities as her custodian and guardian. It is unfortunate the visits got off to a rocky start, but I accept Ms. Jack’s submissions the transitions are now trouble-free, and those involved have learned from this experience. In conclusion, I do not find these visits constitute the type of exploitive, abusive or intimidating conduct s. 98 of the CFCSA is intended to target. The evidence of harm or abuse is a far cry from that which would persuade a Court to grant a restraining order.

[119]     Accordingly, I will not allow M.C.W.’s application for an order restricting access between her Children and any person outside the [omitted for publication] pending the conclusion of these proceeding.

[120]     M.C.W.’s November 7, 2019 application for priority scheduling and restricted access visits is dismissed.