IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On August 15, 2019, the Director of Child, Family and Community Service (the “Director”) removed the children, B.C.S. (born [omitted for publication]) and E.S. (born [omitted for publication]) (the “children”), from their parents, S.M.S. and K.W.F. pursuant to s. 30 of the Child, Family and Community Service Act (the “Act”) due to protection concerns regarding S.M.S.

[2]           After removal, the children were returned to their mother, K.W.F., under the supervision of the Director. S.M.S.’s access to the children has been at the discretion of the Director.

[3]           The Director seeks an order pursuant to s. 35(2)(b) of the Act that the children remain in K.W.F.’s care under the supervision of the Director.

[4]           A presentation hearing began February 2, 2020 and is currently underway, with the balance of the evidence to be completed by affidavits and interrogatories due to the recent public health emergency declared by the Province as a result of the COVID-19 pandemic.

[5]           S.M.S. contests the removal. Pending the conclusion of the presentation hearing, S.M.S. has brought an application pursuant to s. 55 of the Act for increased access in line with his parenting time under an existing Family Law Act order. He further seeks an order for complete document disclosure in relation to the Ministry of Child and Family Development’s (“MCFD’s”) child protection investigation in this matter.

[6]           S.M.S.’s application is opposed by the Director and by K.W.F.

[7]           The Presentation Form and Report to Court (collectively, “Report to Court”) outlining the circumstances of the removal were filed on August 22, 2019 in accordance with s. 35(1) of the Act.

[8]           According to the Report to Court, The Director’s first involvement with the parties dates back to 2013 due to concerns of drinking in the home and domestic violence.

[9]           More recently, the Director obtained an interim supervision order on October 4, 2018 with the children remaining in the care of both parents, followed by a six month temporary supervision order on December 13, 2018. This order was then cancelled on March 21, 2019 under s. 57(3) of the Act after the parties ended their relationship, and S.M.S. moved out of the family home.

[10]        At the time of the most recent removal, the parents were engaged in a Family Law Act (“FLA”) proceeding, with an interim order in place allocating access and parenting time between them. Under this order, S.M.S. had weekly unsupervised access to the children, including weekly overnight parenting time from Saturday until Tuesday.

[11]        According to the Report to Court, K.W.F. took the added step of obtaining a protection order in the FLA proceeding due to concerns that S.M.S. was stalking her. The protection order did not apply to the children and S.M.S. continued to exercise parenting time until the most recent removal.

[12]        The Report to Court further states that S.M.S. was arrested in Penticton on July 2, 2019 for stalking K.W.F., and on August 7, 2019, he was arrested for criminal harassment in relation to stalking K.W.F. in the community.

[13]        By operation of the Act, the removal served to suspend the parenting time between the children and S.M.S. under the FLA order owing to protection concerns regarding S.M.S.

[14]        Since the removal, S.M.S. has had, for the most part, supervised access to the children twice a week (although due to the recent COVID-19 pandemic, supervised visits are no longer occurring, but arrangements for other forms of tele/audio access were, at the time of the tele-hearing, “in the works”).

[15]        A presentation hearing date was eventually agreed upon between the parties for December 12, 2019, but did not proceed. Instead, the parties attempted to mediate an access schedule to increase S.M.S.’s time with the children. The mediation efforts were unsuccessful.

[16]        S.M.S. then brought an application for holiday access to the children on December 19^th. The application did not proceed as the parties were able to resolve the issues by agreement. Under this agreement, S.M.S. received additional family supervised access to the children, with his mother and sister supervising.

[17]        In early January 2020, the Director terminated the family supervised access arrangements owing to social worker concerns that S.M.S. was unable or unwilling to comply with the MCFD instructions regarding family supervised visits.

[18]        The presentation hearing began on February 3, 2020. The hearing occupied two full hearing days of court time, with a further continuation date set on March 25^th (but did not proceed for the reason discussed below).

[19]        S.M.S. brought a further access application on March 10, 2020, seeking to restore the parenting arrangements that were in place under the FLA order in time for the March spring break. He also sought full disclosure of “all documents” held by the Director in relation to the MCFD’s ongoing investigation of this matter. The first appearance on this application took place on March 12, 2020.

[20]        S.M.S.’s application was set for hearing before me on March 19^th, in remand court. Counsel for the Director raised a preliminary objection to the application, submitting the matter was premature pending an order at the conclusion of the presentation hearing. After hearing reply submissions from the parents, I adjourned S.M.S.’s application to March 25^th (the next continuation date) and advised the parties that I would either hear more fulsome submissions on the preliminary objection, or I would adjourn the application until after the conclusion of the presentation hearing.

[21]        The presentation hearing did not resume on March 25^th as scheduled due to the Province’s declared State of Emergency arising from the COVID-19 pandemic.

[22]        Accordingly, I issued a memorandum to counsel on March 24^th cancelling the hearing date and directing that the balance of the evidence of the parties would be heard by affidavit and interrogatories. I indicated to counsel that I would need to hear from them by the end of that week as to how the parties wished to proceed with S.M.S.’s application.

[23]        Counsel for S.M.S. advised the Court of her client’s intention to proceed with his application. Written submissions were subsequently provided by counsel for S.M.S. and the Director. (Counsel for K.W.F. did not provide written submissions but instead made oral submissions at a tele-hearing.)

[24]        The issue of jurisdiction was decided at a tele-hearing between all counsel and the Court on April 9^th. After hearing the oral submissions of counsel on the preliminary objection, I gave an oral ruling dismissing both grounds of relief sought by S.M.S. on this application with brief written reasons to follow.

[25]        These are my reasons.

[26]        The children were removed pursuant to s. 30 of the Act. This section states in part:

[27]        Section 35 of the Act governs the next steps after a child has been removed by the Director. The focus of this section is the presentation hearing. Under s. 33.3 of the Act, the presentation hearing is summary in nature. It is “designed to allow the Director and parents or other parties to present some evidence to the court in support of their respective positions. A presentation hearing is also a means of providing some safeguards to families and children to ensure that a child is not arbitrarily taken into care”: Director v. LDS and CCC, 2018 BCPC 61, at paras. 59-60.

[28]        At the presentation hearing, the Director must establish the requirements of s. 30(1) are met. Section 35(1) states what must occur at a presentation hearing and states:

[29]        Pursuant to s. 35(2), at the conclusion of the hearing, the Court must make one of four orders:

[30]        Counsel for the Director submits that although there are various provisions in the Act that govern a parent or a guardian’s access to a child that has been removed, there is no provision in the Act with respect to children that have been removed and for whom no order under s. 35 has yet been made.

[31]        Counsel for S.M.S. disagrees and submits the authority for bringing this application is found under s. 55 of the Act. This section states in part:

[32]        S.M.S. submits that Director’s lengthy delay, some 150 days since the removal date, to begin the presentation hearing has disrupted his ability to have a meaningful relationship with his two young children, and that such delay is unreasonable and contrary to the guiding principles and best interests of the children that govern the Director’s actions under ss. 2 and s. 4(1) of the Act.

[33]        S.M.S. further raises the spectre of a potential Charter violation of S.M.S.’s s. 7 and 11(b) rights in this child protection proceeding by suggesting that his rights as a parent have been tainted by the criminal harassment charges, which he is presumed at law to be innocent of until convicted at trial. In drawing upon these Charter principles, Counsel submits the manner in which S.M.S. has been targeted by the Director as the cause of the protection concerns in the home is unfair and prejudicial to his rights as a parent.

[34]        Finally, S.M.S. submits the Director has a duty to consider the options presented by S.M.S. for increased access by means of family supervised visits in his supporting materials “without delay”: LS v. British Columbia (Director of Child Family and Community Service), 2018 BCSC 255, at para. 37. He submits the Director has unreasonably “refused increased access options to extend the time that S.M.S. has with his children”.

[35]        The long delay for the presentation hearing coupled with the Director’s refusal to consider further access alternatives, are the reasons he brings the access application. S.M.S. relies on the LS decision for these reasons in his assertion that he ought to be granted access and submits this Court has jurisdiction under s. 55 of the Act to decide the application at the presentation stage of this proceeding.

[36]        The Director submits that because the children are currently the subject of a presentation hearing and that until an order is made pursuant to s. 35(2) of the Act, s. 55 does not apply and thus, this Court is without jurisdiction to hear S.M.S.’s access application. K.W.F. supports this submission.

[37]        The Director also relies on the LS decision as authority in support of this position. In LS, the mother of an newborn infant brought an application in Supreme Court for increased access under the parens patriae power during the presentation stage of a child protection proceeding in Provincial Court.

[38]        In that case, Murray J. found that there was a legislative gap in the Act with respect to the wording of s. 55 and thus the Provincial Court could not make an order for access where an interim order had not been made and where the presentation hearing had not yet completed. This situation left the mother in a “hopeless situation” occasioned by the delay it would take to get back before the Provincial Court to conclude the presentation hearing.

[39]        Murray J. was then asked to consider exercising her parens patriae powers to grant the relief sought by the mother. At para. 30, Murray J. explained:

[40]        Murray J. held that the Provincial Court had no jurisdiction under s. 55 of the Act to make an order for access where an interim order had not yet been made and while a presentation hearing was pending. At paras. 31- 32, Murray J. explained:

[41]        To remedy the “unfairness” of the situation in LS and in the “best interests” of the newborn child, Murray J. exercised her parens patriae power and granted increased access to the mother to the infant pending the completion of the presentation hearing, holding:

[42]        On a plain reading of s. 55 of the Act, it is my opinion that the triggering event for an access application is an “order”, which would include an interim order under s. 35(2). On the authority of the LS decision, S.M.S.’s application for further access to the children cannot proceed until either an order or an interim order is made at the completion of the presentation hearing. As this Court is a statutory court, the parens patriae power is not available to a judge of the Provincial Court, and therefore, I do not have jurisdiction to hear S.M.S.’s access application at this time.

[43]        S.M.S. contends that he has been provided inadequate disclosure by the Director and requires full disclosure of the Director’s investigation files to further proceed with the presentation hearing. Few details as to what is sought by S.M.S. in terms of disclosure were set out in the application materials and the submissions of counsel. When queried during submissions as to the scope of the documents S.M.S. seeks prior to the completion of the presentation hearing, counsel advised that there were “recent supervision reports” which had not been provided in the disclosure received from counsel for the Director.

[44]        Section 64 of the Act defines the statutory minimum disclosure requirements that applies to all parties to a protection proceeding equally: T.L.K. v. Director of Child Family and Community Service [1996] B.C.J. No. 2554, at para. 64. Section 64 states:

[45]        In keeping with the common law principle of fairness in the duty of disclosure, and having regard to the disclosure requirements of s. 64 of the Act, Stansfield PCJ, at para. 14, established the following disclosure guidelines in child protection matters, which I set out in full below:

[46]        In applying these guidelines to the Director’s disclosure obligations in the present case, it must be borne in mind that the Director’s application is for a supervision order. In such circumstances, “the minimum requirements” for disclosure under s. 64 are sufficient as the Director “is seeking minimal interference in the child/parent relationship” under this form of order: T.L.K., supra, at para. 14, guideline 3.

[47]        Counsel for S.M.S. received an initial disclosure package on January 20, 2020, that included the Report to Court and the documents relied on by the Director at the presentation hearing. Additionally, the Director provided further disclosure to counsel for S.M.S., totalling 764 pages of material, including the running record of notes kept by the social worker, access reports, and other related file material prior to the presentation hearing.

[48]        S.M.S.’s complaint of inadequate disclosure lacks the specificity needed to properly assess whether there is a basis for the complaint. In my view, S.M.S.’s application is tantamount to a fishing expedition which will only serve to further delay the completion of the presentation hearing.

[49]        I am satisfied that the disclosure provided by the Director to date is more than sufficient to meet the minimum standard required by s. 64 of the Act, and in fact, the Director exceeded the disclosure guidelines set out by Stansfield PCJ in T.L.K. in this matter.

[50]        In conclusion, S.M.S.’s application for access is dismissed as the presentation hearing is still underway and the Court is without jurisdiction to hear the application until an order is made.

[51]        As I outlined to counsel at the conclusion of the tele-hearing, the issue of access can be properly addressed at the conclusion of the presentation hearing as part of the determination of what the interim plan of care for the children should be. However, if S.M.S. wishes for a court to exercise the parens patriae power before the conclusion of the presentation hearing, then he must apply to the Supreme Court for relief.

[52]        S.M.S.’s application for further document disclosure is also dismissed.