IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Director applies to extend a temporary custody order and the total period of temporary custody for one child, L.A.M.B. born [omitted for publication] (“L.”).  For the reasons given below, I conclude the Director has lost jurisdiction in this proceeding and I must dismiss the application.

[2]         All of the parties have signed written consents to the orders sought by the Director.  L.’s mother is L.P.M.  L.’s father is W.B.  L. is registered to the [omitted for publication] First Nation.  The current caregivers, T.S. and V.S. are relations of L. and reside in [omitted for publication].

[3]         L. was removed from the care of her parents on April 10, 2020 because of concerns of domestic violence and alcohol misuse.  Prior to the removal, the Director was supervising the care of L. pursuant to orders in place from April 29, 2020.

[4]         The first temporary custody order (the “Initial Order”) was granted on July 24, 2020.  Following that date, the Initial Order was extended a number of times, as was the total period of temporary custody pursuant to s. 45 of the Child, Family and Community Service Act (the “Act”).

[5]         The Director applied to vary the Initial Order to provide that the caregivers have custody of L. under the Director’s supervision.  On December 29, 2021, an order was granted on that application on the following terms:

[6]         On April 6, 2022, social worker Jessica Bauman realized the December 29 Order had expired.  Ms. Bauman testified that she had procedures in place to diarize the order expiration dates but for a variety of reasons, including illness, working from home, and computer issues, she missed the date.  A legal assistant from counsel for the Director’s office deposed an affidavit in which she described the office system to diarize limitation dates and next court dates.  She deposed that because the December 29 Order was spoken to in court by an agent, and the agent drafted the December 29 Order.  The legal assistant forgot to enter the limitation date in the office calendars.

[7]         On April 7, 2022, the Director filed the application to extend the December 29 Order pursuant to s. 44(3)(b) of the Act and the details of the order sought are described as follows:

[8]         Given my conclusion with respect to the application to extend the December 29 Order under s. 44 of the Act, it follows that the application to extend the total period of temporary custody under s. 45(1.1) of the Act also fails.

[9]         The issue in this application is whether an expired temporary custody order can be extended retroactively.

[10]      The Director argues the court is obligated to consider the best interests of the child and the provisions of s. 2(g) of the Act at all stages of the proceeding.  The Director acknowledges its error in filing its application after the expiry of the December 29 Order but argues the court must always consider the potential impact to the safety and well-being of the child in its assessment as to whether to refuse the Director’s application.

[11]      Counsel for the Director states she could find no case authorities dealing with similar facts.

[12]      The Director states its long-term plan for L. is to apply for the extension of the December 29 Order and, upon the expiry of that order, to apply for a permanent transfer of custody of L. to the current caregivers pursuant to s. 54.01 of the Act.  The Director argues the delay resulting from a potential loss of jurisdiction would not be in L.’s best interests and would be contrary to s. 2(g) of the Act.  The delay, the Director argues, results from the necessity of re-removing L., moving on to a presentation hearing, followed by a protection hearing before being able to proceed with the application to permanently transfer custody of L. to the caregivers.

[13]      The Director argues that all of the parties are consenting to the present application and its error in failing to file the extension application before the expiry of the December 29 Order can be cured.

[14]      The Director relies upon Director v. N.W., 2018 BCPC 30, in which a parent applied for a declaration that the court had lost jurisdiction in the proceeding because of the inordinate delay in concluding the protection hearing.  The court concluded that the provision of the Act requiring that the protection hearing must conclude as soon as possible was directory and not mandatory.  As such, the consequences of a breach of that timeline was not intended by the legislature to result in an automatic loss of jurisdiction.  Before a nullity in the proceedings can be found, the court must be satisfied the resulting delay (i.e. re-removal of the child) is not contrary to the best interests of the child. The court found that although there was a breach, in that the protection hearing was not completed in a reasonable period of time, the Director did not lose jurisdiction.

[15]      The Director further argues that I ought to follow the decision of British Columbia (Superintendent of Family & Child Services) v. N.A., [1983] B.C.J. No. 120, in which McEachern J. (as he then was) concluded the Provincial Court judge lost jurisdiction when he failed to complete the protection hearing within a reasonable time.  McEachern J. ordered the children to remain in the care of the Superintendent until a new trial of the matter could be heard and his authority to do so was based upon his inherent jurisdiction both in parens patriae and in injunction.

[16]      L.P.M. acknowledges the child protection concerns have not yet been mitigated and the current best placement for L. is with the caregivers.  She consents to the order sought but will contest the Director’s intended application for permanent transfer of custody.  L.P.M.’s ultimate goal is to resume care of L.

[17]      The parties have all consented to the Director’s application.  However, the court cannot make orders that are without foundation in law even when that order is purported to be by consent and supported by written consent pursuant to s. 60 of the Act.  Accordingly, the fact that the parties have all signed written consents in support of this application is not determinative.

[18]      Provincial Court judges do not have inherent jurisdiction, parens patriae jurisdiction or the power to grant common law injunctions.  Provincial Court judges derive their authority to make orders from legislation and from the rules of court.  Accordingly, I can only grant orders, in this case, based upon the provisions found in the Act or the Provincial Court (CFCSA) Rules (the “Rules”).

[19]      I cannot accede to the Director’s argument that I can grant a “retroactive” extension order based on inherent jurisdiction or powers of injunction.  I may only grant the order sought by the Director if the provisions of Act or the Rules support the application.

[20]      The decisions of N.W. and N.A. are distinguishable on their facts.  In those cases, the court was considering the issue of delay in concluding a protection hearing which is an entirely different issue.  The issue of delay in that context involves an analysis of the child’s best interests.  For reasons explained below, the loss of jurisdiction in this case does not engage an analysis of the child’s best interests.

[21]      The relevant portions of s. 44 of the Act are as follows:

[22]      Should the Director wish to apply to extend a temporary custody order, s. 44(1) of the Act clearly requires the Director to apply before the order expires.  Section 44(3) of the Act sets out the legal test to determine whether to grant the extension of the temporary custody order.  Namely, the court must be satisfied that the circumstances that caused the child to need protection are likely to improve within a reasonable time and that the order sought is in the child’s best interests.

[23]      The best interest test applies to the analysis of whether the extension order should be granted under s. 44(3) of the Act.  The best interest test does not apply to s. 44(1) of the Act, which requires the Director to apply for the extension before the order sought to be extended has expired.

[24]      Section 61 of the Act contains provisions to allow the child to remain in the custody of the Director during court adjournments of an application to extend a temporary custody order:

[25]      Section 61 of the Act contemplates circumstances where the temporary custody order expires during the adjournment, meaning after the application to extend is filed.  Again, it is the clear intention of the Act that the Director must apply to extend a temporary custody order before that order expires.

[26]      The court cannot revive an expired order for the purpose of extending that order.  Temporary custody orders remain in effect for the express term of the order, which in this case is three months leading to an expiry date of March 29, 2022.  The Director applies to extend the December 29 Order when it is no longer in effect and there is no order to extend.

[27]      In the circumstances of this case, the Director filed its application within one day of realizing its error in allowing the December 29 Order to expire.  I accept that the Director took immediate steps to attempt to remedy the situation.  However, I do not find this factor to be relevant to the outcome of this case.  It is of no importance whether the application before me was filed one day, two days or nine days after the expiry of the December 29 Order.

[28]      The guiding principles in s. 2(g) of the Act require the court to interpret and administer the Act so that the safety and well-being of the child are the paramount considerations and so that decisions relating to the child are made and implemented in a timely manner.  However, I simply cannot grant an application to extend an order brought after the order has already expired.  Section 2(g) of the Act does not operate to cure the Director’s error or to confer authority upon me to grant orders that are not permitted under the provisions of the Act.

[29]      The Director did not apply to extend the December 29 Order before it expired.  I have no authority in the Act to extend the December 29 Order in these circumstances.  The Director’s application is dismissed.