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British Columbia (Director of Child, Family, and Community Services) v. E.R.G., 2023 BCPC 49 (CanLII)

Date:
2023-03-10
File number:
F10327
Citation:
British Columbia (Director of Child, Family, and Community Services) v. E.R.G., 2023 BCPC 49 (CanLII), <https://canlii.ca/t/jw8c2>, retrieved on 2024-03-29

Citation:

British Columbia (Director of Child, Family, and Community Services) v. E.R.G.

 

2023 BCPC 49

Date:

20230310

File No:

F10327

Registry:

Courtenay

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

     

 

IN THE MATTER OF

THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46

AND THE CHILDREN:

 

S.W.B., born [omitted for publication]

D.K.B., born [omitted for publication]

 

BETWEEN:

 

DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE

APPLICANT

 

AND:

E.R.G.

PARENT

AND:

G.S.B.

PARENT



     

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE T. GOUGE

 

 

Counsel for the Director:

P. Armstrong

Counsel for the Parent, E.R.G.:

J. Orrego

Counsel for the Parent, G.S.B:

G. Fogarty-Greenshaw

Place of Hearing:

Courtenay, B.C.

Date of Hearing:

February 24, 2023

Date of Judgment:

March 10, 2023

 


The Issue

[1]         Mr. B. and Ms. G. are the parents of two children, ages four and five.  The children are presently in the care of Ms. G.’s parents, having been placed there by the Ministry of Children & Family Development (“the Ministry”).  Mr. B., Ms. G. and Ms. G.’s parents all live in or near [omitted for publication], British Columbia.  However, Ms. G.’s parents propose to move with the children to [omitted for publication], British Columbia. Ms. G. and the Ministry are of the view that the proposed relocation would benefit the children.  Mr. B. is of the contrary view.

[2]         Mr. Armstrong, counsel for the Ministry submits that Mr. B. has no standing to oppose the proposed relocation, and has asked that I decide that question.

History

[3]         On November 25, 2020, this court ordered that the children be placed in the temporary custody of the Ministry, pursuant to section 35(2) of the Child, Family & Community Service Act RSBC 1996 c 46 (“the CFCSA”).

[4]         On March 10, 2021, this court ordered, pursuant to section 41(1) of the CFCSA that the children be returned to the parents, under the supervision of the Ministry, for a period of three months, and that they “… reside in the maternal grandparents’ home unless otherwise agreed upon …”.

[5]         On June 3, 2021, the parents met with officials of the Ministry and agreed that:

a.   each parent is a guardian of the children;

b.   Mr. B. would have parenting time each Sunday, to be supervised at the discretion of Ms. G.

[6]         On October 5, 2022, this court made an order that the children “… remain in the interim custody of …” Ms. G.’s parents under the supervision of the Ministry. Mr. B. and Ms. G. consented to the order.

[7]         On November 30, 2022, this Court ordered that the children “… shall remain in the temporary custody of [Ms. G.’s parents] under the supervision of [the Ministry] for a period of 3 months …”.

[8]         The three-month period expired at the end of February, 2023.  However, the Ministry has filed an application, pursuant to section 54.01 of the CFCSA, for an order that the children be permanently transferred to the custody of Ms. G.’s parents.  That application has been adjourned to its scheduled hearing date of June 26 – 28, 2023.  In that circumstance, the interim custody order dated November 30, 2022 is extended by section 61 of the CFCSA to the end of the hearing in June.

Relocation

[9]         Sections 65 – 70 of the Family Law Act SBC 2011, c 25 (“the FLA”):

a.   define “relocation” as “ a change in the location of the residence of a child … that can reasonably be expected to have a significant impact on the child’s relationship with …” a guardian or other person having “…a significant role in the child’s life …”;

b.   require a guardian who wishes to relocate with a child to give 60 days’ written notice to “…all other guardians …”;

c.   if any guardian objects to the proposed relocation, provide for a hearing to determine whether the proposed relocation is in the best interests of the child.

[10]      Only a guardian has standing to object to a proposed relocation: S.J.F. v. R.M.N., 2013 BCSC 1812 (CanLII), [2013] BCJ No. 2175; 2013 BCSC 1812; 40 RFL (7th) 177 at para. 64.  Mr. Armstrong, on behalf of the Ministry, submits that Mr. B. is no longer a guardian of the children, and so has no standing to object to the relocation.

Guardianship

[11]      As noted in paragraph 5, above, the Ministry met with the parents in June 2021 and mediated an agreement including a term that both parents were then guardians of the children.  The question is whether some subsequent event has caused Mr. B. to cease to be a guardian.

[12]      Section 47 of the CFCSA provides that any person who has custody of a child under an interim order has the same rights and responsibilities in relation to the child as do the child’s guardians, except the right to consent to the child’s adoption.  As a consequence, Ms. G.’s parents are also guardians of the children.

[13]      Mr. Armstrong, counsel for the Ministry says that Mr. B. and Ms. G. are no longer guardians of the children because section 47(3) of the CFCSA specifically empowers the court, when making an interim custody order, to empower the parents to consent to health care for the child or to make “necessary decisions about the child’s education and religious upbringing”.  He says that this necessarily implies that, when an interim custody order is made, the parents cease to have any powers or responsibilities of guardians other than the two expressly mentioned in section 47(3).

[14]      I refer to Normandin v. Canada, 2005 FCA 345; [2006] 2 F.C.R. 112 at paras. 26 – 32 (leave to appeal refused at [2006] SCC No. 65).  At para. 28, the court quoted with approval the following passage from Alimport (Empresa Cubana Importadora de Alimentos) v. Victoria Transport Ltd., 1976 CanLII 206 (SCC), [1977] 2 S.C.R. 858 at page 862:

The principle that the mention of a particular case excludes application of other cases not mentioned is far from being recognized as a general rule of interpretation. On the contrary, an affirmative provision of limited scope does not ordinarily exclude the application of a general rule otherwise established.

[15]      Mr. Armstrong’s submission is also difficult to reconcile with s. 50(1) of the CFCSA, which provides that, when an order is made placing a child in the continuing custody of the Ministry, the Ministry becomes the “sole” personal guardian and the Public Guardian and Trustee becomes the sole property guardian of the child.  If, as Mr. Armstrong submits, the child’s former guardians cease to be guardians on the making of an interim order, section 50(1) would be unnecessary.

[16]      Mr. Armstrong submits that, if:

…parents retained guardianship rights after the Director removed a child …it would nullify or undermine the Director’s ability to act in the exercise of its statutory powers under the CFCSA.  When the Director removes a child, it often needs to make decisions (often urgent) respecting where and with whom the child will live, respecting children’s cultural, linguistic, religious and spiritual heritage, respecting medical, dental and other health-related treatments, etc., etc.  Often the very purpose of removing is to allow the Director to act on these issues and it cannot be hindered or challenged by a parent exercising guardianship.

I often see cases in which guardians disagree on important issues about a child’s care.  For example: (i) when the biological parents have separated, they often disagree; or (ii) where a child’s mother has remarried, the father and step-father often disagree.  The differing views of the various participants often assist the court to draw inferences about the children’s best interests.  It is the function of this court to adjudicate such disagreements in the best interests of the child.  I don’t think that different principles or practices should be followed when the Ministry, or someone chosen by the Ministry, is a guardian, and I find no support for such a concept in the statutes.

Conclusion

[17]      Mr. B. continues to be a guardian of the children, and has standing to oppose their proposed relocation.

 

 

____________________________

The Honourable Judge T. Gouge

Provincial Court of British Columbia