Director v M.G.N. and M.D.J., J.M.S., and M.J., 2023 BCPC 154.
Summary
J.M.S. is applying for an order under the Family Law Act (FLA) to be added as a guardian to the Child, Family and Community Service Act (CFCSA) proceedings. J.M.S. is former foster parent of the child, M.J.N., and such an order would provide her all-parenting responsibilities. Court makes clear they are not determining if J.M.S. is a guardian, only if…
Read Full Text ▼J.M.S. is applying for an order under the Family Law Act (FLA) to be added as a guardian to the Child, Family and Community Service Act (CFCSA) proceedings. J.M.S. is former foster parent of the child, M.J.N., and such an order would provide her all-parenting responsibilities. Court makes clear they are not determining if J.M.S. is a guardian, only if J.M.S. has standing to bring this application. Ferriss, J. determines that restricting who can apply for guardianship within interpretation of legislation is predetermining a child’s best interest – this cannot happen as best interest needs to be a case-by-case determination. Thus, J.M.S. has standing to apply to be a guardian.
Region
British Columbia
Treaty Region(s)
N/A
Date
2023-07-05
Nation Name
None.
Jurisdiction
- BC: Provincial Court of British Columbia (BCPC)
Case Year
2023
File Type: application/pdf
File Size: 269 KB
Case Brief
Case Link
(www.canlii.org)
Issues
Whether J.M.S. has standing to bring her application under the FLA
Relevant Excerpts
[34] Nothing in s. 51 limits who can apply to be a guardian and I note that, while s. 51 of the FRA refers to the CFCSA, there is no limit placed on the foster parents’ standing to apply to be guardians.
[59] Section 50 sets out the effect of a continuing custody order. The Director becomes the sole personal guardian of the child and may consent to the child’s adoption. The Public Guardian and Trustee becomes the sole property guardian of the child. Any guardianship orders under the FLA are no longer of any effect.
[60] The case law is clear that once the Director has obtained a CCO, foster parents have few rights regarding the child in their care. For instance, they have no right to petition for adoption unless the Director consents to that adoption; they have no standing to apply to set aside a CCO under s. 54 of the CFCSA; and they have no standing to ask the court to return a child to them if the Director decides to move the child to another foster home.
[103] The Supreme Court determined that it would be unfair to permit the foster parents to rely on the bond established between them and the children as foster parents in an application under the FRA. To permit that reliance would be contrary to public policy and would undermine their role as foster parents. It would be unfair to the parents to be in competition with the foster parents and it would override the decision made by the Director.
[136] I find that s. 51 of the FLA must be given its plain meaning which is that on application, any person may be appointed as a guardian. Any person includes a foster parent or former foster parent.
[139] The M. v. W. and K.(P.) decisions were released long before the FLA came into effect. Yet no changes were made to the wording as to who could apply for guardianship. In my view, no changes could be made because it is too difficult to determine who is or will be “family” to a child. To predetermine a child’s best interests by restricting who can apply to be a guardian without hearing evidence on the child’s best interests would be contrary to the Court of Appeal’s decision in W.N. Accordingly, I find that J.M.S. has standing to apply to be a guardian of M.J.N.
Case History
None.
Legislative Citations
Child, Family and Community Service Act, RSBC 1996, c 46. (CFCSA)
Sections 1(“Parent”; “Caregiver”; “Custody”); 2; 32; 40; 41; 45(1.1); 47; 50; 54; 56
Family Law Act, SBC 2011, c 25. (FLA)
Sections 37; 39; 50; 51
Case Law Considered
British Columbia (Director of Family and Child Services) v MK, 2000 BCPC.
British Columbia (Director of Family and Child Services) v PK and TK, 2002 BCSC 1762.
CK v The Director, Ministry of Children and Family Development and British Columbia (Attorney-General), 2003 BCSC 785.
Director and L et al, 2014 BCPC 284.
Director of Child, Family and Community Service v B and D, (12 July 2002).
Director of Family and Child Services v K (P), 2002 BCSC 1762.
Director v ML, 2005 BCPC 77.
Galbraith v Superintendent of Family and Child Service, 1981 CanLII 783 (BCSC).
JMDC v DIDC, 2019 BCSC 172.
JMS v British Columbia (Director of Child, Family and Community Services), 2021 BCSC 2104.
K v HMTQ (BC) & Others, 2003 BCSC 1248.
LJG v NB, 2017 BCSC 350.
LM v British Columbia (Director of Child, Family and Community Services), 2015 BCSC 2261.
LM v British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367.
LM v British Columbia (Director of Child, Family and Community Services), 2016 BCSC 275.
LS and SS v British Columbia (Ministry of Children and Family Development), 2004 BCCA 244.
LS and SS v The Ministry of Children and Family Development et al, 2003 BCSC 429.
M v W, 1985 CanLII 442 (BCSC).
NK v British Columbia (Director, CFCSA), 2008 BCSC 1321.
P (E) v BC (Supt. Of Family and Child Service), 1988 CanLII 2985 (BCCA).
Re Mirasty (sub nom M (R) v C (BA)), 1984 CanLII 5388 (FCA).
RL and TL v Children’s Aid Society of the Niagara Region, 2002 CanLII 41858 (ONCA).
The Director of Child, Family and Community Service v K, 2003 BCSC 742.
TL v British Columbia (Attorney General), 2023 BCCA 167.
WN v CG, 2012 BCCA 149.
Tags: Best interests,
Foster parents,
Parties
