First Nation A v AB, 2020 BCPC 279.

Whether a Provincial Court judge can order that the views and preferences of an Indigenous group be included in an order made under s. 41(1)(d) of the CFCSA, when it is not recommended by the Director. 

If yes, is it in Baby A’s best interests to include the Cultural Plan, or some part of it, in the section 41 CFCSA order, and which parts. 

Sub-issues
Am I (the justice) functus?

Does s. 41(3) of the CFCSA preclude such a step?

Does the new Federal Act impact a Provincial Court judge’s jurisdiction? 

[54] Finally, as discussed below in relation to the impact of the Federal Act on the current application, I have concluded that the Federal Act provides this court with jurisdiction additional to that of the CFCSA; consequently, if I am wrong and have no remaining jurisdiction under the CFCSA, I am satisfied that I have jurisdiction to consider the Nation’s application under the Federal Act, and to make the order sought, if appropriate under that legislation.

[80] If, in interpreting and administering the Federal Act, a Provincial Court judge concluded that an Indigenous child’s best interests under section 10 of the Federal Act required that a step be taken – which step was not authorized by the CFCSA or Rules – the court’s ability to administer the Federal Act in accordance with section 9 would be stymied, absent jurisdiction conferred by the Federal Act upon the inferior court to order the requisite step. A Provincial Court judge’s having no jurisdiction to make orders necessary to administer the Federal Act as prescribed could not have been intended and supports the conclusion that the Federal Act confers jurisdiction to this court in certain circumstances in relation to Indigenous children.

[82] While this result is not provided for in the provincial legislation, the Federal Act is paramount in cases of conflict or inconsistency. (See: section 4 of the Federal Act, discussed below).

[83] I am fortified in my conclusion that the Federal Act confers jurisdiction for this court to order the inclusion of the terms and conditions requested by the First Nation A, in administering the Federal Act in accordance with the section 9 principles, when I consider the alternate result: the provincial Director would have the only voice in relation to recommended terms and conditions for the implementation of a Plan of Care for an Indigenous child; her Indigenous Nation would have none.

[84] In my respectful view, that outcome would be incongruent with the Federal Act’s preamble, which includes:

British Columbia (Children and Family) v AB, 2020 BCPC 278.

First Nation A v AB, 2020 BCPC 279.

• Section 4: Minimum standards
• Section 8: Purpose
• Section 9: Principles
• Section 10
• Section 15: Socio-economic conditions
• Section 16

Child, Family and Community Service Act, RSBC 1996, c 46.  
Sections 1 (“court”, “guardianship”); 40(3); 41; 50(1)(a); 50.01; 54.01; 55(6); 70(1.1); 71(3)

Provincial Court (Child, Family and Community Service Act) Rules, BC Reg 533/95.
Rules 1(2); (3); (4); 7(1); 7(5)

Constitution Act, 1867 (UK), 30 & 31 Vict, c 3.
Section 91(24)

R v Ipeelee, 2012 SCC 13.

R v Garcha, 2000 BCCA 550.

British Columbia (Child, Family and Community Service) v SH, 2020 BCPC 82.

M (RA), [1998] BCJ No. 2208, 1998 CarswellBC 2660.

S v S, 2004 BCPC 354.

Michif CFS v CLH and WJB, 2020 MBQB 99.

Brown v Canada (Attorney General), 2017 ONSC 251.