COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
A.M. v. British Columbia (Director of Child, Family & Community Service) , |
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2008 BCCA 178 |
Date: 20080429
Docket: CA035474
Between:
A.M.
Appellant
(Plaintiff)
And
The Director of Child, Family and Community Service
for the Province of British Columbia
Respondent
(Defendant)
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Before: |
The Honourable Madam Justice Rowles |
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The Honourable Mr. Justice Low |
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The Honourable Madam Justice Levine |
| P. Yaremovich |
Counsel for the Appellant |
| E. Chen |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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March 17, 2008 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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April 29, 2008 |
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Written Reasons by: |
| The Honourable Madam Justice Levine |
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Concurred in by: |
| The Honourable Madam Justice Rowles The Honourable Mr. Justice Low |
Reasons for Judgment of the Honourable Madam Justice Levine:
Introduction
[1] A Provincial Court judge granted the appellant access six times a year to her eight-year-old child, who had been in the continuing custody of the Director of Child, Family and Community Service and in the care of foster parents, who intended to adopt him, since the age of 11 months. A Supreme Court justice, sitting as an appeal judge, allowed the appeal of the Director, and cancelled the access order.
[2] The appeal judge found that the trial judge erred in law in his application of the “best interests of the child” test as defined by the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 (the “CFCSA”), and the relevant legal principles as outlined by the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. L. (M.), [1998] 2 S.C.R. 534. She also found that he made palpable and overriding errors of fact and of mixed law and fact, by disregarding material evidence and considering irrelevant factors in determining the best interests of the child. The reasons for judgment of the Provincial Court trial judge may be found at 2005 BCPC 672, and the reasons for judgment of the Supreme Court justice may be found at 2007 BCSC 1039.
[3] The appellant claims that the appeal judge erred in finding that the trial judge made palpable and overriding errors, substituting her own views of the evidence, and holding that the trial judge did not apply the proper legal principles.
[4] At the hearing of the appeal, the appellant’s argument focused on the interpretation of ss. 55-57 of the CFCSA. She took the position that when the CFCSA was enacted in 1994, it changed the focus of child protection proceedings by providing for more open access by biological parents, and effectively invalidated the legal principles relating to access developed under the former Family and Child Services Act, R.S.B.C. 1980, c. 11, and similar legislation of other provinces, as outlined in New Brunswick v. L. (M.).
[5] In my opinion, the appeal judge made no errors in her analysis and application of the appellate standard of review and the relevant legal principles. I agree with her conclusion, substantially for the reasons she gave, and would dismiss the appeal.
[6] In these reasons, I will comment only on the appellant’s argument, not made either at trial or on appeal to the Supreme Court, that the CFCSA changed the legal principles applicable to access by biological parents to their children in the continuing custody of the Director. To place the discussion of the legislation in context, I will briefly outline the background of this matter.
Background
[7] The child was born on January 24, 1999, when the appellant was 14 years old. She was unable to care for him, and in December 1999 he was apprehended by the Director and placed in the care of the appellant’s child case worker and her husband, who have been his foster parents since and intend to adopt him. In August 2000, the Director obtained an order for continuing custody of the child, giving the Director permanent guardianship and the appellant liberal and generous access at the Director’s discretion.
[8] The appeal judge described the ensuing events as follows (at paras. 5-9):
For a variety of reasons the natural mother did not obtain liberal and generous access to her child pursuant to the CCO [continuing custody order]. Difficulties arose in the relationship between the natural mother and the prospective adoptive mother, which caused their previously close relationship to deteriorate significantly. Eventually, the Director reduced the natural mother’s access to two hours of supervised access twice a month. Subsequently, that access was further reduced to between 30 and 60 minutes of supervised access once a month. Supervision of the access was initially undertaken by the prospective adoptive mother. In January 2004, it was assumed by the child’s social worker.
In due course, the natural mother had another child. That child was also apprehended by the Director.
When the CCO was made, the Director’s plan of care was for the child to be adopted. In the words of the trial judge who made the CCO, the prospective adoptive parents were “the front-runner for that adoption”.
The prospective adoptive parents were and continue to be receptive to an “open” adoption, which would give the natural mother access to the child but subject to their discretion in assessing if this is what the child wishes and is in his best interests.
In January 2002, the prospective adoptive parents started the adoption process. As the natural mother had access rights to the child she was notified of their intention to adopt the child. On February 4, 2003, the natural mother applied for specified access to the child and on February 26, 2003, the Director applied to cancel the existing access order as the first step in adoption process. The natural mother responded on April 23, 2003, by applying to cancel the CCO.
[9] The hearing of the various applications took place over 15 days from February 2004 to June 2005. The appellant abandoned her application to rescind the continuing custody order part way through the hearing, leaving access as the only issue before the trial judge. The appeal judge described the positions of the appellant and the prospective adoptive parents (at paras. 17-19):
It is common ground that the child is being raised in a warm, loving and generous home, that he has emotionally bonded with the prospective adoptive parents, and that it is in his best interests to be adopted by the prospective adoptive parents. They have met all of the requirements for adoption of the child and wish to proceed with their adoption of him, provided the natural mother’s court-ordered access to the child is rescinded. They do not want the cost and emotional turmoil of having to address future applications by the natural mother for changing specified access demands.
The prospective adoptive parents have indicated a willingness to maintain an “open” adoption which would include access by the natural mother to the child after the adoption was completed, provided that access was in the child’s best interests. Such an arrangement, in their view, would permit them to determine the nature and frequency of the child’s access with his natural mother based on their assessment, as the child’s permanent guardians, of what would be in his best interests. They have also stated that they will not proceed with the adoption if they are subject to court-ordered access by the natural mother and the potential that such an order would create for ongoing reviews and variations by the natural mother.
The natural mother does not trust the prospective adoptive parents’ representations regarding access. She believed that when she reached the age of majority the prospective adoptive parents would return the child to her and in the meantime would honour their promise to foster a meaningful relationship between herself and the child. The natural mother seeks to maintain the specified order for access to the child in order to provide her with some security that she may continue to have a relationship with her child.
[10] Thus, the issue before the trial judge was whether a court order for access or an “open” adoption, with an “openness agreement” as provided for in s. 59 of the Adoption Act, R.S.B.C. 1996, c. 5, was in the best interests of the child.
[11] The trial judge concluded that an order for ongoing limited access by the appellant would be in the child’s best interests. He said that “it is in the best interests of [the child] that he stay in the continuing custody of the Director” (at para. 100); that the prospective adoptive parents had not “satisfied” him that they had “come to a positive definitive conclusion that they will abandon” the child by deciding to “give up, either foster parenting…or adopting” him if an access order was made (at para. 102); and that the characteristics of the appellant “cannot have anything but a positive effect on [the child] who otherwise could come to feel abandoned by his natural mother” (at para. 103).
[12] The appeal judge found that the trial judge did not consider the applicable statutory factors and common law principles in concluding that ongoing limited access by the appellant was in the child’s best interests (at para. 38), misapprehended the evidence of the expert witness, and drew unreasonable and speculative inferences from the evidence (at paras. 40-42). She noted that “the evidence suggested that an order for such access would likely jeopardize the child’s adoption by the prospective adoptive parents and cause him distress” (at para. 38), and that the expert witness supported the adoption and was of the view that “continued uncertainty” over the adoption “could jeopardize the child’s welfare” (at para. 39). She found that it was unreasonable for the trial judge to conclude that ongoing access would be in the child’s best interests on the basis of the expert evidence that the child “had not yet shown emotional or psychological problems by the forced visits with the natural mother” (at para. 40), and that there was no evidence that the appellant’s characteristics would have a positive effect and that the child could feel abandoned by her if access were not ordered (at para. 41).
The Legislation
[13] The CFCSA was enacted in 1994. It provided a revised scheme for the protection of children in British Columbia: see British Columbia (Director of Family and Child Services) v. P.K., 2002 BCSC 1762 at paras. 51-53. Of particular relevance to this case, ss. 55 and 56 provide for applications to the Provincial Court for access to a child in the custody of the Director, and s. 57 provides for changes to access orders.
[14] Under the Family and Child Services Act, which was replaced by the CFCSA, there were no express provisions for applications for access to a child in care, and the Provincial Court had no jurisdiction to make access orders. The Supreme Court, in its inherent jurisdiction over infants, as parens partriae, had the power to rescind a permanent order committing a child to the care of the Director in the “child’s best interest and welfare”: s. 21.
[15] The appellant argues that the express provisions for access in the CFCSA, and published policy standards and statements of the provincial government, indicate that the legislature intended that access orders be liberally granted when a child is in the continuing custody of the Director. She maintains that the principles developed in New Brunswick v. L.(M.) reflect the old legislation, and are inapplicable to this new statutory scheme. She claims that in determining whether to make an order for access, a judge is exercising discretion based on the evidence in the particular case, and is not bound by the principles of New Brunswick v. L.(M.) or any other authority.
[16] The Director maintains that the CFCSA has not changed the overall intent of child protection legislation in British Columbia, and the purpose of ss. 55-57 is narrower than the appellant contends. According to the Director, the purpose of ss. 55-57 is to grant jurisdiction and provide guidelines to the Provincial Court to make decisions concerning access to children in the care of the Director.
[17] The Director’s counsel provided a helpful explanation of ss. 55-57 of the CFCSA in the context of the changing interests in the continued involvement of a child’s biological family in the child’s day-to-day life, depending on whether the child is in temporary or continuing custody of the Director, and the plan of care for the child.
[18] The Director says that the overall intent of the CFCSA is to protect children from harm and from threat of harm, and recognizes that the responsibility for caring for children rests with the parents. The role of the Director is to investigate child protection concerns and offer services to the family in order to remediate those concerns: CFCSA, ss. 2, 13, 16.
[19] If a child is found to be in need of protection, the Provincial Court may order that the child be returned to the parent under the Director’s supervision for up to six months, that the child be placed in the temporary or interim custody of the Director or another person, or that the child be placed in the continuing custody of the Director: CFCSA, s. 41. A continuing custody order may be made where there is no significant likelihood that the circumstances that led to the child’s removal will improve within a reasonable time, or the parent will be able to meet the child’s needs: CFCSA, s. 49(5). The court must consider the Director’s plan of care and the best interests of the child: CFCSA, s. 49(6).
[20] Section 55 provides for access before a continuing custody order has been made. Under ss. 55(1) and (2), the parent who had custody when the child was removed any other person may apply to the court for access. Under s. 55(4), “the court must order that the custodial parent be given access to the child unless the court is satisfied access is not in the child’s best interests” (emphasis added). The Director suggests, and I agree, that the intent of this provision is to create a presumption of access for the custodial parent, as “[t]he goal during this period of time is to remediate the child protection concerns sufficiently to enable a child to be returned to his or her custodial parent.” There is no such presumption for applicants other than the custodial parent: s. 55(5).
[21] Section 56 provides for access after a continuing custody order is made. Any person, including the parent, may apply for access. There is no presumption in favour of access. The court may order access if it is in the child’s best interests and is consistent with the plan of care: ss. 56(3)(a) and (b). Thus, if the plan of care is for the child to be adopted, as in this case, any access must be consistent with that plan.
[22] Section 57(1) provides that any person may apply to change an access order “[i]f circumstances have changed significantly since the order was made”. The court may change the order if it finds that circumstances have changed significantly since the order was made and a change is in the child’s best interests: s. 57(3).
[23] These provisions provide the Provincial Court jurisdiction and guidelines in making access orders. In every case, the court must be guided by the “best interests of the child”, which are set out in s. 4 of the CFCSA:
4 (1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child’s best interests, including for example:
(a) the child’s safety;
(b) the child’s physical and emotional needs and level of development;
(c) the importance of continuity in the child’s care;
(d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship;
(e) the child’s cultural, racial, linguistic and religious heritage;
(f) the child’s views;
(g) the effect on the child if there is delay in making a decision.
[24] The appellant says that ss. 4(1)(c) and (d) signal the legislature’s intention that the relationship between a child in care and his or her biological family is to be promoted, thus leading to more liberal access orders. She also refers to “Child and Family Development Service Standards – Children in Care Service Standards”, in which the “policy” of s. 4(d) is stated to include “providing, promoting and supporting opportunities for the child to develop and maintain emotional attachments with parents, siblings, extended family and others who are significant in the child’s life” (at p. 112). The appellant also provided “Practice Standards and Guidelines for Adoption”, published by the Ministry for Children and Families, Adoption Branch, in further support of her contention that the legislative landscape has changed to promote more open adoption relationships, and therefore more liberal access arrangements.
[25] Policy statements of the government are helpful in understanding the approach that child care workers and others involved with children in care take to their role and responsibilities in children’s lives. They are not, however, binding on the court, as are the statutory provisions and the guidelines set out in the common law.
Common Law Principles – New Brunswick v. L.(M.)
[26] In New Brunswick v. L.(M.), the Supreme Court of Canada considered whether a provincial court could make an access order at the same time as it made a permanent guardianship order committing a child to the care of the government. Justice Gonthier, for the Court, reasoned (at para. 17):
Parents have rights in order that they may fulfil their obligations towards their children. When they are relieved of all of their obligations, they lose the corresponding rights, including the right of access. After a permanent guardianship order is made, access is a right that belongs to the child, and not to the parents.
[27] This is consistent with the changing presumptions relating to access found in ss. 55 and 56 of the CFCSA.
[28] Justice Gonthier concluded (at para. 39) that “there is no inconsistency in principle between a permanent guardianship order and an access order”. That principle is codified in ss. 56 and 57 of the CFCSA.
[29] Justice Gonthier then set out principles to guide a court in determining whether access should be granted when a permanent order (such as a continuing custody order under the CFCSA) is made (at para. 39):
My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principle between a permanent guardianship order and an access order. Second, access is the exception and not the rule. Third, the principle of preserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, having regard to all the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by the existence of a right of access. Fifth, access should not be granted if its exercise would have negative effects on the physical or psychological health of the child.
[30] In discussing the importance of preserving family ties, Gonthier J. said (at paras. 48-49):
I conclude that while preserving emotional ties is one of the elements of the definition of the best interests of the child (s. 1(d)), it will only operate in favour of granting access if access is in the best interests of the child, having regard to all the other factors.
Thus, if there is an emotional bond between the child and the parent, it should be preserved, as long as it is not contrary to the other interests of the child such as security or psychological health (New Brunswick (Minister of Health and Community Services) v. B.D. (1994), 145 N.B.R. (2d) 14 (Q.B.)). On the other hand, a child and a parent who are not attached to each other may not be granted access if the effect of doing so would be to disturb the child (New Brunswick (Minister of Health and Community Services) v. S.G. (1997), 193 N.B.R. (2d) 274 (Q.B.)).
[31] With respect to adoption, Gonthier J. said (at para. 50):
If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, access should not be granted (New Brunswick (Minister of Health and Community Services) v. R.N. (1997), 194 N.B.R. (2d) 204 (Q.B.)). In other words, the courts must not allow the parents to "sabotage" an adoption that would be beneficial for the child (Re S.G.N., [1994] A.J. No. 946 (QL) (Prov. Ct.)).
[32] These principles are not inconsistent with the provisions of the CFCSA. They are binding on the Provincial Court in considering whether to make an order for access in favour of a biological parent, when the plan of care is for adoption.
[33] As the appeal judge found, the Provincial Court judge in this case did not apply either the best interests principles found in s. 4 of the CFCSA or the principles set out by the Supreme Court of Canada in New Brunswick v. L. (M.). A judge must exercise his or her discretion judicially, guided by the applicable legal principles. The failure to do so is an error in law.
Conclusion
[34] It follows that I would dismiss the appeal.
“The Honourable Madam Justice Levine”
I AGREE:
“The Honourable Madam Justice Rowles”
I AGREE:
“The Honourable Mr. Justice Low”