IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101019

Docket: 08 5321

Registry:
Victoria

Between:

E.B. by her
Litigation Guardian,
Kimberley Ross Brown

Plaintiff

And

Avtar
Rashi Basi, Micheline Slader, The Provincial Director
of Child Welfare and Her Majesty The Queen in Right of The Province of
British Columbia (Ministry of Children and Family Development)

Defendants

Before:
The Honourable Mr. Justice Macaulay

Oral Reasons for Judgment

In Chambers
October 19, 2010

[1]            
THE COURT: This
proceeding involves tort claims against the alleged assailants of an infant,
E.B., while in foster care as well as against the Provincial Director of Child
Welfare (the “Director”) and the provincial Crown (the “ministry”). E.B.
apparently suffered a severe traumatic brain injury as a result of the alleged
assault and requires an extremely high level of care at all times.

[2]            
By this application, the plaintiffs seek two
orders:

 (1)
That E.B. be transitioned from the home of Angela Hatch to the home of Leona
Cracknell by November 15, 2010 or a date to be agreed between counsel; and

 (2) 
That the Ministry of Children and Family Development continue funding the
special needs care of E.B. with any additional or augmented therapy or care
needs to be funded by the infant’s litigation guardian.

[3]            
At the commencement of the hearing, I directed
counsel to address whether the court has jurisdiction to hear the application
in the context of the tort claims.

[4]            
Without addressing areas that may be in dispute,
it is sufficient for present purposes to set out some of the background as
described by counsel for the plaintiffs.

[5]            
Angela Hatch is a foster parent who currently
cares for and houses infants with disabilities under a ministry program called
the Safe Babies Program. For some time, counsel for the plaintiffs, ministry
counsel, the Director, and others, have been discussing the possibility of
placing E.B. at the home of Leona Cracknell, another Safe Babies foster parent.

[6]            
To this point, the ministry has neither agreed
to nor rejected a placement with Ms. Cracknell. The ministry is also
considering a placement with Lise McIntyre, a third qualified foster parent who
resides in the Sooke area.

[7]            
The litigation guardian for E.B. is her
grandfather. He and the child’s mother apparently want the child to live with
Ms. Cracknell, in part, because her home is much closer than that of the
Sooke foster parent thus making it easier to exercise access. Generally, the
plaintiffs contend that a placement in Sooke would be too remote.

[8]            
Section 6 of the Child, Family and Community
Service Act, R.S.B.C. 1996, c. 46 (the “CFCSA”), provides that
the Director may make a written agreement with a parent who has custody of a
child and is temporarily unable to look after the child in the home. Pursuant
to that section, a voluntary care agreement was put in place governing the
placement of E.B. in the Hatch home. The statutory expiration date for that
agreement was October 16, 2010.

[9]            
An agreement respecting the potential placement
of E.B. at the Cracknell or McIntyre homes must now be under s. 7 of the CFCSA.
The section provides for special needs agreements at the discretion of the
Director. Under such an agreement, the parent may give the care of the child to
the Director and delegate to the Director as much of the parent’s authority as
guardian as necessary to give effect to the agreement.

[10]        
As of last week, the grandfather of E.B. was
prepared to enter into a special needs agreement for the placement of E.B. at
the Cracknell home. When it appeared that was not going to happen before the
expiry of the voluntary care agreement, a lawyer acting for the grandfather,
not counsel on the tort action, wrote to counsel to the Director advising that
his client "intends to move" E.B. when the current agreement expired
October 16. At the same time, counsel acknowledged that the grandfather could
not care for E.B. at his own home.

[11]        
Around the same time, counsel for the plaintiffs
continued to attempt to negotiate a special needs agreement on the same terms
or alternatively, a temporary agreement, by the terms of which this court would
ultimately make the decision if the parties did not reach final agreement. The
Director does not accept that the court has such authority.

[12]        
The Director has now responded by re-removing
E.B. and that step will now result in provincial court proceedings under the CFCSA
that have yet to take place. According to the plaintiffs, those proceedings do
not permit a provincial court judge to address the issues raised on the present
applications. As I understand it, the Director will likely now exercise
authority to allow E.B. to remain in her current foster home and continue to
try to negotiate a special needs agreement for the long-term well-being of the
child.

[13]        
The plaintiffs say, notwithstanding the
extensive provisions of the CFCSA, that the court has continuing parens
patriae jurisdiction to make the orders sought in the best interests of
E.B. The ministry and the Director say that the CFCSA is a complete code
with respect to the care and custody of children in need of protection that
vests in the Director the responsibility to determine what is in the best
interests of children who are in the care of the Director, including whether
removal of a child is necessary to meet the objectives of the CFCSA.

[14]        
According to the ministry and the Director, the
only exception permitting the court to exercise its parens patriae
jurisdiction in the circumstances is if the Director makes decisions in bad
faith or capriciously. Even those, according to counsel, must be raised in an
originating proceeding under the Judicial Review Procedure Act, R.S.B.C.
1996, c. 241 (the “JRPA”), rather than in a tort action.

[15]        
The weight of authority in this province
supports the position of the Director and the ministry. While the factual
patterns differ, the courts in this province have accepted that the CFCSA
and its predecessor legislation is an exclusive, comprehensive code that vests
in the Director, not the court, the role of determining the best interests of
children who are in care, as well as whether removal is necessary to meet the
objectives of the legislation:  see Perteet v. British Columbia
(Superintendent of Family and Child Service), 1988 B.C.J. No. 245 (C.A.),
pp. 7 ‑ 11; L.S. v. British Columbia (Ministry of Children and Family
Development), 2003 B.C.J. No. 626 (S.C.) (reversed on appeal on other grounds,
2004 BCCA 244 at para. 21); and N.K. v. British Columbia (Director,
CFCSA), 2008 BCSC 1321. To the same effect is Melvin Ronald Mabbott v.
Teresa Ann Mabbott, (24 January 2002), Victoria C994349 (B.C.S.C.).

[16]        
While both N.K. and L.S. appear to
be JRPA proceedings, they accurately set out the law relating to the parens
patriae jurisdiction of the court in relation to the CFCSA. In N.K.,
commencing at para. 68, the court reviewed Perteet and L.S., as
well as one other appellate authority, and then succinctly concluded at para.
74:

The parens patriae
jurisdiction of the court can only be invoked to fill in “gaps” in the
legislation, which does not apply here, or if there is compelling proof of bad
faith or capriciousness by the Director affecting the best interest of the
child, which also does not apply here.

[17]        
The plaintiffs say that these authorities and
others to similar effect are distinguishable on one factual basis or another
but the legal reasoning is nonetheless a constant thread and the plaintiffs have
not demonstrated any reason not to apply it here. The plaintiffs also rely on
some of the expansive statements about the reach of the parens patriae jurisdiction
enunciated by the Supreme Court of Canada in E. (Mrs.) v. Eve,
[1986] 2 S.C.R. 388, but there the court was addressing a circumstance to which
no existing legislation applied. The court did not have to grapple with the
effect of the CFCSA or any similar legislation, as I must do here.

[18]        
I am also persuaded that the orders sought are
of a type only available under the JRPA. On the one hand, the plaintiffs
seek to compel the Director or ministry to adopt a particular course of action
when exercising a statutory decision-making power and, on the other, to compel
the expenditure of government monies. Similarly, any attempt to quash the
recent decision of the Director to re-remove E.B. would have to proceed under
the JRPA.

[19]        
As the JRPA requires that such remedies
be sought in a proceeding under that statute, I decline to comment directly on
the likelihood of such applications succeeding but would not want my silence to
be taken as any encouragement for such a step to ensue.

[20]        
In the circumstances, I conclude that I have no
jurisdiction in this proceeding to make either of the orders sought.

[21]        
Is there anything arising?

[22]        
MS. GASH:  Nothing arising, My Lord.

[23]        
MR. SIERECKI:  No, My Lord.

[24]        
MS. SAUNDERS:  No, My Lord, other than I
suppose the issue of costs.
I don’t have any submissions on that.

[25]        
THE COURT:  All right, I will hear you on costs.

 [SUBMISSIONS RE COSTS]

[26]        
THE COURT:  The respondents have succeeded in
their contention that the court does not have jurisdiction to make the orders
sought by the plaintiff in the context of this tort action. With the greatest
of respect to counsel responsible for the bringing of the application, in the
circumstances it ought, in my view, to have been obvious that the application
was inappropriate.

[27]        
I take into account that counsel for the
applicant at the time was made aware of the jurisdictional issues. Taking those
factors into account, it is my conclusion that the two respondents are entitled
to the costs of the application in any event of the cause. Those costs will be
on Scale B.

               “M.
Macaulay J.”                       
The Honourable Mr. Justice Macaulay